In 2018, Dr. Bradford Wall, a partner at Georgia Bone & Joint Surgeons, P. C. (“GBJ”), performed a successful total knee replacement on Margaret Keel. During her overnight stay at GBJ, she was prescribed narcotic pain medications for her
recovery. The narcotics can slow a patient’s breathing rate, which is a risk for patients like Keel, who suffer from obesity and sleep apnea, and require a continuous positive airway pressure (“CPAP”) machine.
GBJ staffed two nurses, Valerie Blankenship and Jackie Croft, to provide care for the overnight patients. At approximately 11:00 p.m., Blankenship went into Keel’s room to provide antibiotics and discovered that Keel’s CPAP mask had been removed and that Keel was unresponsive. Blankenship could not find Keel’s pulse and called for Croft. When Croft arrived, they began performing cardiopulmonary resuscitation (“CPR”) on Keel. At approximately 11:17 p.m., Blankenship called emergency services.
Blankenship procured, and Croft administered, Narcan in an attempt to counteract the narcotics Keel had in her system, then Blankenship resumed performing CPR. An ambulance arrived at 11:21 p.m.. Emergency medical technicians determined that Keel was in ventricular fibrillation and shocked her using the defibrillator prior to leaving GBJ for the hospital. While at the hospital, Keel was put into a medically induced coma, in order to “save [her] brain.” Ultimately, Keel suffered a hypoxic brain injury due to her cardiac arrest while in recovery at GBJ. As a result, Keel suffers from significant limitations on her mobility and independence, and she had to move into an assisted living home.
Keel filed a lawsuit against GBJ and Blakenship for medical malpractice, and she later added Wall as a defendant. Following the trial, the jury found Wall and Blankenship not liable, but found GBJ liable and awarded Keel $6,500,000. In entering judgment, the trial court added prejudgment interest in the amount of $573,791.73. GBJ appealed.
The Court of Appeals of Georgia stated in its June 26, 20225 opinion that Keel’s expert, Dr. Timothy Harwood, testified that insufficient staffing by GBJ breached the standard of care and made it impossible for Croft and Blankenship to perform a full ACLS code. Further, he testified that, had a full ACLS code been performed, Keel’s condition would have improved. “Accordingly, this claim of error lacks merit.”
GBJ also argued on appeal that the trial court erred in its attorney fee award of $1,820,000 because it was “excessive and contrary to law.” The Georgia appellate court noted that on February 10, 2021, after the Georgia medical malpractice lawsuit had been pending for over two years, Keel sent a $2,000,000 demand to the defendants pursuant to OCGA § 9-11-68. The offer expired on March 12, 2021, and GBJ did not accept the offer of settlement.
Following the jury’s verdict of $6,500,000, which was greater than 125 percent of Keel’s offer of settlement, Keel filed a motion for attorney fees and expenses pursuant to OCGA § 9-11-68 (b) (2). In support of her motion for attorney fees, Keel submitted her attorney client agreement, which provided that her counsel was entitled to 40 percent of her recovery. She also submitted affidavits from her attorneys, who described their experience and provided estimates of the hours worked by the counsel and a paralegal in their practice before and after Keel made her offer of settlement.
Keel’s counsel also averred that the 40 percent contingency fee arrangement was reasonable and customary for a case of this complexity and magnitude.
The Georgia appellate court stated that the trial court calculated the “pro-rata portion of the work performed after expiration of the offer. . . . Approximately 70% of the work done by [Keel’s] attorneys and their paralegals was performed after the rejection of the offer of settlement. Therefore the fee due under that approach would be $1,820,000 (i. e. 70% of $2,600,000).” The Georgia appellate court stated: ““[T]he trial court was entitled to consider [Keel’s] contingency fee agreement with [her] attorneys and the amount it would have generated as evidence of their usual and customary fees[.]” Couch, 295 Ga. at 484 (3) (a). Further, the trial court did not rest its award of attorney fees solely on the contingency fee arrangement. It looked also at evidence of counsel’s hours and rates to determine the value of attorney fees rendered and to assess whether the contingency fee amount was appropriate. See id. Keel “presented not only her contingency-fee agreement but also evidence that the contingency fee was customary for this kind of case, and evidence of the amount and type of work done by the many attorneys who represented her.” Taylor v. Devereux Foundation, 316Ga. 44, 94 (VIII) (B) (885 SE2d671)(2023). Accordingly, “we cannot say that the trial court erred by concluding that the standard . . . articulated in Couch was met.” Id. The trial court acted within its discretion in its attorney fee award.”
Source Georgia Bone & Joint Surgeons, P. C. v. Keel, A25A0381.
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