Med. Staffing Network, Inc. v. Connors

• Decision Date: 24 January 2012
• Docket Number: JE-087,A11A1927
• Parties: MEDICAL STAFFING NETWORK, INC. v. CONNORS et al.
• Court: Georgia Court of Appeals

MEDICAL STAFFING NETWORK, INC. v. CONNORS et al.

A11A1927

JE-087

Court of Appeals of Georgia

January 24, 2012

THIRD DIVISION

ELLINGTON, C. J., DOYLE, P. J., and MILLER, J.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

Ellington, Chief Judge.

Janet Rowland, the widow of William Rowland, and the estate of William Rowland (collectively, "the Rowlands") brought this medical malpractice action in the State Court of DeKalb County against DeKalb Medical Center ("the hospital") and Medical Staffing Network, Inc., a temporary staffing agency.¹ The hospital filed a cross-claim for indemnification against Medical Staffing, which employed a nurse whose negligence allegedly injured William Rowland and caused his death. A jury trial resulted in a verdict in favor of the Rowlands. Ultimately, the trial court entered judgment in favor of the Rowlands on the jury's verdict and in favor of the hospital on its cross-claim. Medical Staffing appeals, challenging the judgment along with the trial court's rulings on a number of post-trial motions.

The following facts are undisputed. In July 2005, William Rowland was seriously injured in a vehicular accident and received long-term acute care at the hospital. At the time, Medical Staffing was under contract with the hospital to supply the hospital with temporary medical personnel as needed. Peggy Howard, a licensed practical nurse employed by Medical Staffing, worked the overnight shift from 7:00 p.m. on August 13 to 7:00 a.m. on August 14, 2005, and was primarily responsible for William Rowland's care that night. William Rowland developed hypotension (low blood pressure) that night, but Howard did not discover his worsening condition until she checked on him at 5:20 a.m.

The Rowlands brought suit against the hospital on December 7, 2007, claiming that Howard negligently failed to monitor William Rowland's vital signs and that, as a result of the delay in treatment, he suffered injuries, including severe brain damage, which resulted in his death on December 8, 2005. They added Medical Staffing as a party defendant in March 2008.

In her deposition, Howard testified that a nursing assistant was responsible for taking her patients' blood pressure and reporting the results to her. According to Howard, the delay in treatment was the nursing assistant's fault because he failed to inform her of William Rowland's low blood pressure readings. Tyrone Ogburn, an employee of the hospital, was identified as that nursing assistant.

The hospital stipulated that Howard was its apparent agent and, therefore, that it was liable if she committed malpractice. In addition, Medical Staffing stipulated that, pursuant to an indemnity provision in its staffing contract with the hospital,² Medical Staffing would be responsible for any damages the jury awarded the Rowlands to the extent the jury apportioned the fault to Howard.

The trial court submitted the case to the jury using a special verdict form. The jury found that both Howard and Ogburn were negligent and that their negligence proximately caused William Rowland's injury and death. The jury apportioned fault 95 percent to Howard and 5 percent to Ogburn. The jury awarded the estate $364,279.40 for William Rowland's medical bills and $1 million for his pain and suffering and awarded Janet Rowland $2.5 million on her wrongful death claim.

1. Medical Staffing contends that the trial was fundamentally unfair because the Rowlands and the hospital concealed until after the verdict that, on the first day of trial, they had entered into an agreement which allowed the hospital to reduce or eliminate its financial exposure in exchange for certain conduct during the litigation that would increase Medical Staffing's liability. As a result, Medical Staffing contends, the trial court erred in denying its motion for a new trial based on the existence of the secret litigation agreement.

A trial court may grant a new trial "in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial." OCGA § 5-5-23. To satisfy this standard, the applicant must show, inter alia, that the newly discovered evidence "was so material as to make a different verdict likely[.]" (Citation omitted.) Flowers v. Union Carbide Corp., 271 Ga. App. 438, 442 (3) (b) (610 SE2d 109) (2005). "The grant or denial of a new trial on the ground of newly discovered evidence is not favored and is addressed to the trial court's sound discretion." (Footnote omitted.) Gill v. Spivey, 264 Ga. App. 723, 724 (1) (592 SE2d 132) (2003). Accordingly, "[a] trial court's denial of a motion for new trial on the ground of new evidence will not be reversed absent an abuse of discretion." (Citation omitted.) Flowers v. Union Carbide Corp., 271 Ga. App. at 443 (3) (b).

