The Court of Appeals of Georgia, in its opinion filed on March 7, 2019, upheld a Georgia medical malpractice jury’s award in the amount of $46 million for the catastrophic brain injury suffered by a mother who had given birth four days earlier. The Georgia medical malpractice jury had awarded $10 million in economic damages and $18 million each to the two plaintiffs.
The Underlying facts
The 38-year-old woman had gone to the hospital on August 21, 2009, for induction of labor due to hypertension. She gave birth by cesarean section delivery. The child was delivered without complications. However, the mother’s blood pressure remained persistently elevated for which an infusion of magnesium sulfate and a loading dose of intravenous fluids were ordered. Labetalol was prescribed and the magnesium sulfate was discontinued. A second doctor took over the care of the mother after being informed of her recent elevated blood pressure, shortness of breath, decreased urinary output, and pulse oximetry of 95 percent. A third doctor later assumed responsibility for the mother’s care. He evaluated her and increased the Labetalol.
At 5:00 p.m. on August 25, 2009, the third doctor ordered the insertion of an intravenous line, lab tests, and a spiral CT scan to rule out a pulmonary embolism. En route to the CT scan, the mother sustained a respiratory arrest, which progressed to a full cardiopulmonary arrest, and she coded at 5:43 p.m. Resuscitation efforts were then commenced. A subsequent chest x-ray revealed pulmonary edema. As a result, the mother suffered a hypoxic brain injury and has been rendered totally disabled.
The plaintiffs’ Georgia medical malpractice lawsuit alleged that the three doctors were agents of the defendant medical practice, each acting within the scope of their agency, when they proximately caused the plaintiff’s injuries so that their wrongful acts and omissions are imputed to the defendant medical practice, which is vicariously liable for their acts and omissions.
The plaintiffs alleged that the second doctor took over the plaintiff’s care at 8:00 a.m. on August 25, 2009, but saw her only once during the shift at 10:30 p.m., despite several calls from nurses advising of serious problems with the plaintiff’s condition, which put her at a foreseeable risk of pulmonary edema and cardiopulmonary complications. The second doctor was not named as a defendant in the Georgia medical malpractice lawsuit but the plaintiffs nonetheless listed the question of the second doctor’s negligence as one for jury determination, specifying 41 allegations of negligence against her.
The defendants contended that the trial court erred by permitting the jury to consider whether the second doctor’s negligence was a contributing proximate cause of injury to the plaintiff. The Georgia Appellate Court held: “the trial court properly concluded that the complaints satisfy Georgia’s forgiving notice-pleading requirements with respect to the vicarious liability claim against [the defendant medical practice] for the negligence of [the nonparty second doctor],” finding that the original and renewal complaints specifically identified the second doctor as an agent or employee of the defendant medical practice, acting within the scope of her employment or agency, such that her acts and omissions are imputed to the defendant medical practice, which is vicariously liable for the resulting injuries and harm to the plaintiff, and the pleadings set forth factual allegations to support the plaintiffs’ vicarious liability claims against the defendant medical practice for the second doctor’s actions.
The Georgia Appellate Court further held that the trial court erred by ordering a new trial as to apportionment because it is undisputed that the defendants failed to give notice of nonparty fault as required by OCGA § 51-12-33 (d) (OCGA § 51-12-33 (d) (1) provides in relevant part that “[n]egligence or fault of a nonparty shall be considered 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”). The Georgia Appellate Court held: “By failing to give the mandatory notice required by that Code section, the defendants waived their right to apportion damages in that manner. Thus, the trial court erred by granting a new trial as to apportionment …”
If you or your baby suffered a birth injury (or worse) during labor and/or delivery in Georgia or in another U.S. state, you should promptly find a birth injury lawyer in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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