More than six months after the Georgia Court of Appeals quietly upheld a ruling dumping legal malpractice claims against personal injury firm John Foy & Associates and most of those against two other lawyers and the Atlanta Trial Lawyers Group, the parties will meet next week to discuss what the plaintiffs attorneys concede is “a very small part” of the original case.
“We put up a good fight, but it was not meant to be,” said Atlanta solo Cyprian Tee Okonkwo, who represents the estate administrator of Johnnie Mae Ingram, who died during the pendency of the lawsuit; her executor, Natasha Ingram, is the plaintiff now.
Foy—widely known for his advertisements as “The Strong Arm”—is represented by Freeman Mathis & Gary partner Dana Maine.
“We are very pleased that Mr. Foy and his firm were vindicated through this litigation,” said Maine in an email. “We hope the family is able to put this matter behind them after they finish the litigation with the other firm who was representing Ms. Ingram.
Werdesheim Law Firm principal Peter Werdesheim, who represents the Atlanta Trial Lawyers Group, owner attorney Adam Jaffe, and former ATLG lawyer Katherine Franke, said he was gratified that “what was once being billed as a seven-figure case is now a much smaller case.”
Werdesheim, who left Carlock Copeland last year to go solo representing plaintiffs in professional liability cases, said the suit is one of his last remaining defense cases. He said his former co-counsel Jennifer Guerra, of counsel at Carlock Copeland, “contributed greatly to the favorable outcome.”
The case began in 2011 when Ingram, then 68, was being transported home from Grady Memorial Hospital in a van.
As the attendant lowered Ingram to the ground in her motorized wheel chair, she and the chair fell. Ingram landed face-first with the chair falling on top of her back. Ingram was taken back to Grady complaining of pain in her head, knee, hips and elsewhere.
She was discharged the next day and would later testify that her hips and buttocks were hurt.
She retained Foy & Associates four days later to seek damages for her injuries. A few days later, she went to the emergency room complaining of chest pain and difficulty breathing. She lost consciousness while there and was admitted to Emory University Hospital’s intensive care unit.
Ingram was sent to the Kindred Hospital Atlanta nursing facility three weeks later, where she developed open bedsores that required extensive treatment. She was there for more than three months.
The Foy firm sent a demand letter to Grady’s insurer seeking $2 million to settle the case in 2012. The firm sued Grady in Fulton County Superior Court the following year. Foy, according to the appellate opinion, said in deposition that the decision not to sue Kindred was “a matter of strategy.”
On Jan. 25, 2015, Foy associated in ATLG and provided the case file on a disk, including notice of a status conference set for March 3. Franke would depose that an associate who reviewed the case file overlooked the notice, and no one appeared for Ingram at the conference.
Judge Constance Russell dismissed the case with prejudice for want of prosecution.
Ingram sued Foy, his firm, ATLG, Jaffe and Franke in Fulton County Superior Court in 2016, arguing among other things that their failure to timely sue Kindred and failure to appear at the conference constituted legal malpractice.
Ruling on summary judgment in December 2016, now-retired Fulton Superior Court Judge Jerry Baxter dismissed the claims against the defendants and granted partial summary judgment to the ATLG defendants.
The Court of Appeals upheld Baxter in an unreported opinion in March.
The 13-page opinion, penned by Judge John Ellington with the concurrence of Judges Gary Andrews and Brian Rickman, said the Foy firm was within its professional duties in deciding whom to sue. (Andrews retired from the court in June.)
“Because the undisputed evidence in this case shows that the decision to bring suit only against Grady was a tactical decision made in the exercise of professional judgment, the appellant’s legal malpractice action against the Foy firm is barred by the doctrine of judgmental immunity,” Ellington wrote.
As to ATLG, while “the firm conceded that triable issues remain regarding whether its lawyers’ negligence caused or contributed to the dismissal of Ingram’s suit against Grady,” there was no evidence that Grady’s alleged negligence was the cause of Ingram’s injuries at Kindred.
“If Ingram cannot prove that she would have recovered against Grady for the Kindred damages in the underlying negligence action, then she cannot recover against the Jaffe firm” for those damages, the opinion said.
The Georgia Supreme Court declined to hear Ingram’s appeal last month.
The judge now handling the case, Jane Barwick, entered the remittitur order last week.
The only issue remaining is the damages Ingram’s estate should have recovered for her injuries in the fall if the case against Grady had not been dismissed, Okonkwo said.
“The med-mal case is gone, but the wheelchair falling on top of her is what’s left,” he said.