CSKL’s Eric Frisch Interviews R&D Strategic Solutions’ James McGarity: A Jury Consultant’s Take on COVID-19

Recently CSKL Health Care Practice Group Leader Eric Frisch had the opportunity to interview R&D Strategic Solutions’ James McGarity. James and Eric discussed potential effects of the COVID-19 pandemic on jury pools and seated juries.

James, a nationally renowned Jury Consultant, is a partner in R&D Strategic Solutions. James has been studying jury behavior and trial strategy since 1999, and is a recognized expert in medical malpractice cases. In addition to consulting on more than two thousand medical malpractice cases, James has consulted on many other civil and criminal matters, including product liability, premises liability, copyright/patent litigation, white-collar crime, and many other types of litigation in venues across the country. Mr. McGarity has assisted clients with jury research, case strategy preparation, jury selection, voir dire question development, witness preparation, and post-verdict analyses. He is an expert in research methodology and survey design, and has been a speaker at numerous CLE events and legal conferences, including the Alabama Bar Institute for Continuing Legal Education, the Arkansas Association of Defense Counsel, the Georgia Bar Association, the Virginia Association of Defense Attorneys (VADA), the Memphis Bar Association, Emory University School of Law, and the University of Montana School of Law Advanced Trial Advocacy Program. James has also appeared frequently on Court TV, as a guest expert in jury behavior on shows hosted by Yodit Tewolde, Julie Grant, Seema Iyer, and Vince Politan, covering high profile trials across the country. R&D Strategic Solutions.

ERIC:    James, professionally, how is your pandemic going? Have you been working on jury research projects?

JAMES:    Our work slowed down a bit during the first few months of the pandemic, but has picked up substantially in the last few months. We have been doing jury research projects over the last year, but quite a bit more since the beginning of the year.

ERIC:    From the exercises, what is the general mood of the jury pool out there?

JAMES:    Uncertainty is the general mood. Jurors are keeping a closer eye on safety and safety related issues, having lived through such a significant event just this far, and we don’t know when it will be over for sure. There is also uncertainty about when the pandemic is going to end, how we will come out of it financially and in terms of our health, and how our economy will rebound from the lockdown periods. There is even more focused uncertainty among the population of individuals who had the greatest concern about their ability to withstand the financial impact of the pandemic (i.e., job furloughs, business interruption, survivability of certain industries, etc.). Many are also concerned about the effectiveness of the vaccine as well as any potential future problems associated with any side effects, and forthcoming variants of the virus. There is just a lot of uncertainty in everyone’s minds today. But at the end of the day, jurors want reassurances that everyone is making their own safety and the safety of others a priority. 

ERIC:    We have seen significant life events affect jurors in the past, but usually the effect fades over time. Things like the 9/11 attacks come to mind. Is the pandemic and the related “lockdowns” the same or different that past life events for jurors?

JAMES:    Different, because as significant as other life events like 9/11 have been, this pandemic is more personalized for us because it has touched each of our lives individually in a more “real” way; we’ve been confined to our homes, centers of business have been shut down, our schools and jobs have been turned upside down, not to mention the many people each of us know who have been diagnosed with COVID-19 with differing recovery results. It’s been a much more impactful event for everyone (not to minimize the significance of major events like 9/11).

ERIC:    Let’s talk about civil juries. Where are jurors’ heads in terms of assessing liability, causation, and damages these days?

JAMES:    Safety and taking active steps to protect themselves and others is a key issue. Part of this pandemic experience has imbued in us how important compliance with safety rules and practices truly is—because so much of the spread and duration of the virus has been ascribed to people not being compliant with safe practices (e.g., safe distancing, hand sanitizing, staying home, wearing masks, etc.). The reported drop in cases has also been, for many, attributed to the more recent increased compliance with safety guidelines. It is important to note, however, that defendants are not the only ones jurors are “putting under the microscope” more in civil cases—plaintiffs are experiencing at least as much scrutiny today as jurors examine which parties exercised the best judgment when applying their knowledge and control in the circumstances of each case. Damages are also trending upward as jurors are taking into account the uncertainty they are living with—they want to make sure that their damage awards cover any future potential ongoing developments (e.g., need for future treatments, subsequent declines in condition, unforeseen complications, etc.)

