Doherty v. Brown
| Decision Date | 18 November 2016 |
| Docket Number | A16A0765,A16A0763,A16A0764,A16A0766 |
| Citation | 339 Ga.App. 567,794 S.E.2d 217 |
| Parties | Doherty v. Brown et al. Brown et al. v. Southeastern Pain Specialists, P.C. et al. Southeastern Pain Ambulatory Surgery Center, LLC. v. Brown et al. Southeastern Pain Specialists P.C. v. Brown et al. |
| Court | Georgia Court of Appeals |
John E. Hall Jr., Albany, Nichole Lee Hair, Nathan Alexander Gaffney, Atlanta, for Appellant in A16A0763.
William Curtis Anderson, Marietta, Edward M. Wynn, David Frank Root, Daniel Marshall Epstein, Frank Mitchell Lowrey IV, Atlanta, James Nicholas Sadd, Neil Thomas Edwards, for Appellee in A16A0763.
Edward M. Wynn, Atlanta, James Nicholas Sadd, for Appellant in A16A0764.
William Curtis Anderson, Judith Ashe Blackwell, Marietta, John E. Hall Jr., Albany, Nichole Lee Hair, Wayne D. McGrew III, David Frank Root, Michael James Walker, Nathan Alexander Gaffney, Frank Mitchell Lowrey IV, Robert L. Ashe III, Atlanta, Neil Thomas Edwards, for Appellee in A16A0764.
David Frank Root, Frank Mitchell Lowrey IV, Robert L. Ashe III, Atlanta, Neil Thomas Edwards, for Appellant in A16A0765.
William Curtis Anderson, Judith Ashe Blackwell, Marietta, John E. Hall Jr., Albany, Nichole Lee Hair, Edward M. Wynn, Michael James Walker, Daniel Marshall Epstein, Atlanta, James Nicholas Sadd, for Appellee in A16A0765.
William Curtis Anderson, Marietta, for Appellant in A16A0766.
John E. Hall Jr., Albany, Nichole Lee Hair, Edward M. Wynn, David Frank Root, Daniel Marshall Epstein, Frank Mitchell Lowrey IV, Robert L. Ashe III, Atlanta, James Nicholas Sadd, Neil Thomas Edwards, for Appellee in A16A0766.
These companion appeals arise from a medical malpractice action brought on behalf of Gwendolyn Lynette Brown, which alleged that she suffered catastrophic brain damage from oxygen deprivation while undergoing a procedure to relieve back pain. Mrs. Brown died while this suit was pending, and her complaint was amended to add a wrongful death claim by her surviving spouse, Sterling Brown, Sr., who was also added as the administrator of her estate (hereinafter collectively "Brown" unless otherwise noted.) The defendants included Dennis Doherty, D.O., Southeastern Pain Specialists, P.C. ("the P.C."), Southeastern Pain Ambulatory Surgery Center, LLC. ("the Surgery Center"), Ann Yearian, R.N., and Mary Hardwick, R.N.1
The trial was trifurcated into a liability phase, a punitive liability phase, and a punitive damages phase. In phase 1 of the trial, the jury found the defendants liable for Brown's injury and apportioned fault at 50 percent to Dr. Doherty, 30 percent to the Surgery Center, 20 percent to the P.C., and 0 percent to Hardwick. In phases 2 and 3 of the trial, the jury found Doherty liable for punitive damages, but awarded nothing for punitive damages. A final judgment totaling $21,981,093.29 in damages was awarded to Mr. Brown as the surviving spouse and to Mrs. Brown's estate.
In Case No. A16A0763, Dr. Doherty contends that the trial court erred in charging the jury on ordinary negligence, in denying his motion for directed verdict on any claims for ordinary negligence or for conduct occurring after 5:40 p.m., in excluding expert testimony, and in failing to declare a mistrial based on improper character evidence. In Case No. A16A0764, Brown appeals and contends that the trial court erred during the liability phase of the trial in failing to admit certain evidence about Doherty's conduct, and in failing to declare a mistrial when Doherty placed evidence of his financial condition and liability insurance before the jury.
In Case No. A16A0765, the Surgery Center appeals and contends that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict (JNOV) because there was no evidence that any agent of the Surgery Center breached any duty causing an injury to Brown. And, in Case No. A16A0766, the P.C. contends that the trial court erred in not granting a JNOV based on the jury's apportionment of damages against it, and in not granting a directed verdict or JNOV based on Brown's failure to establish that the defendants committed any wrongful acts that proximately caused Brown's death.
Dr. Doherty, a board-certified anesthesiologist and pain management specialist, began treating Mrs. Brown in 2008 for chronic back pain. Doherty performed two epidural steroid injection procedures
("ESI") on Mrs. Brown in the fall of 2008 without incident. During an ESI, steroid medication is injected into the epidural space in the spine to reduce inflammation and relieve pain. The procedures were performed at the Surgery Center, which Doherty had opened in 2006, and where Hardwick was the administrator and nursing director.
