Ga. Clinic, P.C. v. Stout

• Decision Date: 15 July 2013
• Docket Number: No. A13A0646.,A13A0646.
• Citation: 323 Ga.App. 487,747 S.E.2d 83
• Parties: GEORGIA CLINIC, P.C., et al. v. STOUT, et al.
• Court: Georgia Court of Appeals

323 Ga.App. 487

747 S.E.2d 83

GEORGIA CLINIC, P.C., et al.

v.STOUT, et al.

No. A13A0646.

Court of Appeals of Georgia.

July 15, 2013.

Mark W. Wortham, W. Scott Henwood, Atlanta, for Georgia Clinic, P.C., et al.

Joshua Sacks, Atlanta, Peter Andrew Law, for Stout, et al.

RAY, Judge.

After receiving an injection in her arthritic knee at the Georgia Clinic, P.C., Cho Kim developed a painful and difficult to treat knee infection; a few months later, she committed suicide. Claiming that the injection to Kim's knee caused the infection and her suicide, Chum Sook Park, as next of kin, and Herman Edward Stout, as the administrator of Kim's estate (collectively, “plaintiffs”), filed the instant medical malpractice suit seeking compensatory and punitive damages against the following defendants: Georgia Clinic, P.C.; Yong Kwon, P.A.; William Eyzaguirre, M.D.; and Naresh Parikh, M.D. (collectively, “defendants”). After trial, the jury found in favor of the plaintiffs and awarded compensatory and punitive damages against the defendants. The defendants appeal from the denial of their motion for a new trial, or in the alternative, for j.n.o.v.¹

The defendants argue that the trial court erred in denying their motions for the following reasons: (1) the evidence presented at trial was insufficient to support an award of compensatory and punitive damages; (2) the evidence presented at trial was insufficient to show that a failure to supervise was a proximate cause of the plaintiffs' damages; (3) the trial court erred in rendering a judgment on a void verdict; (4) the punitive damages were excessive; (5) the plaintiffs' expert testimony was speculative; and (6) the trial court's jury instructions were in error. Finding no reversible error, we affirm.²

When a jury returns a verdict that the trial court enters as a judgment, that judgment “must be affirmed on appeal if there is any evidence to support the verdict, because the jurors are the exclusive judges of the weight and credibility of the evidence. We must construe the evidence with every inference and presumption in favor of upholding the verdict.” (Citation omitted.) Sagon v. Peachtree Cardiovascular and Thoracic Surgeons, P.A., 297 Ga.App. 379, 677 S.E.2d 351 (2009).

So viewed, the evidence presented at trial shows that on January 15, 2009, Kim, who was 86 years old, went to the Georgia Clinic in Doraville seeking treatment for her arthritic knee. Kim was examined by Kwon, a physician's assistant, who injected her left knee with medication drawn from a multi-dose vial. Because the injection was not administered properly under sterile conditions, Kim's knee was infected with methicillin-sensitive staphylococcus aureus (“MSSA”). Four other patients of the clinic were also infected with MSSA from the same multi-dose vial over a five-day period.

At the time of the injection, Kwon was supervised by Dr. Eyzaguirre, a physician who worked part-time at the clinic, and Dr. Parikh, the owner of eleven Georgia Clinic locations. Kwon had examined Kim at the Georgia Clinic several times in the past and had noted symptoms of depression and anxiety, but he never prescribed her medicine or referred her to seek treatment for these symptoms.

After receiving the injection, Kim returned to the clinic on three occasions, complaining of fevers, chills and redness in her knee and she received antibiotics. After her third visit, Dr. Eyzaguirre instructed Kwon to send Kim to the hospital, where after it was determined that she had a septic knee caused by MSSA, she underwent a surgical procedure. After returning home, Kim continued taking antibiotics until they were discontinued during a follow-up appointment with her doctor on February 27, 2009.

On March 9, 2009, Kim committed suicide by jumping from the window of her 14th floor apartment. She left behind a suicide note stating, in Korean, “pain in leg ... I can't take it no more ... better to die ... I'm sorry.”

During her stay at the hospital, one of Kim's treating physicians became alarmed that Kim's infection might be part of an outbreak and contacted Dr. Kathryn Arnold, an epidemiologist at the Centers for Disease Control and Prevention, to conduct a further investigation of the Georgia Clinic. Dr. Arnold, along with representatives from DeKalb County and the Georgia Division of Public Health, conducted an investigation of the Georgia Clinic. The report created by these entities noted that their investigation of the Georgia Clinic revealed “abundant evidence of poor infection control practices ... and inadequate environmental cleaning and disinfection practices” including “1) re-use of multi-dose medication in an uncontrolled environment; 2) inadequate hand hygiene ... and 3) inappropriate cleaning and disinfection agents contributing to inadequate care of medical equipment.” The report concluded that the infection control lapses at the clinic constituted “a serious threat to public health.”