ERIC:    Are you seeing any regional differences? For example, a jurors’ feelings about civil justice being affected by where they spent their pandemic?

JAMES:    Yes. Jurors in the South, Southwest and Southeast tend to be a little less conservative about following the “letter of the law” when it comes to following the COVID guidelines, and often see them as unfair or unnecessary intrusions on their personal lives.

 ERIC:    As you know, my focus is on professional liability, including health care providers. What are you seeing in terms of jurors’ attitudes towards professionals and healthcare?

JAMES:  Jurors have an increased appreciation of healthcare professionals, as they have been working very hard to treat COVID-19 patients and now getting people vaccinated. But attorneys in your area of practice need to proceed with caution, as there has been a lot of talk amongst professional liability defense lawyers in health care of a “halo effect” that favors healthcare professionals (where someone is less vulnerable to criticisms because they are held in a more favorable light by others). While healthcare providers may be held in higher esteem by jurors, this does NOT equate to a “free pass” to a defense verdict in medical malpractice cases. Jurors still evaluate each case on its own merits, and as I said earlier, jurors want to know how carefully each party followed safety practices. Also, trials have been delayed during the pandemic, so we haven’t yet seen any reliable evidence that tells us to what extent healthcare providers are seeing the benefits of any “halo effect.”

ERIC:    Is there one thing on jurors’ minds that comes up about the pandemic?

JAMES:    One interesting tidbit, the question “How concerned are you about your/your family’s financial stability as a result of the impact of the COVID-19 pandemic?” has been predictive of verdict orientation in just about every type of case we’ve researched (med mal, premises liability, product liability, even securities cases) since the start of the pandemic. Those who are “greatly” and “somewhat” concerned tend to be plaintiff-oriented, as they have greater empathy for plaintiffs.

ERIC:    From all of your research, what is the big take-home theme in terms of jury research going forward?

JAMES:    Safety first. In a civil dispute, jurors will still evaluate the disparity between the parties’ relative knowledge of and control over the circumstances that produced the dispute. But in this COVID-19/pandemic era, the party that is perceived to have “gone the extra mile” in terms of looking out for others and foreseeing the potential for danger will most likely be the party that jurors are more motivated to fight for.

Georgia Court of Appeals Affirms Attorney Fee Award for Defendants in Malpractice Case

The Georgia Court of Appeals has affirmed an award of over $177,000 in attorney’s fees to the defendants in a medical malpractice case under O.C.G.A. §9-11-68. In Anglin v. Smith, plaintiff alleged that she suffered loss of leg function and urinary incontinence after a second injection into her lower back. In a previous version of the case, the Court of Appeals wrote “the crux of the case became . . . that [plaintiff] was paralyzed and incontinent when she las saw [Dr. Smith] and for several days thereafter.” However, the medical records and treating providers confirmed that plaintiff was able to walk and was not paralyzed. The only evidence that plaintiff was paralyzed came from plaintiff herself and plaintiff’s experts relied exclusively on this to support their standard of care criticisms.

During discovery, defendants made a $1000 offer of judgment, which was rejected. After a defense verdict (affirmed on appeal), defendants moved for attorneys’ fees under O.C.G.A. §9-11-68. Importantly, defendants did not move for damages based on frivolity under Section 9-11-68(e). Rather, the motion was based on the statutory offer only. The trial court ruled that the offer was a good faith offer and awarded the fees.

The Court of Appeals affirmed, holding that the trial court did not abuse its discretion in awarding the fees. Because the fees were awarded pursuant to a statutory offer of judgment, the trial court only needed to rule that the offer was made in good faith. Here, the trial court was authorized to determine, based on the whole of the record, that defendants felt strongly they would win the case and that was sufficient to support a finding of good faith. Plaintiff argued the trial court was required to set forth certain “objective factors” justifying the award. However, the Court of Appeals opined that the “objective factors” apply only to orders denying fees, not awarding them.