On September 16, 2008, Mrs. Brown arrived at the Surgery Center with her daughter-in-law for a 10:00 a.m. appointment for a third bilateral ESI to be performed under conscious sedation. At approximately 2:45 p.m. Hardwick performed Mrs. Brown's patient pre-op, which included taking her medical history, recording her vital signs, and starting an intravenous line. Afterward, Mrs. Brown napped while she waited to be taken to the operating room for the procedure.
At approximately 4:40 p.m., Yearian, the operating room nurse, took Mrs. Brown to the operating room, at which time Yearian gave her "two milligrams of Versed IV push and 50 mics of Fentanyl
." Fentanyl is a pain reliever, and Versed is a relaxant. Mrs. Brown was also given oxygen at a flow of 3 to 5 liters through a nasal cannula. Mrs. Brown's oxygen level at this point was at 100 percent. Michelle Perkins, the surgical tech, and Yearian placed Mrs. Brown in a prone position on the surgical table, and because Doherty was running late, Perkins had to leave the room three times to tell Doherty that Mrs. Brown was ready for the procedure.2 Doherty came into the operating room approximately 50 minutes after Mrs. Brown was brought in, and after administering propofol
, a short-acting medication that decreases consciousness and memory, he started the procedure at 5:30 p.m. Shortly thereafter, Mrs. Brown's oxygen level began to drop "rapidly."
The pulse oximeter
that was used to monitor Mrs. Brown's blood oxygen saturation level sounded an alarm, indicating a drop in the level of oxygen in her blood. Perkins testified that the alarm goes off if the oxygen level drops below 90 percent, and Yearian testified that she is generally alarmed when the oxygen level drops below "94 or 92." Doherty responded to the oxygen saturation decline by instructing Yearian to increase the oxygen flow to 5 liters, and by physically assessing Mrs. Brown's breathing and oxygenation level, after which he concluded that she was still breathing. However, Perkins remained concerned, and believed that Mrs. Brown was not breathing and asked Doherty several times if she could turn the oxygen level up higher, but he instructed her to "get back over to the C-Arm."3 Perkins asked Doherty if she should call Hardwick, but he responded "no," because "the patient was breathing and the airway was good." Still concerned about Mrs. Brown's breathing and feeling "helpless," Perkins surreptitiously sent a text to Nurse Hardwick, saying simply, "Come." Perkins testified that she kept her cell phone in her pocket while she sent the text so that Doherty could not see her text Hardwick.
When Hardwick arrived, Mrs. Brown was lying face down on the table with injection needles placed in her back, Doherty was standing at the head of the table holding her jaw to maintain an airway, and the pulse oximeter
was registering zero while its alarm sounded. In her incident report, Perkins wrote that when Hardwick walked in "you could see from the way [Yearian] and Dr. Doherty were holding the [Mrs. Brown's] airway and looking at the O2 stat [that] there was a problem."
Hardwick grabbed a stretcher so that Mrs. Brown could be turned on her back to be resuscitated, but Doherty told Hardwick that the pulse oximeter
was malfunctioning, that Mrs. Brown had a pulse, and that she was breathing. Hardwick testified that she observed Mrs. Brown's back "rising and falling in what appear[ed] to be a normal rhythm."
Doherty told Hardwick that the "pulse oximeter
is not indicative of what her true oxygen saturation is," so Perkins retrieved a second pulse oximeter and Hardwick placed it on Mrs. Brown's toe, but its alarm also sounded and both monitors had a reading of zero oxygen saturation. During this time, the blood pressure monitor was also recycling, which indicated that it was not detecting a blood pressure. Doherty maintained that everything was "fine" and continued to demonstrate to Yearian how to "hold the airway."
Yearian took over for Doherty to maintain Mrs. Brown's airway while Doherty finished the procedure. Hardwick and another staffer who was called in to assist held up Mrs. Brown's shoulders to "help take some weight off her chest to maybe get her better oxygenated without getting in ... Doherty's way ... so he could finish the procedure." After Doherty completed the procedure, and the needles were removed, Doherty maintained the airway while the others turned Mrs. Brown over and Doherty administered Narcan
and Romazicon, sedation-reversal drugs. Mrs. Brown's oxygen flow level was also increased to 15 liters. The procedure was completed at 5:48 p.m.
The "first stats" recorded after the procedure reflected an oxygen level registering "in the 50s ... and [Doherty] started bag-masking" her. After a few minutes of ventilating Mrs. Brown with the airbag, her oxygen levels rose to the 90s. Hardwick asked if she could call 911, but Doherty replied "no," that Mrs. Brown was just heavily sedated.
Mrs. Brown's daughter-in-law testified that she was brought to the recovery room and Doherty instructed her to talk to Mrs. Brown and "keep trying to stimulate her," but the daughter-in-law testified that Mrs. Brown "would just open her eyes like she was trying to talk and she was spitting." Doherty reassured...
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