Stung by a $20.5 million verdict stemming from the death of a patient at the Emory Sleep Center, Emory University is suing the independent contractor that operated the center to recoup damages and the legal costs Emory incurred while defending the case.
Emory—which operates Emory University Hospital, The Emory Clinic and the Sleep Center—filed suit May 12 against Boston-based Neurocare Inc. in federal court in Atlanta, claiming that Neurocare had defaulted on contractual promises to indemnify and defend the hospital and clinic against negligence claims and to carry at least $1 million in professional liability insurance for the sleep center’s medical director, an Emory physician.
The suit claims that after Emory was sued in 2011 by the administrator of the dead man’s estate, Neurocare repeatedly ignored Emory’s requests that it pay for Emory’s defense and that of the center’s medical director, David Schulman. The suit also claims that Neurocare did not defend itself at the 2015 trial after informing Emory’s defense counsel that it had reached a separate pretrial settlement, although Neurocare was not dropped as a defendant in the case.
A spokeswoman for Neurocare on Tuesday declined to comment on the new suit. Hunter Allen Jr. and Gary McCain of Atlanta’s Allen & McCain, who filed the federal suit for Emory, also would not comment.
Emory’s complaint against Neurocare comes 20 months after a DeKalb County jury awarded the estate of sleep center patient Brandon Harris $20.5 million. Although the jury apportioned 60 percent of the blame for Harris’s death to Neurocare and one percent to Schulman, it specifically that Emory University was liable for Neurocare’s negligence and that of Neurocare’s Sleep Center technicians—bringing Emory’s apportioned share of the verdict to $12.5 million.
The jury assigned 39 percent of the blame for Harris’s death to DeKalb County emergency medical technicians who were belatedly called to the sleep center after Harris stopped breathing during a 2010 sleep apnea study.
Emory, according to the federal suit, eventually negotiated a confidential settlement with Harris’s estate to resolve the $12.5 million claim. It is those settlement costs as well as legal fees stemming from the underlying suit and its new claim against Neurocare that Emory is attempting to recoup.
Harris’s sleep study was videotaped and recorded an increasingly harrowing 45 minutes where Harris began coughing and gasping for air, calling for help and crying in pain until he lost consciousness and stopped breathing, according to the underlying wrongful death complaint, which was filed in 2011.
After an initial 15-minute delay where Harris repeatedly tried to signal for help by waving at the camera recording the study, as many as three sleep technicians repeatedly entered his room, rubbing his back, giving him water and bringing an inhaler, while assuring him that he was “doing better.”
Harris eventually passed out, slid to the floor and stopped breathing. At that point, one technician said, “What do we do?” but no one administered chest compressions or began artificial respiration prior to the arrival of county EMTs, according to the complaint filed by Harris’s estate.