Jay Sadd (left) and John Hall

Would an “average” person know to take immediate steps to revive someone if oxygen alarms were going off and a nurse was warning them that those levels were dropping “rapidly”?

That was the $22 million question before the Georgia Supreme Court Monday, where plaintiffs lawyers who notched a trial win after a jury was allowed to rule on both professional and ordinary negligence. On the other side, defense lawyers argued that the defendant doctor relied on his professional training and should have been judged accordingly.

Pointing to what he termed a trial court's ruling allowing jurors to issue a “hindsight” judgment that shouldn't have been permitted, Hall Booth Smith partner John Hall said his client was held to an improper standard and that his actions met the standard of care.

Whether Dr. Dennis Doherty thought his patient was suffering oxygen deprivation and took the appropriate steps in response is a “classical professional judgment question,” Hall said.

Slappey & Sadd partner Jay Sadd, arguing for the husband and estate of Gwendolyn Brown, said evidence showed the woman was deprived of adequate oxygen for 18 minutes while Doherty failed to heed the alarms and warnings from the nurse.

Asked by Justice David Nahmias if a layperson would have known to assist Brown in such circumstances, Sadd replied in the affirmative.

“We're arguing that if you're here, a swimming pool, whatever—if somebody can't breathe for 18 minutes, they should be rescued,” he said.

The case split the Georgia Court of Appeals last year, with six judges ruling the verdict should stand and three finding Doherty's performance should be weighed solely as a matter of professional negligence.

According to court filings and appellate arguments, the case began in 2008 when Brown consulted with Doherty for chronic back pain. Doherty, an anesthesiologist and pain management specialist, treated her with spinal steroid injections at his surgery center.

Brown was sedated and lying on her stomach awaiting an injection when Doherty arrived belatedly, beginning the procedure nearly an hour after Brown was brought into the operating room. Soon afterward, a pulse oximeter went off, indicating a drop in oxygen levels. Doherty instructed a nurse to increase her oxygen and concluded she was breathing.

The nurse became concerned and, out of Doherty's sight, texted another nurse to “come.”

Brown was face down with injection needles in her back and Doherty was holding 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.

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

They then removed the needles, rolled Brown over and resuscitated her. Her oxygen levels were very 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's husband, Sterling Brown, sued Doherty, a nurse and two companies related to his practice in Fulton County State Court

Following a trial before Judge Diane Bessen, the nurse was cleared of liability. Doherty, Southeastern Pain Specialists and Southeastern Pain Ambulatory Surgery Center were hit with a nearly $22 million verdict. The jury also said Doherty should be assessed punitive damages but awarded none after deliberating more.

On appeal, Doherty argued among other things that the jury should only have been charged with addressing professional malpractice and the standard of care.

Writing for the majority, Court of Appeals Judge Ann Elizabeth Barnes wrote 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, writing for a three-judge minority, disagreed, finding “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, Andrews wrote, Doherty should have been granted a new trial.

The Supreme Court 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 arguing for the defendants, Hall note that 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.

Doherty had performed several actions to check on Brown's state during the procedure, Hall said, and had used his medical judgment to proceed.

If the Court of Appeals ruling stands, he said, medical malpractice cases would become disputed over what the “average layperson would do.”

Several justices asked Sadd about that point.

Nahmias noted that the alarms were going off and the nurses were worried.

“You have a strong case for professional negligence here,” he said. Under Brown's interpretation, he speculated, “wouldn't every case be an ordinary negligence case?”

Jay Sadd (left) and John Hall

Would an “average” person know to take immediate steps to revive someone if oxygen alarms were going off and a nurse was warning them that those levels were dropping “rapidly”?

That was the $22 million question before the Georgia Supreme Court Monday, where plaintiffs lawyers who notched a trial win after a jury was allowed to rule on both professional and ordinary negligence. On the other side, defense lawyers argued that the defendant doctor relied on his professional training and should have been judged accordingly.

Pointing to what he termed a trial court's ruling allowing jurors to issue a “hindsight” judgment that shouldn't have been permitted, Hall Booth Smith partner John Hall said his client was held to an improper standard and that his actions met the standard of care.

Whether Dr. Dennis Doherty thought his patient was suffering oxygen deprivation and took the appropriate steps in response is a “classical professional judgment question,” Hall said.

Slappey & Sadd partner Jay Sadd, arguing for the husband and estate of Gwendolyn Brown, said evidence showed the woman was deprived of adequate oxygen for 18 minutes while Doherty failed to heed the alarms and warnings from the nurse.

Asked by Justice David Nahmias if a layperson would have known to assist Brown in such circumstances, Sadd replied in the affirmative.

“We're arguing that if you're here, a swimming pool, whatever—if somebody can't breathe for 18 minutes, they should be rescued,” he said.

The case split the Georgia Court of Appeals last year, with six judges ruling the verdict should stand and three finding Doherty's performance should be weighed solely as a matter of professional negligence.

According to court filings and appellate arguments, the case began in 2008 when Brown consulted with Doherty for chronic back pain. Doherty, an anesthesiologist and pain management specialist, treated her with spinal steroid injections at his surgery center.

Brown was sedated and lying on her stomach awaiting an injection when Doherty arrived belatedly, beginning the procedure nearly an hour after Brown was brought into the operating room. Soon afterward, a pulse oximeter went off, indicating a drop in oxygen levels. Doherty instructed a nurse to increase her oxygen and concluded she was breathing.

The nurse became concerned and, out of Doherty's sight, texted another nurse to “come.”

Brown was face down with injection needles in her back and Doherty was holding 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.

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

They then removed the needles, rolled Brown over and resuscitated her. Her oxygen levels were very 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's husband, Sterling Brown, sued Doherty, a nurse and two companies related to his practice in Fulton County State Court

Following a trial before Judge Diane Bessen, the nurse was cleared of liability. Doherty, Southeastern Pain Specialists and Southeastern Pain Ambulatory Surgery Center were hit with a nearly $22 million verdict. The jury also said Doherty should be assessed punitive damages but awarded none after deliberating more.

On appeal, Doherty argued among other things that the jury should only have been charged with addressing professional malpractice and the standard of care.

Writing for the majority, Court of Appeals Judge Ann Elizabeth Barnes wrote 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, writing for a three-judge minority, disagreed, finding “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, Andrews wrote, Doherty should have been granted a new trial.

The Supreme Court 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 arguing for the defendants, Hall note that 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.

Doherty had performed several actions to check on Brown's state during the procedure, Hall said, and had used his medical judgment to proceed.

If the Court of Appeals ruling stands, he said, medical malpractice cases would become disputed over what the “average layperson would do.”

Several justices asked Sadd about that point.

Nahmias noted that the alarms were going off and the nurses were worried.

“You have a strong case for professional negligence here,” he said. Under Brown's interpretation, he speculated, “wouldn't every case be an ordinary negligence case?”