Take-Home: There is no brightline test for a “good faith” offer by defendants under Section 9-11-68, but this case, along with others like it, show that a trial court is empowered with broad discretion to award fees even when the evidence is contested.

The case is Anglin v. Smith, ___ S.E.2d ___, 2020 WL 7692151 (Ga.Ct.App. December 28, 2020).

Georgia Supreme Court Overrules Respondeat Superior Rule

In a significant case, the Georgia Supreme Court has overruled the long-standing rule that an employer cannot be held independently liable for negligent entrustment, training, hiring, or supervision if it admits the employee was acting in the course and scope of employment. The underlying case involved a truck accident. The defendant employer admitted that the truck driver was its employee and acting with in the course and scope of employment. The employer moved for partial summary judgment on claims for punitive damages and negligent entrustment, hiring, training, and supervision. The trial court granted the motion based on the long-standing rule known as the Respondeat Superior Rule. Plaintiffs opposed the motion, claiming that Georgia’s apportionment statute abrogated the Respondeat Superior Rule in favor of apportioning to the employer and employee. The Georgia Court of appeals affirmed the judgment.

A majority of the Georgia Supreme Court reversed and held that the Respondeat Superior Rule is inconsistent with apportionment of damages. The Court reasoned that a claim for negligent entrustment is an independent act by the employer that, under the plain language of the statute, should be for the jury to consider when deciding percentages of fault between the plaintiff and the defendants. In particular, negligent entrustment involves the breach of a legal duty of the employer, namely, not to lend a vehicle to another to drive when there is actual knowledge that the driver is reckless or incompetent.

In a dissent, Justice Carla Wong McMillan wrote that the apportionment statute does not abrogate the Respondeat Superior Rule because apportionment applies at trial, while the Respondeat Superior Rule applies at the summary judgment phase. Justice McMillan also wrote that the Court has previously held there is no apportionment of damages when the fault is indivisible, as it is in vicarious liability situations, noting specifically the Loudermilk decision.

Take-home: This case breaks wide open claims for negligent hiring, training, and supervision in a wide variety of contexts. It also demonstrates the need for the General Assembly to revisit the apportionment statute to fulfil the stated purpose. That’s 2020 for you.

The case is Quinn v. Hulsey, ___ S.E.2d ____ (Ga.Sup.Ct. November 2, 2020).

Georgia Court of Appeals Applies Gross Negligence Standard to Shoulder Dystocia Case

The Georgia Court of Appeals reversed the denial of summary judgment to an obstetrician for care related to a delivery complicated by shoulder dystocia. Plaintiff presented to Wellstar Kennestone Hospital for labor and delivery. Although the opinion is light on details, the inference is that the labor was uncomplicated until delivery of the shoulders. After shoulder dystocia was encountered, the obstetrician resolved it within 40 seconds using generally accepted maneuvers. The baby suffered injuries and the parents sued for medical malpractice.

Defendants moved for summary judgment, arguing that the gross negligence standard under O.C.G.A. §51-1-29.5 should apply. That statute reads, in part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

Defendants argued that all emergency medical care provided in an obstetrical unit is governed by the gross negligence standard. Defendants further argued that the limiting phrase “immediately following the evaluation or treatment of a patient in a hospital emergency department” only modifies “in a surgical suit” and not “obstetrical unit.” The Court agreed and reversed.

Take-home: This is a significant change in the application of this statute. Virtually all “birth injury” cases involve allegations of obstetrical emergency and applying the higher standard of care and burden of proof of Section 51-1-29.5 will provide additional protection to obstetrical providers. It remains to be seen whether Plaintiffs petition for certiorari and, if so, whether it is granted.

The case is Ob-Gyn Associates, P.A. v. Brown, __ S.E.2d ___ 2020 WL 6253453 (Ga.Ct.App. October 23, 2020).

