Health Law and Regulation Update Blog Post by Eric Frisch.

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).

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