The Georgia Supreme Court on Monday reversed a lower court decision that doctors and businesses had said would have unfairly expanded who can be liable for medical malpractice and other torts.
Monday’s 7-0 decision is a win for an emergency department medical director sued even though he wasn’t at the hospital when the patient whose care was at issue came in for treatment. Those who had fought the lower court ruling had said it could extend beyond the medical context to affect more general questions of liability for supervisors.
The case was brought by the daughter of Deloris Gaulden, who was 64 when she came to the Liberty Regional Medical Center’s emergency room in Hinesville in 2008. She had become dizzy and fainted at church and was transported to the hospital by ambulance, according to the Court of Appeals decision.
There is evidence that Gaulden didn’t receive an electrocardiogram until more than an hour after arriving at the hospital at 1:47 p.m., the appeals court ruling said. That test showed she likely was having a heart attack, and she went into cardiac and respiratory arrest shortly thereafter. Efforts were made to revive her, but she was pronounced dead at 6:05 p.m.
Gaulden’s daughter sued a host of defendants, including the hospital, the physician who treated Gaulden in the ER, the nurse assigned to Gaulden and the charge nurse on duty. The estate also sued Bobby Herrington, a doctor who was the ER’s medical director. The lawsuit said that if the ER staff had immediately carried out the hospital’s protocol for responding to chest pain, including steps a nurse could take without a physician’s approval, Gaulden wouldn’t have died.
Herrington was not an employee of the hospital but had a contract with a company that staffed the hospital with physicians. He wasn’t at the hospital when Gaulden came in for treatment, but the plaintiff contended Herrington was liable because he was negligent in failing to make sure the ER staff was properly trained on ER policies and protocols, including the chest pain protocol.
Herrington argued that he couldn’t be liable for malpractice because he didn’t have a doctor-patient relationship with Gaulden and owed her no legal duty. The nurses and doctor who treated Gaulden argued that the plaintiff hadn’t shown they had committed gross negligence, the standard for proving liability over emergency medical care provided in a hospital ER.
Liberty County State Court Judge Leon Braun Jr. denied the summary judgment motions over gross negligence filed by the nurses and the doctor who treated Gaulden. Those decisions remain on appeal before the state Court of Appeals.
As to Herrington, Braun granted summary judgment, and the plaintiff appealed. Last year, a panel of the Court of Appeals reversed Braun’s ruling on Herrington. Joined by Judge Harris Adams, who has since retired, and Judge Christopher McFadden, Judge Anne Elizabeth Barnes wrote that Braun had erred in concluding Herrington had no duty to Gaulden.
Barnes acknowledged that in the “classic” medical malpractice case, a plaintiff must point to a physician-patient relationship for the doctor to be liable. But she said that in the unique circumstances of a particular case, there can be another basis for a doctor’s legal duty.
As evidence that Herrington may have assumed such a duty, Barnes pointed to a list of responsibilities attached to his medical director contract, including that he would “Monitor and Supervise Physicians” and “Monitor and Supervise Department Functions.” She also pointed to testimony from Herrington that he provided “one-on-one mentoring” to ER doctors “when needed” and would periodically attend nurse meetings and answer questions.
Backed by amicus briefs from the Medical Association of Georgia and the Georgia Chamber of Commerce, Herrington took his case to the Supreme Court. MAG told the court it feared the Court of Appeals decision would deter doctors from taking on the job of a hospital unit’s medical director, which is sometimes a volunteer post.
The plaintiff’s lawyers argued that the case against Herrington was unique in that the doctor was serving as a medical director under a contract and was governed by a lengthy manual.
The justices were unanimous in siding with Herrington on Monday. Writing for the court, Justice Keith Blackwell said the case against Herrington didn’t call for finding an exception to the general rule that a plaintiff in a medical malpractice case usually must show that she was a patient of the defendant doctor.
Blackwell noted that the Court of Appeals had based its decision in part on a 1995 Court of Appeals decision that allowed the parents of a patient to sue a professional corporation that had contracted to supervise the nursing staff at the hospital where their child was seen. But Blackwell said that case was different in that, unlike the corporation in that case, Herrington had no responsibility or authority as medical director to control the manner of care given to Gaulden by her treating physician and nurse. In its contract with the treating physician, Blackwell pointed out, the company for which Herrington was to supervise the physician staff explicitly disavowed “any control or direction over methods by which” the treating physician performed his work.
The Court of Appeals also had pointed to a section in the Restatement of Torts that says one who undertakes to provide services to another that are necessary for that person’s protection may sometimes be liable for physical harm that results from his failure to provide the services carefully. But Blackwell said that section didn’t support liability for Herrington because it applies only when the alleged negligence of the defendant exposes the injured person to a greater risk of harm than had existed.
“In this case, we find no evidence in the record that the risk to Gaulden was ‘escalated’…by the alleged failure of Dr. Herrington to adequately supervise the training of emergency department physicians and staff,” wrote Blackwell. “At most, Dr. Herrington might be said to have failed to resolve a misunderstanding of the physicians and staff about the precise requirements of the chest pain protocol, a misunderstanding that no evidence suggests was of his own making. As such, there is no evidence that he affirmatively increased the risk of harm to patients such as Gaulden.”
The Supreme Court argument for Herrington was made by Alston & Bird partner James Grant. Theodore Pound of Atlanta’s Commander Pound Butler, one of Herrinton’s other lawyers and a former Alston colleague of Grant’s, called the Supreme Court ruling “a return to sanity.”
“Dr. Herrington has been amazed, bewildered from the beginning that he could be sued regarding the death of a patient that he never saw,” said Pound. “There simply was no precedent for it in the law that I could find, and the Supreme Court has stated much the same in this opinion.”
The argument for the plaintiff was made by H. Craig Stafford of Arnold & Stafford in Hinesville. An associate at the firm, Andrew Johnson, said the plaintiff’s team was disappointed but hopeful given that the court did not say flat-out that medical directors could not be sued. Subsequent to Gaulden’s death, said Johnson, the trend nationally has been for hospital accrediting agencies and federal regulations to put more of an affirmative duty on medical directors. “It’s not a blank check preventing anyone from suing medical directors or eliminating medical director liability,” Johnson said of Monday’s decision.
The case is Herrington v. Gaulden, No. S13G0577.