Georgia Appeals Court Upholds $9.2 Million Med Mal Wrongful Death Verdict

A Georgia appeals court recently affirmed a $9.2 million wrongful death verdict awarded to the daughter of a patient who passed away following complications during surgery performed at the Medical Center of Central Georgia. The appellate court upheld the verdict on the grounds that the evidence presented at trial was sufficient to establish causation. Notably, the court also found that the state’s $350,000 damages cap did not apply in this case, as caps on damages were deemed unconstitutional in medical malpractice cases.

What Happened?

On March 31, 2017, when Allen Turner was 69 years old, he underwent surgery to remove a polyp in his intestines. The surgery was performed by doctors William Thompson and Heather Nolan at the Medical Center of Central Georgia. Prior to the surgery, Mr. Allen underwent an endoscopy, colonoscopy, and a small bowel follow-through series, but neither a CT scan nor any other type of imaging was performed. During the surgery, the doctors discovered a cancerous mass “approximately 25 percent larger than a golf ball” which they removed along with the polyp because it was determined that removal at a later time was not possible.

During removal, the doctors cut Mr. Turner’s superior mesentery artery – the primary vessel that supplies blood flow to the intestines. The doctors were operating “far left” of the artery’s typical location, and swelling of the patient’s lymph nodes affected their ability to see the surgical site. The superior mesentery artery was cut in half, which required the assistance of the hospital’s vascular team. Although Mr. Allen survived the surgery, he required additional surgeries over the next few weeks due to the damage to the superior mesentery artery. He subsequently passed away from multi-system failure.

The Trial

Mr. Turner’s daughter, Norkesia Turner, sued the Medical Center and two doctors for medical malpractice and wrongful death. The plaintiff was represented by Tracey Lynn Dellacona of Dellacona Law Firm and Caleb Frank Walker, Katherine Lee McArthur, and Lindsey Stephens Macon of McArthur Law Firm. The complaint claimed that the defendants were negligent in that they failed to conduct a CT scan or MRI of Mr. Allen’s abdomen prior to surgery, which would have revealed the cancerous mass as well as the superior mesentery artery’s location. According to the lawsuit, and the medical expert affidavit submitted by Dr. Marvin Evans in support of the allegations, the appropriate standard of care would have been to identify the location of the artery to ensure its protection during surgery.

At trial, Dr. Evans reiterated his testimony that the doctors’ conduct fell below the requisite standard of care, in that a blood vessel should be identified before cutting it. He also testified that the severed artery stopped blood flow to the bowels, which ultimately caused Mr. Allen’s death. The defendants, represented by John E. Hall Jr., Jacquelyn Smith Clarke, Austin Aaron Atkinson, Pearson Kern Cunningham and Michael Victor Profit of Hall Booth Smith PC, Robert Peter Marcovitch of Sinton Scott Minock Kerew, Randolph Page Powell Jr. of Huff Powell & Bailey and Alexander Collins of Collins Ritchie & Ervin LLP, presented their own expert, Dr. George Fuhrman, who agreed that the artery was severed and that the lack of blood flow caused Mr. Allen’s death.

According to Dr. Evans, had the defendant's doctors conducted a CT scan, they would have been able to see the superior mesentery artery and whether it was distorted. He concluded, “within a reasonable degree of medical probability,” that a proper CT scan would have prevented the artery’s severance. Therefore, the main issue at trial was whether failure to conduct a CT scan led to the doctors’ severance of the artery.

The jury found in favor of the plaintiff, awarding her approximately $9.2 million in damages, consisting of $618,853.59 for medical and funeral expenses, $1,445,300 for pain and suffering, and $7,216,500 in noneconomic damages for the wrongful death claim.

The Appeal

Medical Causation

The defendants appealed the verdict, with the Court of Appeals finding that the plaintiff presented sufficient evidence to prove causation. As the three-judge appeals panel explained, to recover in medical malpractice, wrongful death case, a plaintiff “must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained.” The plaintiff must “use expert testimony because the question of whether the alleged professional negligence caused the plaintiff's injury is generally one for specialized expert knowledge beyond the ken of the average layperson.” But questions regarding causation are “peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.”

Per Georgia law, in order to prove medical causation, an expert can “state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.” The Court of Appeals found that the expert testimony was sufficient to establish causation, in that there was more than a “mere possibility” that the doctors' failure to order a pre-surgery CT scan resulted in the severance of Mr. Allen’s artery and his ultimate death.

Damages Cap

The defendants filed a motion to remit and amend the judgment before the trial court, arguing that the $7.2 million in noneconomic damages violated Georgia’s $350,000 cap on noneconomic damages. The trial court denied the motion, citing a prior case – Atlanta Oculoplastic Surgery, P.C. v. Nestlebutt– where the state’s Supreme Court held that caps on noneconomic damages, as set forth in the statute OCGA § 51-13-1, violate the constitutional right to a jury trial. Although the prior case involved a medical malpractice claim only (and not wrongful death, as in Turner’s case), the appeals court found that the decision was meant to apply to medical malpractice cases, which include wrongful death claims, and that damages caps are also unconstitutional in these cases as well. Therefore, because the plaintiff’s wrongful death claim involved medical malpractice, the statutory cap on damages for that claim violated her rights under the state's constitution, and the appellate panel affirmed the verdict.