A recent ruling issued by the Georgia Supreme Court in a high-stakes medical malpractice case has brought new clarity to the issues of vicarious liability and apportionment of liability in tort litigation. On the surface, this ruling upheld a multi-million-dollar verdict for the plaintiffs in a medical malpractice case. Beyond the verdict, the ruling also elucidated the court’s guidance on joint liability, liability apportionment, and the empty chair defense. Consequently, it has important implications for both defense and plaintiff cases in Georgia torts involving multiple defendants and questions of joint liability.
Background on the Case
In Atlanta Women’s Specialists v. Trabue (Case No. 14-EV-001821Y)1, Dr. Stanley Angus and his employer, Atlanta Women’s Specialists, LLC (AWS), were found liable for medical malpractice resulting in severe brain damage to Shannon Trabue suffered, a 38-year-old woman in Georgia.
According to the complaint, Mrs. Trabue stopped breathing and suffered cardiac arrest on her way to a scan four days after delivering a healthy baby girl. She was ultimately revived but had been deprived of oxygen for long enough to cause permanent brain damage. Her husband, Keith Trabue, alleged malpractice against the attending physicians, arguing that they negligently provided excessive intravenous fluid, causing pulmonary edema and heart failure.
Mr. and Mrs. Trabue named Dr. Angus and AWS as defendants in the complaint. Northside Hospital in Atlanta, a nonparty at fault, settled with the plaintiffs prior to trial.
Dr. Rebecca Simonsen, who had been among the attending physicians, was not named as a defendant in the complaint. Nevertheless, the plaintiffs attributed 41 allegations of negligence to Dr. Simonsen in the consolidated pretrial order.
The First Trial
In 2017, the trial got underway in Fulton County State Court, with Judge Fred Eady overseeing the proceedings. Dr. Simonsen, though not a defendant, was called as a lay witness in the trial. Among the many healthcare providers to testify during the trial—including a , gynecologists, and forensic pathologists—was an expert for the plaintiff who, notably, did not attribute fault to Dr. Simonsen.
After 10 days of testimony and 15 hours of jury deliberation, the verdict came back in favor of the plaintiffs, with awards of $27.8M to the estate of Shannon Maria Trabue and $18M to Keith Trabue.
AWS immediately petitioned the court to vacate the $45.8 million combined award on the grounds that Dr. Simonsen was a nonparty at fault. Judge Eady did not reject the verdict, but instead ruled that the case be retried for apportionment of liability.
An Appeal Is Met with a Cross-Appeal
Judge Eady’s order was met with two appeals. The plaintiffs filed an appeal requesting that the apportionment order be reconsidered. The defendants cross-appealed on a vicarious liability issue, citing problems the plaintiff’s expert who did not find fault with Dr. Simonsen.
Additionally, the cross-appeal filed on behalf of Dr. Angus took issue with liability apportionment between him and AWS, alleging the trial court erred because Dr. Simonsen shared some responsibility. Both defendants requested a new trial.
On March 7, 2019, the Court of Appeals of Georgia, in an opinion by Chief Judge Stephen Dillard and Judges Sara Doyle and Amanda Mercier, upheld the jury award. In the majority opinion, Judge Doyle stated that the defendants’ claims regarding vicarious liability were “without merit.” The opinion also called the defendants’ allegations of problems with the plaintiff’s expert witness “meritless.”
Additionally, the high court ruled in favor of the plaintiffs’ appeal, finding that the trial court erred in issuing the order for a new trial focused on apportionment only. According to Doyle’s opinion, the:
“[n]egligence or fault of a nonparty shall be considered if . . . a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.” “[T]he plain and unambiguous meaning of OCGA § 51-12-33 (d) (1)’s text mandates strict compliance. . . .” Accordingly, failure to give proper timely notice precludes apportionment between a nonparty and a party.
Effectively, Judge Doyle ruled that the defendants’ failure to provide the legally required pretrial notice precluded the request for apportionment of potential nonparties like Dr. Simonsen. Appeals followed this ruling, bringing the case to the state’s high court.
Georgia Supreme Court Hears & Rules on the Case
In March 2020, the case was argued via Zoom before the Georgia Supreme Court. On September 28, 2020, the Georgia Supreme Court affirmed the Court of Appeals’ judgment. In the official opinion from the state’ high court, Justice Michael P. Boggs agreed with Justice Doyle’s opinion regarding vicarious liability. Justice Boggs stated:
I see no vicariously liable defendant exception to the provisions of OCGA § 15-12-33 (b). No one is seeking apportionment with respect to Dr. Simonsen in the instant case. Rather, Dr. Angus is seeking apportionment with AWS who is a named party and who is liable for actions beyond Dr. Angus’s.
On the issue of apportionment, Justice Boggs again agreed with Judge Doyle, affirming that the defendants were required to provide the 120-day pretrial notice, per OCGA. Specifically, Justice Boggs stated that:
Our opinion is not limited to “cases involving apportionment between co-defendants in an employment relationship,” but rather confirms that a defendant must file a notice of nonparty fault naming any nonparty upon whose fault the defendant seeks apportionment of damages.
What the Rulings Mean for GA Torts: The Impacts
In upholding the $45.8M verdict in Atlanta Women’s Specialists v. Trabue, the Georgia Supreme Court refined existing guidance on vicarious liability and liability apportionment in a few key ways. Specifically, the ruling underscored that:
- “A plaintiff need not specifically name in the complaint each physician-employee whose acts or omissions form a basis for the claim of vicarious liability against the medical practice.”2. In other words, naming an employer-practice without listing all employees-doctors who are alleged to be negligent is sufficient for vicarious liability claims to move forward.
- Defendants are required to provide advanced notice of an empty chair defense, per the terms of O.C.G.A. § 51-12-33. Elaborating more, the high court explained that vicarious liability is not an exception to this advanced notice requirement. Nor is an employment relationship between the defendants. All defendants are required to comply with this notice or forfeit the right to seek apportionment with nonparties at fault.
