Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals vacated a $3 million verdict in a medical malpractice and wrongful death case and remanded for a new trial on the grounds that the claim was brought by the wrong party. Plaintiffs were the mother and adult children of Francis Mitchell, who died of a bowel perforation following removal of an ovarian mass. Plaintiffs alleged the perforation occurred during the surgery. They also alleged that surgeon’s office staff failed to document properly and relay to the patient information made by the family after surgery. Plaintiffs sought recover for ordinary negligence for the failure to document. The jury returned a general verdict.

On appeal, Defendants claimed that the Plaintiffs were not the proper parties to bring the wrongful death action because Ms. Mitchell had an estranged but living husband. The Court of Appeals agreed, holding that Georgia’s wrongful death statute specifically lays out who has standing to sue, starting with the surviving spouse. Relying on a limited equitable exception, the trial court ruled that Ms. Mitchell’s mother and adult children could bring the claim because Ms. Mitchell’s husband was not. However, the Court of Appeals affirmed that the equitable exception is limited to cases involving minor children only.

The Court of Appeals affirmed the denial of a directed verdict on the ordinary negligence claim. The Court held that Plaintiffs produced some evidence that the failure to document the phone calls “impeded communication with Mitchell’s health care team and violated the medical practice’s own internal policies.” The Court further held that the jury was authorized to conclude that if the staff had properly recorded the calls, Ms. Mitchell would have been sent back to the hospital, at which point she had a 50 percent chance of survival.

Take-home: Georgia’s wrongful death statute is strictly construed and checking the proper parties is a key part of the defense. The appellate courts seem open to allowing more claims of “ordinary negligence” to proceed to the jury and that trend is expected to continue.

The case is Northeast Georgia Medical Center, Inc. v. Metcalf, __ S.E.2d ___, 2022 WL 8722220 (Ga.Ct.App. March 24, 2022).

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