The Georgia Court of Appeals has ordered a new trial in a catastrophic brain injury case after ruling the half-million dollar verdict, which included past medical expenses but nothing for future expenses, or pain and suffering, was so meager as to “shock the conscience.”

The jury in the DeKalb County medical malpractice case awarded more than $1.1 million for past medical expenses and more than $67,000 in a loss of consortium claim for the injured woman's husband, but apportioned 51 percent of the blame to the defendant, Rockdale Hospital.

The plaintiffs had asked for a new damages-only trial but the judge refused, leading to the appeal.

Plaintiffs' attorney Lloyd Bell said he is likely to seek review by the Georgia Supreme Court.

“We think the Court of Appeals correctly reversed the trial judge and ordered a new trial,” said Bell.

“Where we believe the Court of Appeals is in error is in relying on pre-2005, pre-apportionment statute law to determine that the entire case needs to be retried.”

The case presents an “interesting legal issue the Supreme Court has never addressed,” said Bell, who represents Janice and Shawn Evans, along with S. Leighton Moore, Marietta solo James Wilson Jr. and Roswell solo Lawrence Schlachter.

Bell said post-trial conversation with the jury indicated the verdict represented a compromise between those who wanted to award more damages and those who wanted none.

Rockdale is represented by Dan Huff, R. Page Powell Jr. and Sharonda Barnes of Huff Powell & Bailey.

Huff said they had not decided how to respond.

“We are disappointed in the Court of Appeals decision because it rejected a compromise verdict by the DeKalb County jury,” Huff said. Huff added “the overwhelming majority were in favor of a verdict for the hospital. Without a compromise, there would have either been a defense verdict or a mistrial.”

“The trial judge recognized this in denying the plaintiffs' motion for new trial,” Huff said.

Even so, he said, the defense agreed that any new trial should encompass both liability and damages.

“This case is another example of why remanding for a retrial in complicated and sympathetic medical malpractice cases should be on all issues of liability and damages and not a single issue,” Huff said.

According to the lawyers and court filings, the case began in 2012 when Jan Evans, then 60, woke up with “the worst headache” she'd ever had, accompanied by vomiting and diarrhea.

Evans thought she might have contracted food poisoning at a local Mexican restaurant, but after two days of misery she went to the Rockdale emergency room.

The triage nurse chose a chart template used for patients with digestive problems, and did not ask about her headache even though she displayed extremely high blood pressure and requested pain medication.

Evans was discharged the next day and told to follow up with her primary care physician. She scheduled an appointment as soon as available, but again experienced a severe headache and vomiting. She was taken back to the ER by ambulance, where a CT showed she had suffered several strokes as a result of a ruptured brain aneurysm.

She underwent several surgeries and lengthy rehabilitation, but was left permanently disabled. She cannot feed herself or speak, has seizure and cognitive disorders, and requires 24-hour care.

As Jan's husband and guardian, Shawn Evans sued Rockdale, the ER doctor and his employer in DeKalb County state court.

During a 10-day trial before Judge Johnny Panos, a key dispute was whether Jan Evans would have suffered such extensive injuries if the ER nurses had diagnosed her brain aneurysm earlier.

The defense also argued that she contributed to her plight by failing to take medication to control her “longstanding, uncontrolled hypertension.”

Bell said the jury deliberated for two days before clearing the ER doctor of negligence, but found the hospital liable. The panel awarded $1,196,288, the exact amount of Evans' past medical bills, but awarded nothing for future medical expenses, past and future pain and suffering, or past and future lost wages.

Shawn Evans was awarded $67,555 on his loss of consortium claim.

After reducing the award by 49 percent, Panos entered a judgment for $586,191 for past medical expenses and $33,101 on the consortium claim.

The plaintiffs filed a motion for a new damages-only trial or for additur, asking Panos to increase an award “so clearly inadequate as to be inconsistent with the preponderance of the evidence.”

Panos declined.

The appellate opinion was written by Judge Anne Elizabeth Barnes with the concurrence of Judges Clyde Reese and Carla McMillian. The latter, however, concurred in the judgment only, but offered no indication for her reasoning.

In overruling Panos, Barnes cited 1998 Georgia Supreme Court precedent in Moody v. Dykes, explaining that a trial court is empowered to raise or reduce an award if it's “contrary to the preponderance of the evidence.”

It was undisputed that Evans is totally incapacitated, Barnes wrote, and “Rockdale conceded at trial that Mrs. Evans had experienced a 'catastrophic' injury and suffered a 'devastating' loss.”

“Given this record, the jury's award … was so clearly inadequate under a preponderance of the evidence as to shock the conscience and necessitates a new trial,” wrote Barnes.

Because the verdict involved issues of apportioned negligence, the plaintiffs' arguments for a damages-only trial also failed, Barnes said.

“In cases like the present one involving issues of comparative negligence, the Georgia Supreme Court has held that review of the verdict is available … but if a new trial is ordered, it must encompass all issues and cannot be limited to damages,” the opinion said.