The record shows that the agreement the Rowlands and the hospital executed on the first day of trial provided as follows:

(1) In the event of a verdict against the Rowlands and in favor of the hospital, the hospital would pay the Rowlands $50,000.

(2) In the event of a verdict in favor of the Rowlands and against the hospital, the hospital would diligently pursue its cross-claim against Medical Staffing and, if it prevailed, it would pay the Rowlands the amount it recovered from Medical Staffing. The Rowlands agreed, in that event, not to enforce the remainder of the judgment (if any) against the hospital.

(3) In the event of a verdict in favor of the Rowlands and against the hospital, and in the event the hospital failed to prevail on its cross-claim against Medical Staffing, the hospital agreed to pay the Rowlands $50,000 if the verdict was $50,000 or less; the amount of the verdict, if the verdict was more than $50,000 but less than $100,000; or $100,000, if the verdict was $100,000 or more. Again, the Rowlands agreed not to enforce the remainder of the judgment against the hospital.

Thus, the Rowlands were assured of receiving at least $50,000, and the hospital's ultimate financial exposure was limited to $100,000.

Medical Staffing contends that

[t]he sole purpose of this secret Agreement was to avoid liability of [the hospital] and to obtain an inflated damages verdict against [Medical Staffing], so that [the hospital] could later collect on the verdict as the fiduciary for [the Rowlands], and based on an indemnification theory against [Medical Staffing], give the monies to [the Rowlands], $2,500,000 of which was actually barred against [Medical Staffing] because the statute of limitation[ ] on the wrongful death claim had expired [before the Rowlands amended their complaint to add Medical Staffing as a party defendant]. The Agreement smacks of such questionable contractual obligations that [the Rowlands] and [the hospital] had an affirmative duty to voluntarily disclose the Agreement to [Medical Staffing] and to the Trial Court[.]

(Emphasis in original.)³

First, we note that the fact that the statutory limitation period expired before the Rowlands asserted the wrongful death claim against Medical Staffing did not shield it from those damages, given that the claim was timely as to the hospital, which was derivatively liable for Howard's negligence on the basis of apparent agency,⁴ and that Medical Staffing was contractually obligated to indemnify the hospital for any claims and liabilities relating to Howard's acts and omissions. See Division 4, infra.

Furthermore, we agree with the trial court's conclusion that there is nothing in the record to show that Medical Staffing's ignorance of the litigation agreement rendered the trial fundamentally unfair. Under the circumstances, the primary jury issue as to liability was the apportionment of fault. Because Medical Staffing's contractual obligation to indemnify the hospital for any damages it had to pay on account of Howard's negligence, the hospital had an obvious incentive from the outset to try to show that the Rowlands' damages were entirely Howard's fault, rather than solely or partly the fault of the hospital's own employee. Both the Rowlands and the hospital freely disclosed this alignment of their interests to the jury during opening statements. Further, even if the Rowlands benefitted from the hospital's efforts to enforce its right to indemnity, such incidental benefit did not make the hospital the Rowland's agent.⁵ Under the circumstances of this case, we conclude that the trial court could reasonably find that, even if the Rowlands and the hospital had disclosed their litigation agreement during trial, it is unlikely that the jury would have reached a different verdict. Thus, pretermitting whether Georgia law should limit agreements of this nature, we find no abuse of discretion in the trial court's denial of Medical Staffing's motion for a new trial based on the failure of the Rowlands and the hospital to spontaneously disclose their litigation agreement to Medical Staffing and the court. Gill v. Spivey, 264 Ga. App. at 724 (1).

2. In a related argument, Medical Staffing contends the trial court abused its discretion in denying its post-trial motion to compel the production of any ancillary documents addressing the formation of the litigation agreement between the Rowlands and the hospital. "[A] trial court's decision on a discovery matter will not be disturbed unless a clear abuse of discretion is shown. Also, to prevail on appeal, [Medical Staffing] must show that the alleged error was harmful." (Punctuation and footnote omitted.) Bd. of Regents &c. v. Ambati, 299 Ga. App. 804, 812 (4) (b) (685 SE2d 719) (2009).

Pretermitting whether Medical Staffing's discovery...