The Supreme Court of Georgia (“Georgia Supreme Court”) held in its opinion filed on March 5, 2018 that a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice, and the Georgia Court of Appeals erred in concluding that an ordinary negligence instruction was authorized by evidence that a doctor defendant responded inadequately to medical data provided by certain medical equipment during a medical procedure.
In the case the Georgia Supreme Court was deciding, the defendant anesthesiologist and pain management specialist (“the defendant”) performed an epidural steroid injection (ESI”) on a woman on September 16, 2008, for her chronic back pain. She was given a sedative and then placed face down on a surgical table.
The defendant administered propofol and started the procedure, at which time the patient’s blood oxygen saturation level was recorded at 100 percent. Shortly after the defendant began the procedure, the pulse oximeter that was used to monitor the patient’s blood oxygen saturation level sounded an alarm, indicating a drop in the level of oxygen in her blood. A surgical technician in the operating room at several points tried to turn up the oxygen but each time the defendant told her to return to the imaging machine that she had been operating.
At the direction of the defendant, a nurse who was assisting turned up the oxygen being administered to the patient. The nurse began performing a jaw thrust to open the patient’s airway by repositioning her jaw, but had difficulty doing so. The defendant paused his work of administering the epidural and assisted with the jaw thrust. The defendant told the nurse that the patient was breathing and her airway was good.
While the defendant was at the head of the surgical table, holding the patient’s jaw to maintain an airway, the pulse oximeter was sounding an alarm and registering zero, and the blood pressure monitor was recycling and inflating repeatedly without registering a reading.
The defendant advised the nursing director (who had been summoned to the operating room by the nurse) that the pulse oximeter was malfunctioning and did not show the patient’s true oxygen saturation, and that the patient had a pulse, was breathing, and was fine. Nonetheless, the nurse retrieved a second pulse oximeter at the nursing director’s directive and the nursing director placed it on the patient’s toe, but it also registered a reading of zero oxygen saturation. The defendant nonetheless continued to insist that everything was fine and resumed the procedure as various staffers attempted to physically maintain the patient’s airway. The procedure was completed 18 minutes after it began.
After the procedure was completed, the patient’s blood oxygen level was in the low 50-percent range. She was given drugs to reverse the effects of some of the drugs she had been given previously, and the defendant began manually ventilating the patient with a bag valve mask. Within a couple of minutes, the patient’s oxygen levels rose to the 90s and she was able to maintain that level with oxygen being administered.
The patient was subsequently transferred to a hospital where the admitting physician diagnosed her as having suffered acute respiratory failure. She remained profoundly cognitively impaired and a quadriplegic for six years until her death in September 2014.
The Georgia medical malpractice plaintiffs presented evidence that the patient had suffered a catastrophic brain injury caused by oxygen deprivation during the ESI and that she died from complications of that injury. The plaintiffs alleged both medical malpractice and ordinary negligence, including that the defendant improperly administered propofol to the patient, who was obese and had sleep apnea, without positioning another anesthesiologist or a nurse anesthetist at the head of the table to monitor her airway; that the defendant failed to respond appropriately when the patient experienced respiratory distress; and, that the defendant failed to contact emergency medical services promptly.
During the Georgia medical malpractice trial, the plaintiffs requested an ordinary negligence jury instruction, citing the “obvious” obligation “to save the patient if they’re not breathing” and misrepresentations that the defendant made to other healthcare providers. The defendants objected to the ordinary negligence jury instruction, arguing among other things that it was not warranted by the evidence.
The trial judge instructed the Georgia medical malpractice jury regarding ordinary negligence, and the jury subsequently returned its verdict in favor of the plaintiffs in an amount just under $22 million. The defendants appealed, and the Georgia Court of Appeals affirmed, stating in a split-decision that a jury could have found ordinary negligence based on the defendant’s insufficient response to the readings of the two pulse oximeters and blood pressure monitor, as well as his failure to inform emergency responders and hospital staff about the patient’s possible oxygen deprivation in the operating room.
The Georgia Supreme Court Opinion
The Georgia Supreme Court held that the Court of Appeals erred in deciding that whether and how to respond to medical data from medical devices during a medical procedure does not require medical judgment. Accordingly, the trial court erred to the extent that it instructed the jury on ordinary negligence based on this theory. Because the jury returned a general verdict and the Georgia Supreme Court thus could not determine whether the jury relied on this erroneous theory or not, the Georgia Supreme Court did not consider whether the plaintiffs’ alternative theory of ordinary negligence, i.e., that the defendant made misrepresentations to other providers, supported an ordinary negligence charge. The Georgia Supreme Court further held that the ordinary negligence charge was harmful to the defendants and ordered a retrial.
The Georgia Supreme Court explained that to the extent that the trial court’s ordinary negligence charge permitted the jury to find the defendants liable based on the presumption that whether and how to respond to medical data from medical devices does not require medical judgment, that instruction was not warranted by the evidence. The ordinary negligence instruction invited jurors to decide the liability of the defendants without consideration of the strictures on claims for professional malpractice, such as the need for expert testimony to overcome the presumption of due care, and the bar on finding liability based solely on hindsight.
Source Southeastern Pain Specialists, P.C. v. Brown, S17G0732, S17G0733, S17G0737.
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