Georgia Supreme Court Affirms Practice Group is Vicariously Liable for Unnamed Doctor

The Georgia Supreme Court has affirmed that the plaintiffs in a medical malpractice case could hold a practice group vicariously liable for the alleged malpractice of one of its employed physicians who was not named in the lawsuit. In the case of Atlanta Women’s Specialists, LLC v. Trabue, Shannon Trabue suffered a brain injury as a result of a cardiac arrest in the days after giving birth. Ms. Trabue was treated by two physicians – Dr. Angus and Dr. Simonsen – both of whom were employees of Atlanta Women’s Specialists (“AWS”).

Plaintiffs sued Dr. Angus and AWS, but included allegations in the Complaint that AWS was vicariously liable for both Dr. Angus and Dr. Simonsen. Dr. Simonsen was not a separately named party in the complaint. At trial, defendants’ counsel asked the trial court to instruct the jury on apportionment of damages between Dr. Angus and Dr. Simonsen, as an unnamed party. Defendants did not file a notice of non-party at fault within the statutory time period. The trial court denied the motion. The jury returned a verdict for plaintiffs and found that both Dr. Angus and Dr. Simonsen were at fault. Defendants appealed and the Court of Appeals affirmed.

The Supreme Court affirmed the Court of Appeals’ decision. First, the Supreme Court held that plaintiffs adequately pled AWS’ vicarious liability for Dr. Simonsen. In so doing, the Court affirmed the general rule that 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 employer. The Court rejected the argument that the affirmative statement in the complaint that Dr. Angus was directly liable excluded any allegation that Dr. Simonsen was also liable under notice pleading.

The Court also affirmed the trial court’s ruling that AWS could not seek apportionment by the jury for Dr. Simonsen’s negligence. Notably, the Court seemed to side-step the critical question – whether it would have been appropriate at all to have the jury apportion between Dr. Angus and his co-employee – by holding that defendants’ failure to give statutory notice was fatal. To this end, the Court held 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).”

Justice Bethel dissented (a rarity in Georgia jurisprudence as of late) and Justice Warren concurred fully in parts 1 and 2 and in the judgment only in part 3. In his dissent, Justice Bethel wrote that AWS should have been permitted to apportionment with Dr. Angus based on subsection (2) of O.C.G.A. §51-12-33. That subsection reads “in its determination of the total amount of damages to be awarded, if any, shall … apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” The majority held that subsection (b) is not a standalone provision, but must be read in conjunction with the notice provision of subsection (d). Justice Bethel disagreed, writing that the hole in the majority’s reasoning is that it essentially imposes joint and several liability on AWS and Dr. Angus.

Take-home: This is an important case for all parties. On the defense side, the outcome can be avoided by filing a notice of non-party at fault if any other, unnamed employee might also have contributed to the outcome. On the plaintiff side, more employees will be named to avoid the potential hole of a non-party at fault. We are not addressing the potential conflicts of interest, which are very fact specific.

The case is Atlanta Women’s Specialists, LLC v. Trabue, ___ S.E.2d ___ 2020 WL 5752376 (Ga.Sup.Ct. Sept. 28, 2020).

Georgia Court of Appeals Affirms Summary Judgment for Psychiatrist

The Georgia Supreme Court has affirmed summary judgment for a psychiatrist on a wrongful death claim filed by the widow of a man killed in a car accident by the psychiatrist’s patient. The patient was under the care of the psychiatrist for alcoholism and had been prescribed Lorazepam. The patient returned to Atlanta from a trip and scheduled an emergency visit with the psychiatrist. The patient instead went to a bar before going to the appointment. After the appointment, he returned to the bar and drank more. Later that evening, after drinking more, the patient struck Plaintiff’s husband and killed him.