Dr. Richard Berg testified at trial for the plaintiffs as an expert on infectious diseases. He testified that the five-person outbreak of MSSA “is one of those things that should almost never happen, if ever happen.” He opined that the primary lapses indicating poor infection control practices at the Georgia Clinic were namely “poor hand-washing ... no sterile field ... the use of multi-dose vials ... [and] a pattern of misunderstanding the most rudimentary issues in infection control.”

The plaintiffs filed the present complaint against the defendants, alleging negligence and professional negligence against all defendants, and vicarious liability and respondeat superior against Georgia Clinic, Dr. Eyzaguirre,and Dr. Parikh. The complaint sought both compensatory and punitive damages. At trial, the defendants stipulated that their “ negligence and breaches in the standard of care in giving Ms. Kim a knee injection on January 15, 2009[,] directly and proximately caused Ms. Kim to suffer a knee infection.” The defendants further stipulated that Kim's estate was “entitled to recover damages for hospital and medical bills, and for conscious pain and suffering relating to the knee infection,” and acknowledged that Kim incurred $60,684.37 in medical expenses relating to the knee infection. The defendants did not, however, stipulate that Kim's knee infection contributed to her suicide.

At the close of the plaintiffs' case, the defendants moved for a directed verdict, which was denied. Later, the jury returned a verdict in favor of the estate in the following amounts: $400,000 in compensatory damages to Park, the next of kin, for the “infection” claim; and $500,000 in compensatory damages to the plaintiffs for the “wrongful death” claim. In a bifurcated proceeding, the jury awarded the following punitive damages awards to the plaintiffs: $750,000 against Georgia Clinic; $750,000 against Kwon; $1,000,000 against Dr. Parikh; and $0 against Dr. Eyzaguirre. The trial court entered judgment jointly and severally against all defendants as to the compensatory damages, and capped the punitive damages award at $250,000 because the jury found that the defendants did not act with the specific intent to cause harm.³ See OCGA § 51–12–5.1(f)– (g). The defendants appeal from the trial court's denial of their motions for a directed verdict and for a new trial or j.n.o.v.

1. In two enumerations of error, the defendants allege that the evidence presented at trial did not demonstrate by clear and convincing evidence that the defendants exhibited an entire want of care and an indifference to consequences sufficient to warrant an award of punitive damages. Specifically, the defendants argue that punitive damages were not warranted because Kim's MSSA infection was caused by a single incident of negligence or “human error,” and that the evidence did not show that the corporation failed to implement and supervise protocols and policies for hygienic practices. We disagree.

An award of punitive damages may be authorized when it is proven by clear and convincing evidence that the “circumstances of the tort show an entire want of care and an indifference to consequences. Wilful and intentional misconduct is not essential.” (Citation omitted.) Hoffman v. Wells, 260 Ga. 588(1), 397 S.E.2d 696 (1990). See also OCGA § 51–12–5.1(b). However, “negligence, even gross negligence, is not sufficient to support an award of punitive damages.” (Citation omitted.) COMCAST Corp. v. Warren, 286 Ga.App. 835, 839(2), 650 S.E.2d 307 (2007). Because punitive damages require a finding of some form of culpable conduct under OCGA § 51–12–5.1(b), “conscious indifference to consequences” requires a finding that a defendant had “an intentional disregard of the rights of another, knowingly or wilfully.” (Citation omitted.) Id.

When reviewing a trial court's denial of a motion for directed verdict or the denial of a motion for new trial concerning punitive damages, this Court “must determine as a matter of law whether the evidence was sufficient under the clear and convincing standard.” (Citation omitted.) Id. The clear and convincing standard “is an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt.” (Citation and punctuation omitted.) Id. at 839–840(2), 650 S.E.2d 307.

In the present case, all of the defendants, including the corporation, stipulated as to liability and that their “negligence and breaches in the standard of care” were the proximate cause of Kim's knee infection. The evidence further showed that Kim's infection was not an isolated incident, because four other patients were infected with MSSA from the same multi-dose vial of medication. Dr. Berg, an expert in infectious diseases, opined that the multi-dose vial was contaminated because the clinic did not maintain sterile conditions or follow proper protocols when administering and storing the drug....