Jay Sadd (left) and John E. Hall

The Georgia Supreme Court tossed out a $22 million medical malpractice verdict Monday, ordering a retrial after concluding the defendant doctor was held to an improper evidentiary standard.    

The unanimous opinion said the jury was allowed to rule on both medical malpractice and ordinary negligence, a lower standard under which any layperson without medical training would have realized something was wrong during the medical procedure at the heart of the case.

But, wrote Justice Nels Peterson, while the care provided by Dr. Dennis Doherty may have been below the standard of care, it was nonetheless the product of his professional training and judgment.

Because the verdict was unclear as to which standard the jury relied upon, Peterson wrote, a new trial is needed.

The same case split the Georgia Court of Appeals in 2016, with six judges ruling the verdict should stand and three embracing the high court’s ultimate position that the doctor’s actions should be weighed solely as a matter of professional negligence.

“The plaintiffs’ case of medical malpractice was very strong,” wrote Peterson. “But a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice.”

The case involved the treatment administered to Gwendolyn Brown, who in 2008 sought relief for back pain from Doherty, an anesthesiologist and pain management specialist who treated her with spinal steroid injections at his surgery center.

During one session, Brown was lying on her stomach with 5-inch needles in her back when a pulse oximeter alarm sounded, indicating her oxygen level was dropping. Doherty instructed a nurse to increase her oxygen and concluded she was breathing.

The nurse became concerned and texted another nurse to “come.”

Brown was still face down with needles in her back while Doherty held her jaws open when the second nurse arrived. She prepared to turn Brown on her back to bring her around, but Doherty said the alarm was malfunctioning and called for another one, which also went off.

Another monitor also indicated at the same time that there was no detectable blood pressure, but Doherty said everything was “fine” and asked two staffers to hold up Brown’s shoulder to relieve pressure while he finished the procedure.

They then removed the needles, rolled Brown over and resuscitated her. Her oxygen levels were low, and Doherty administered an oxygen bag. A nurse asked whether to call 911, but Doherty said no. Brown didn’t fully respond, and 911 was called a couple of hours later.

Brown suffered catastrophic brain damage and died six years later.

Her husband, Sterling Brown, sued Doherty, a nurse and two companies related to his practice in Fulton County State Court

Following a two-week trial before Judge Diane Bessen, the nurse was cleared of liability. The jury found Doherty, Southeastern Pain Specialists and Southeastern Pain Ambulatory Surgery Center liable for $22 million in damages. The panel also said Doherty should be assessed punitive damages but, after deliberating, awarded none.

In the Court of Appeals, Judge Ann Elizabeth Barnes wrote for the majority that a “jury could, without the help of expert testimony, find that certain acts and omissions … were claims of ordinary rather than professional negligence.”

Judge Gary Andrews, penning the minority opinion, said “there was no evidence to support a theory of recovery against Dr. Doherty based on ordinary negligence.”

Because the jury’s “general verdict” did not indicate whether it was based on ordinary or professional negligence, Doherty should have been granted a new trial, Andrews wrote,

On appeal to the high court, the justices asked the parties to brief two questions: Did the evidence support a claim based on ordinary negligence and, if not, was the resulting error harmful to each defendant?

In oral arguments, lead defense counsel John Hall of Hall Booth Smith argued Brown’s complaint was styled as a medical malpractice claim and that the plaintiff’s expert said Doherty’s actions violated the professional standard of care.

While Doherty’s treatment may be an issue, he said, the doctor performed several actions to check on Brown’s state during the procedure and had used his medical judgment in deciding how to proceed.

Allowing the verdict to stand, Hall said then, would mean that medical malpractice cases would become hindsight disputes over what the “average layperson would do.”

Lead plaintiffs attorney Jay Sadd of Slappey & Sadd had argued that Doherty’s negligence in not responding to Brown’s dropping oxygen levels and failure to call 911 when she was in obvious, prolonged distress constituted both professional and ordinary negligence.

“We’re arguing that … if somebody can’t breathe for 18 minutes, they should be rescued,” Sadd told the justices.

In ordering the new trial, the justices agreed with the lower appellate court’s minority opinion.

“Medical providers owe certain duties of ordinary care to their patients, and a breach of one of those duties is ordinary negligence,” Peterson wrote.

“If the alleged negligent act or omission does not require the exercise of medical judgment,” he said, “the alleged tortfeasor’s possession of medical credentials does not make the case one of medical malpractice.”

But in this case, he wrote, the trial court charged the jury on ordinary negligence based on the assumption that a layperson would not need expert testimony to understand the meaning of the pulse oximeter readings and blood pressure monitors or how to respond to them.

“Whether or not the information provided by these medical devices indicated even to lay persons that Mrs. Brown was experiencing some respiratory distress, it does not follow that lay persons would know the proper response to that information in the midst of a complex medical procedure,” he wrote.

“It was error to charge the jury on ordinary negligence based on the premise that whether and how to respond to medical data from medical devices during a medical procedure does not require medical judgment,” Peterson said.

In an email, Sadd termed the ruling “quite favorable to our client. It is limited to cases involving medical data provided by medical equipment during a medical procedure. Meanwhile, the Georgia Supreme Court recognized our case of medical malpractice to be ‘very strong.’ The court also decided that punitive damages are to be determined yet again by the jury.” 

“The likelihood of obtaining a verdict far above the original $22 million verdict is high, and we are looking forward to trying it again,” Sadd said.

Hall declined to comment on the ruling.