Plaintiff sued the psychiatrist in “ordinary negligence” and professional malpractice. The trial court granted the psychiatrist summary judgment and Plaintiff appealed. The Court of Appeals affirmed, holding that there was no claim for “ordinary” negligence, either under the “Bradley Center” rule or because of violation of various statutes regarding involuntary commitment. In a word, the Court reaffirmed the rule that a third party cannot sue a professional for the acts of the professional’s patient because the duty to control the patient does not arise unless the professional exercises “legal authority” to “place restraints on the liberty” of the patient. Here, the patient was a voluntary outpatient, so the control element was missing. The Court also affirmed summary judgment on the professional malpractice claim because of lack of privity between Plaintiff and the provider.

Take-home: this case seems to strengthen the general rule regarding professional liability to third-parties after a slight weakening of the rule in cases like Peterson v. Reeves.

The case is Stanley v. Garrett, ___ S.E.2d ___, 2020 WL 5554398 (Ga.Ct.App. Sept. 17, 2020).

Georgia Supreme Court Affirms Assumption of Risk Charge in Malpractice Case

The Georgia Supreme Court has held there was enough evidence to support a charge of assumption of the risk in a medical malpractice case. Plaintiff claimed he fainted and fell out of a deer stand while hunting five days after heart surgery. Plaintiff and his wife sued his cardiologist, claiming he was given too much medication, which caused him to faint. A trial, the jury was charged on assumption of risk and the jury returned a defense verdict. The Court of Appeals reversed. The Supreme Court granted certiorari and held that there was enough evidence to charge the jury.

The evidence showed that Plaintiff knew he had surgery for cardiac issues and that he had been instructed not to engage in strenuous activity, including not lifting more than ten pounds, for at least seven days. Plaintiff disputed that he was told this and claimed he was not told about the specific risk of fainting. The Court of Appeals held that it was error to give the charge because “climbing into a deer stand was not a risk associated” with the physician’s duty, but fainting was a “side effect of the medication.” The Court of Appeals further wrote that the physician’s instructions not to engage in strenuous activity did not establish that Plaintiff knew he risked fainting if he did not follow them.

The Supreme Court affirmed the general rule that only slight evidence is necessary to justify a jury charge. And the Court held that it did not need to decide whether the evidence established assumption of the risk, only whether there was sufficient evidence to give the charge. Plaintiffs argued that because he did not know the specific risk of fainting, the charge should not have been given. The Court rejected this argument, reasoning that the Plaintiff does not need to know of the specific risk, only “a risk of physical injury” to get the charge of assumption of the risk because knowledge of any such risk amounts to a failure to exercise ordinary care and diligence for their own safety.

Take-Home: this was a battle over general v. specific risk. The Court’s ruling that a plaintiff need only be aware of a risk associated with their own conduct after medical treatment has wide-reaching implications for trial, especially in cases involving informed consent and discharge instructions.

Daly v. Berryhill, _ Ga. ___, 843, S.E.2d 870 (2020).

Georgia Court of Appeals Holds No Affidavit for Negligent Credentialing

The Georgia Court of Appeals has held that an expert affidavit is not required to support some claims of negligent credentialing. Plaintiffs sued a physician, his employer, and the hospital where he had privileges, claiming injuries from an allegedly negligent cardiac catheterization. Plaintiff asserted the physician had not performed a sufficient number of interventional procedures to be granted staff privileges by the hospital. Plaintiffs filed an expert affidavit with the complaint, but the affidavit did not address the negligent credentialing claim.

The hospital moved to dismiss arguing, among other things, that an expert affidavit was required for the negligent credentialing claim under O.C.G.A. §9-11-9.1. The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals held that credentialing can include professional review in the form of peer review or medical review of the quality of surgeries. However, Plaintiffs alleged in this case that the question was the number of surgeries, not the quality of care. Because a non-professional could count the number of surgeries, this did not involve medical or professional judgment. Accordingly, an affidavit was not required.

Take-Home:

It is a bit surprising the Court addressed the legal question, since, in general, the rule is that an expert affidavit need only address one negligent act or omission to be sufficient. This case could narrow the seemingly broad protection of peer review and medical review activities in the credentialing context if actual review of the quality of care is not involved.

The case is Houston Hospitals, Inc. v. Reeves, ___ S.E.2d ____, 2020 WL 351822 (June 29, 2020).

