The Court of Appeals of Georgia, in its January 31, 2025 opinion, affirmed the award of $1,990,567.69 in attorney fees and expenses under OCGA § 9-11-68, Georgia’s offer of settlement statute, in a stillborn medical malpractice case. Plaintiff Jullyene Santos Keitt, individually and as the natural mother of her deceased child, had sued The Kane Clinic, LLC d/b/a International Women’s Health Services-CIMA (“Clinic”), seeking damages for the wrongful death of her child and for her own pain and suffering, after the child was stillborn at 38 weeks of pregnancy.
Following a default judgment entered against the Clinic as to liability, a jury awarded Keitt $1 million for her pain and suffering and $4.92 million for her child’s wrongful death. Keitt filed a motion for OCGA § 9-11-68 attorney fees and expenses on the ground that the final judgment in her favor exceeded 125 percent of her $1 million offer of settlement.
OCGA § 9-11-68 (b) (2)
The Georgia offer of settlement statute provides, in relevant part: “If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of the rejection of the offer of settlement through the entry of judgment.”
The offer of settlement statute’s purpose is to encourage tort litigants to make and accept good faith settlement proposals to avoid unnecessary litigation and advance Georgia’s strong public policy of encouraging negotiations and settlements. Nevertheless, because the statute is in derogation of common law, it must be strictly construed against the award of attorney fees and costs and not extended beyond its plain and explicit terms.
In the medical malpractice case that the Georgia appellate court was deciding, the defendant contended that the plaintiff’s offer of settlement failed to satisfy the statute because it did not clearly identify either (a) the party or parties making the offer or (b) what claim or claims would be resolved if the defendant accepted it. The Georgia appellate court responded: “Here, read as a whole, Keitt’s offer of settlement is subject to only one reasonable interpretation: that the offer sought to settle all claims alleged in her complaint, both in her individual capacity and as the mother of her deceased child … the only reasonable interpretation of the offer was that, if accepted, “all claims alleged in the Complaint” by Keitt, “Individually and as the Natural Mother of Baby Santos Keitt,” and against the Clinic, would be dismissed.”
The Court of Appeals of Georgia held: “For the above reasons, the Clinic has not shown that the trial court erred when it granted Keitt’s motion for OCGA§ 9-11-68 fees and expenses, and we therefore affirm the court’s judgment. Judgment affirmed.”
The Kane Clinic, LLC v. Keitt, A24A1285.
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