Presiding Judge Sara Doyle, Georgia Court of Appeals. (Photo: John Disney/ALM)

The Georgia Court of Appeals on Thursday upheld a $46 million medical malpractice verdict and reversed the trial judge's order to reconsider apportionment in the case.

Judge Sara Doyle used the word “meritless” to describe some of the defense issues on appeal, affirming the jury's award to the family of Shannon Trabue, who suffered a catastrophic brain injury in a hospital four days after she delivered a healthy baby. Doyle rejected plans to retry the apportionment part of the case but ordered the trial judge to reconsider attorney fee awards to the Trabues.

Doyle was joined by Chief Judge Stephen Dillard and Judge Amanda Mercier.

Trabue was 38 when her baby was born in 2009 at Northside Hospital, which settled out of the case before trial. Her blood pressure began to spike after the birth. She stopped breathing and then suffered cardiac arrest on the way to have a scan in the radiology department. A code was called and she was revived, but she had gone too long without oxygen.

To put a complicated case simply, lawyers for her husband, Keith Trabue, contended that doctors filled her with too much intravenous fluid in an effort to address her blood pressure, causing her lungs and heart to fail.

The case was tried in 2017 before Fulton County State Court Judge Fred Eady. The jury found Atlanta Women's Specialists and Dr. Stanley Angus liable for the injury that left Trabue permanently brain damaged. The doctors' group asked Eady to throw out the verdict, arguing that another employee who was not sued, Dr. Rebecca Simonsen, should have shared the blame. Eady decided to retry the case for apportionment only.

The Trabues appealed the apportionment reconsideration order. Atlanta Women's Specialists and Angus cross-appealed, asking for a new trial because of apportionment issues and objections to an expert witness who didn't place blame on Simonsen.

“We find meritless the defendants' contention that the plaintiffs' expert affidavits filed with their initial and renewal complaints are defective because they offered no criticism of Dr. Simonsen,” Doyle said. “An OCGA §9-11-9.1 expert affidavit must simply specify at least one negligent act or omission and the factual basis for the claim.”

As to apportionment, Doyle said the practice group's liability “was purely vicarious in nature” for the actions of the doctors.

“Apportionment is not proper” between the practice and the doctor, Doyle said. “Notwithstanding the defendants' attempts to characterize their request for apportionment as between parties, they actually seek to apportion between Dr. Angus and Dr. Simonsen, a non-party under OCGA §51-12-33 (b).”

But Doyle ruled that the practice group had not given the required notice in advance of the trial for that apportionment.

“By failing to give the mandatory notice required by that Code section, the defendants waived their right to apportion damages in that manner,” Doyle said. “Thus, the trial court erred by granting a new trial as to apportionment, and we therefore reverse that portion of the order.” Winning lead counsel Bill Stone of Stone Law said Doyle's opinion shows that Eady “was correct the first time.”

“The court considered it carefully and correctly concluded that the trial court did not commit any error during the trial,” Stone said. “It was a big win for us because it was a win on all issues.” Stone tried the case with his two sons, Ryals Stone and James Stone, and Michael Regas, all of Stone Law. For the appeal, they added Michael Terry and Naveen Ramachandrappa of Bondurant Mixson & Elmore.

“Mike Terry made a splendid oral argument,” Stone said.

But it's not over, according to defense appellate counsel and former Georgia Supreme Court Chief Justice Leah Ward Sears, now a partner with Smith Gambrell & Russell.

“We are currently studying the opinion of the Court of Appeals, but you should know that we do plan to appeal this case to the Georgia Supreme Court,” Sears said Friday by email.

Sears worked with Colin Delaney of Smith Gambrell. Daniel Huff and Taylor Tribble of Huff Powell & Bailey tried the case. The appellate team also included David Flint and Michael Flint of Schreeder Wheeler & Flint.

The case is Trabue v. Atlanta Women's Specialists, No. A18A1508.