Georgia Court of Appeals Affirms Defense Verdict

The Georgia Court of Appeals affirmed a final judgment in favor of a neurosurgeon against a litany of alleged evidentiary errors at trial. In the case of Haskins v. Georgia Neurosurgical Institute, the plaintiff underwent lumbar surgery for a herniated disc. After surgery but in the operating room, the patient was able to move his feet. He was taken to recovery area, where, 30 minutes later, he could no longer move his feet. The surgeon ordered an MRI to look for a hematoma or spinal cord as a cause of cauda equina syndrome. The patient went back to the operating room, where a laminectomy was done. Following the second surgery, the patient continued to experience deficits.

At trial, the patient alleged the surgeon violated the standard of care by over-retracting during the first procedure and performing the wrong procedure to start. Defendants denied the allegations and put up expert witness testimony that a possible cause of the deficits was a spinal cord stroke. Plaintiff filed a motion for new trial, which was denied and affirmed on appeal.

Plaintiff first contended that the trial court erred in permitting the defense to cross-examine his expert witness with an article written by the witness’ partners. The Court held that this was harmless error because the article did not mention stroke as a cause of CES but was a general article that benefited both sides.

Next, Plaintiff complained that the trial court erred by allowing Plaintiff to be cross-examined on the consent form he signed before surgery. Plaintiff opened the door to the exam but testifying that he did not been provided with consent paperwork. The trial court also gave a jury charge stating that consent was not a defense. Accordingly, there was no harmful error.

Plaintiff then alleged the trial court erred in excluding a rebuttal witness who had not been identified in discovery and permitting the defense to read a deposition for which there was no signature by the witness. The Court held that both of these were harmless, if they were error at all.

Importantly, Plaintiff contended that the defense theory about a spinal cord stroke as the cause of the CES was speculative. The Court held that Plaintiff was confusing its burden of proving causation during the case-in-chief with the defense burden to establish the reliability of expert testimony. Notably, the Court affirmed earlier cases that the defense does “not bear the burden of proving causation” and that the defense may offer expert testimony “suggesting alternative causes” to rebut more specific testimony.

Take-Home:

 This case reaffirms the long-standing rule that trial court errors must result in prejudice to be overturned on appeal. And it reaffirms the specific rule that the defense does not bear the burden of proving alternative causation with the same standard applicable to Plaintiff.

The case is Haskins v. Georgia Neurosurgical Institute, Inc., 2020 WL 3445715 (June 24, 2020).

 

Georgia Legislature Enacts Nursing Home Reform, Extends Medicaid for Mothers

The Georgia General Assembly has passed two new healthcare related measures. The first bill, entitled the “Disabled Adults and Elder Persons Protection Act,” enjoyed bipartisan support and is expected to be signed into law shortly. The second act extends Medicaid coverage for postpartum care for new mothers to four months, up from two months.

Among the provisions of the Disabled Adults and Elder Persons Protection Act are:

  • Job protection for whistleblowers
  • Increased fines for violation of regulations for facilities
  • A minimum fine of $5,000 for a regulatory violation that results in serious injury or death
  • Extension of regulation to personal care homes and assisted living facilities
  • Requiring direct patient care by qualified personnel at personal care homes with more than 25 beds with minimum staffing ratios
    • The staffing requirement includes a comprehensive clinical skills review and a medication aide
  • Requiring comprehensive clinical skills evaluation for staff at other facilities
  • Regulations for memory care and Alzheimer’s and dementia care units
  • Pandemic planning, including maintaining a minimum amount of personal protective equipment
  • Authorization to develop licensure and oversight standards for personal care home administrators

These changes were prompted in large part by a newspaper expose on personal care homes, which was published last Fall, and the COVID-19/novel coronavirus outbreak, which hit Georgia elder care facilities particularly hard. Notably, there are no new liability provisions, but the extension of regulations to previously non-regulated or under-regulated facilities makes these bills significant for any provider of residential elder care.