Jay Sadd (left) of Slappey & Sadd and John E. Hall of Hall Booth Smith (Courtesy photos)

A $15 million settlement has been reached in a medical malpractice lawsuit nearly a year after a $22 million verdict was thrown out over an incorrect jury charge.

The jury charge issue, which split the Court of Appeals before the state justices weighed in, centered on defense claims that the jury was improperly allowed to consider claims for both ordinary negligence and professional malpractice against the defendant doctor and his co-defendants.

“The case was ready to be re-tried, but the family decided it was time to settle when $15 million was offered,” said Slappey & Sadd partner Jay Sadd, who represented the husband of Gwendolyn Brown with firm partner Edward Wynn. 

“They had their day in court and felt that the important work of getting justice for what was done to (Gwendolyn Brown) had been done,” Sadd said. “They wanted the world to know what a beautiful person she was and wanted to do something to deter the same thing from happening to other people. The Brown family feels Iike they accomplished that.”

Hall Booth Smith partner John Hall, who represented the defendants with firm partner Nichole Hair and Carlock Copeland & Stair partner David Root, did not respond to requests for comment.

The case involved a 2008 incident in which Gwendolyn Brown went to the Southeastern Pain & Surgery Center to be treated for back pain.

Anesthesiologist and pain management specialist Dennis Doherty administered spinal steroid injections, as he had done previously without incident. But in this case, shortly after Doherty began the procedure, a monitor went off indicating a drop in oxygen levels. Doherty said the device was malfunctioning, instructed a nurse to increase Brown's oxygen supply and continued the procedure.

A second oxygen monitor was hooked up and it, too, began sounding, and a blood pressure monitor also indicated a problem.

Another nurse came in and prepared to revive Brown, but Doherty said everything was “fine” and finished up the procedure.

Brown's oxygen levels were very low, and a nurse asked whether to call 911, but Doherty said no. Brown didn't fully respond, and emergency responders were called a couple of hours later.

She was diagnosed at the hospital with acute respiratory failure and suffered a catastrophic brain injury. She died six years later.

Brown's husband, Sterling Brown, sued Doherty, a nurse, Southeastern Pain Specialist P.C. and the affiliated surgery center in Fulton County State Court.

After a trial before Judge Diane Bessen, the jury cleared the nurse of liability but awarded nearly $22 million against Doherty and the corporate defendants.

They appealed, arguing among other things that Bessen should not have allowed the jury to consider ordinary negligence and 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 three dissenting judges, said 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 Georgia Supreme Court agreed with the dissenters in March 2018.

Writing for a unanimous court, Justice Nels Peterson said that medical providers do owe a duty of ordinary care to their patients, and a breach of that duty is ordinary negligence.

“If the alleged negligent act or omission does not require the exercise of medical judgment,” he said, “the alleged tortfeasor's possession of medical credentials does not make the case one of medical malpractice.”

But in Doherty's case, he said, the trial judge charged the jury on ordinary negligence based on the assumption that even a layperson would know that the monitor readings were abnormal and that immediate action was needed.

But even if alarms were going off, “it does not follow that lay persons would know the proper response to that information in the midst of a complex medical procedure,” he wrote.

“It was error to charge the jury on ordinary negligence based on the premise that whether and how to respond to medical data from medical devices during a medical procedure does not require medical judgment,” Peterson said.

Doherty's response, proper or not, was an exercise of medical judgment, he wrote, mandating a new trial.  

The case was on Bessen's trial calendar when the parties announced a settlement and was dismissed on April 15.