Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals rejected cross-appeals from a $7.6 million verdict against a nursing home, which was reduced to $1.6 million after reduction for apportionment to non-parties. Plaintiffs sued the Holly Hill nursing home for the death of Bobby Copeland, 71. Mr. Copeland had been a resident there for 11 years. In October 2012, he was observed by a nurse to have vomited and his abdomen was slightly distended. The nurse contacted a provider to report that he should go to the hospital. The provider ordered labs and an x-ray.

The following day, a physician examined Mr. Copeland and sent him to the hospital. He was seen in the emergency department by the facility physician and other providers. Mr. Copeland was then admitted to the ICU. He died later that evening from aspiration of fecal material, associated with a bowel obstruction.

The case proceeded to trial. The defense challenged the excusal of a venire panel member under a “reverse Batson” challenge. The jury returned a $7.6 million verdict, which was reduced to $1.6 million after apportionment of fault to the emergency department personnel and the hospital.

The Court of Appeals affirmed the trial court’s decision on the peremptory challenge, finding that the plaintiffs had an adequate race-neutral explanation for the challenge. The defense also appealed the denial of a directed verdict on a negligent staffing claim, asserting that it was a claim for professional negligence and there was no expert witness testimony. The trial court denied the motion and the Court of Appeals affirmed, holding that the negligent staffing claim in this case sounded in “ordinary” negligence because the evidence showed that the facility made a business decision to choose only certain shifts for full staffing and that those decisions were not based on professional judgment.

The plaintiffs appealed the apportionment of damages against the emergency department personnel, claiming the defense had not met the heightened evidentiary burden under O.C.G.A. §51-1-29.5 (the “gross negligence standard”). The Court held that there was competing evidence regarding whether Mr. Copeland was stabilized in the emergency department and thus the trial court was justified sending the issue of both “gross negligence” and the lower “ordinary professional negligence” to the jury. The Court also held that Holly Hill’s expert testimony regarding the care provided at the emergency department was sufficient to get the issue of “gross negligence” to the jury.

The plaintiffs challenged the apportionment of damages, claiming that the hospital should not have been a separate unit for purposes of apportionment from the personnel it employed, who were listed individually. The Court held that the defense had presented evidence that the hospital was independently liable, which justified a separate line on the verdict form. The plaintiffs also claimed that the jury only found the hospital vicariously liable for the acts of one of the individual physicians, but the Court pointed out that the question was not asked that way. Although plaintiffs’ counsel “wondered” whether the jury apportioned damages based on vicarious liability, the verdict form was taken at face value.

Take-homes: this was a detailed case with a lot of moving parts. Verdict forms in apportionment cases require close attention to the claims made. Remember, objections to the form of the verdict must be made while the jury is still empaneled and only a jury can reform a verdict form.

The case is Lowndes County Health Services, LLC v. Copeland, Court of Appeals of Georgia, October 10, 2019 — S.E.2d —- 2019 WL 5077718.

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