The Supreme Court of Georgia (“Georgia Supreme Court”), in its decision filed on September 28, 2020, upheld an almost $46 million Georgia medical malpractice verdict rendered after a two-week trial in 2017 involving the August 2009 birth of the plaintiffs’ daughter, after which the mother suffered a catastrophic brain injury resulting from pulmonary edema leading to full cardiac arrest within days of giving birth.
The Georgia medical malpractice complaint named as defendants only Dr. Angus and Atlanta Women’s Specialists, LLC (“AWS”), although the complaint contained allegations regarding Dr. Simonsen’s conduct and alleged that AWS was vicariously responsible for the acts and omissions of both Dr. Angus and Dr. Simonsen (both were physician-employees of AWS). The complaint did not allege any independent acts of negligence on the part of AWS. On a special verdict form, the jury found that negligence by both Dr. Angus and Dr. Simonsen was a contributing proximate cause of the mother’s injuries.
On appeal, Dr. Angus and AWS contended that the plaintiffs did not sufficiently plead a claim for vicarious liability against AWS based on Dr. Simonsen’s conduct. The Georgia Supreme Court stated, “In the context of a medical malpractice action, a complaint sufficiently pleads a claim for vicarious liability against a medical practice by alleging that the practice is “vicariously liable for the negligence of the ‘physicians that attended [the patient]’ and that ‘the treating physicians were actual and/or ostensible agents or otherwise servants and/or employees of’” the practice … [a] plaintiff need not specifically name in the complaint each physician-employee whose acts or omissions form a basis for the claim of vicarious liability against the medical practice …nothing in the Civil Practice Act required Plaintiffs to name Dr. Simonsen as a defendant in order to seek recovery from Dr. Simonsen’s employer for her negligence based on a theory of vicarious liability. It simply is not and never has been required that a complaint seek to hold liable each negligent nonparty employee of a corporate defendant in order to hold the corporation liable for the negligence of its nonparty employees … Accordingly, the Court of Appeals did not err in holding that Plaintiffs sufficiently pled a claim for vicarious liability against AWS based on Dr. Simonsen’s conduct.”
Dr. Angus also contended that he was entitled under subsection (b) of the apportionment statute, OCGA § 51-12-33, to have the jury apportion damages between him and AWS based on his own percentage of fault and the percentage of fault of Dr. Simonsen. The Georgia Supreme Court held: “a defendant employee like Dr. Angus, who wants to reduce a potential damages award against him by having the jury apportion damages between him and his defendant employer based on an assessment of the fault of a nonparty co-employee, would have to comply with the requirements of subsection (d) of the apportionment statute.”
The Georgia Supreme Court stated: “Subsection (d) (1) requires the trier of fact to consider the negligence or fault of a “nonparty” like Dr. Simonsen in two circumstances: if the plaintiff entered into a settlement agreement with the nonparty (which did not happen here), or “if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.” Thus, if Dr. Angus believed that Dr. Simonsen was wholly or partially at fault for Plaintiffs’ injuries, OCGA § 51-12-33 (d) (2) provided the mechanism for him to obtain an assessment of her fault and apportionment of the damages between them based on their respective percentages of fault. All he had to do was file a pleading at least 120 days before the trial date naming Dr. Simonsen, providing her last known address, and briefly stating the basis for his belief that she was wholly or partially at fault for Plaintiffs’ injuries. See OCGA § 51-12-33 (d) (2) … we hold that a defendant employee like Dr. Angus who wants to reduce a potential damages award against him by having the jury apportion damages between him and his defendant employer based on the fault of a nonparty co-employee must comply with the requirements of subsection (d),” which he failed to do.
Source Atlanta Women’s Specialists, LLC v. Trabue, S19G1138.
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