Atlanta Women's Specialists, LLC v. Trabue

310 Ga. 331

850 S.E.2d 748

ATLANTA WOMEN'S SPECIALISTS, LLC et al.

v.TRABUE et al.

Angus

v.Trabue et al.

Angus

v.Trabue et al.

Angus

v.Trabue et al.

Atlanta Women's Specialists, LLC et al.

v.Trabue et al.

S19G1138

S19G1140

S19G1141

S19G1142

S19G1143

Supreme Court of Georgia.

Decided: November 2, 2020

David H. Flint, Michael David Flint, Jamie Lee Kastler, Schreeder, Wheeler & Flint, LLP, 1100 Peachtree Street, N.E. Suite 800, Atlanta, Georgia 30309-4516, for Appellant in S19G1138 and S19G1140 and S19G1141 and S19G1142.

Laurie Webb Daniel, Matthew D. Friedlander, Holland & Knight, LLP, Suite 2000, One Atlantic Center 1180 West Peachtree Street, Suite 1800, Atlanta, Georgia 30309-3400, Leah Ward Sears, Colin Dang Delaney, Smith, Gambrell & Russell, LLP, Promenade, Suite 3100 1230 Peachtree Street N.E., Atlanta, Georgia 30309, Daniel James Huff, Taylor Marie Tribble, for Appellant in S19G1143.

William Sims Stone, James William Stone, Law Offices of William S. Stone, P.O. Drawer 70 589 College Street, Blakely, Georgia 39823, Michael George Regas, Ryals Drayton Stone, The Stone Law Group – Trial Lawyers, LLC, 5229 Roswell Road, NE, Atlanta, Georgia 30342, Michael Brian Terry, Naveen Ramachandrappa, Bondurant, Mixson & Elmore, LLP, 1201 West Peachtree Street N.W. Suite 3900, Atlanta, Georgia 30309-3417, for Appellee.

Laurie Webb Daniel, Matthew D. Friedlander, Holland & Knight, LLP, Suite 2000, One Atlantic Center 1180 West Peachtree Street, Suite 1800, Atlanta, Georgia 30309-3400, Leah Ward Sears, Colin Dang Delaney, Smith, Gambrell & Russell, LLP, Promendade II, Suite 3100 1230 Peachtree Street, NE, Atlanta, Georgia 30309, Daniel James Huff, Taylor Marie Tribble, Huff Powell & Bailey, LLC, 999 Peachtree Street, N.E. Suite 950, Atlanta, Georgia 30309, for Other Party in S19G1138 and S19G1140 and S19G1141 and S19G1142.

David H. Flint, Michael David Flint, Jamie Lee Kastler, Schreeder, Wheeler & Flint, LLP, 1100 Peachtree Street, N.E. Suite 800, Atlanta, Georgia 30309-4516, for Other Party in S19G1143.

Keri Fielder Conley, Georgia Hospital Association, 1675 Terrell Mill Road, Marietta, Georgia 30067, Donald J. Palmisano, Medical Association of Georgia, 1849 The Exchange Suite 200, Atlanta, Georgia 30339, Tracy Morgan Baker, Wellstar Health System, Inc., 793 Sawyer Rd, Marietta, Georgia 30062, Judson Herben Turner, Gilbert Harrell Sumerford & Martin, P.C., 777 Gloucester St, Ste 200, Brunswick, Georgia 31520, Amy W. Adelman, Emory University, 101 Dowman Drive 201 Dowman Drive, Atlanta, Georgia 30322, David Christopher Hanson, Jessica To Holland, Paul E. Weathington, Weathington McGrew, P.C., 191 Peachtree Street NE Suite 3900, Atlanta, Georgia 30303, William Thomas Worthy, State Bar of Georgia, 104 Marietta St. NW Suite 100, Atlanta, Georgia 30303, Elizabeth McFall Leddy, Piedmont Healthcare, Inc., 1800 Howell Mill Rd, Ste 850, Atlanta, Georgia 30318, for Amicus Appellant in S19G1138 and S19G1143.

Donald J. Palmisano, Medical Association of Georgia, 1849 The Exchange Suite 200, Atlanta, Georgia 30339, Keri Fielder Conley, Georgia Hospital Association, 1675 Terrell Mill Road, Marietta, Georgia 30067, Amy W. Adelman, Emory University, 101 Dowman Drive 201 Dowman Drive, Atlanta, Georgia 30322, Elizabeth McFall Leddy, Piedmont Healthcare, Inc., 1800 Howell Mill Rd, Ste 850, Atlanta, Georgia 30318, for Amicus Appellant in S19G1140 and S19G1141.

Keri Fielder Conley, Georgia Hospital Association, 1675 Terrell Mill Road, Marietta, Georgia 30067, Donald J. Palmisano, Medical Association of Georgia, 1849 The Exchange Suite 200, Atlanta, Georgia 30339, Tracy Morgan Baker, Wellstar Health System, Inc., 793 Sawyer Rd, Marietta, Georgia 30062, Judson Herben Turner, Gilbert Harrell Sumerford & Martin, P.C., 777 Gloucester St, Ste 200, Brunswick, Georgia 31520, Amy W. Adelman, Emory University, 101 Dowman Drive 201 Dowman Drive, Atlanta, Georgia 30322, David Christopher Hanson, Jessica To Holland, Paul E. Weathington, Weathington McGrew, P.C., 191 Peachtree Street NE Suite 3900, Atlanta, Georgia 30303, Elizabeth McFall Leddy, Piedmont Healthcare, Inc., 1800 Howell Mill Rd, Ste 850, Atlanta, Georgia 30318, for Amicus Appellant in S19G1142.

Boggs, Justice.

We granted certiorari to the Court of Appeals in these five consolidated appeals to address two discrete issues – one related to pleading vicarious liability, and the other related to vicarious liability and apportionment. See Trabue v. Atlanta Women's Specialists, LLC , 349 Ga. App. 223, 825 S.E.2d 586 (2019). Specifically, we asked the parties to brief the following two questions: (1) Did the Court of Appeals err in holding that the plaintiffs in this medical malpractice action sufficiently pled a claim for vicarious liability against defendant Atlanta Women's Specialists, LLC (AWS) based on the conduct of Dr. Rebecca Simonsen?; and (2) Did the Court of Appeals err in holding that, to obtain apportionment of damages with regard to the negligence of Dr. Simonsen, the defendants were required to comply with OCGA § 51-12-33 (d) by filing a pretrial notice of nonparty fault? As explained below, we answer both questions in the negative and affirm the Court of Appeals’ judgment.

1. In August 2009, Keith Trabue's wife, Shannon, suffered a catastrophic brain injury resulting from pulmonary edema leading to full cardiac arrest within days of giving birth to the couple's daughter at Northside Hospital in Atlanta. At the hospital, Shannon was treated by physician-employees of AWS, including Dr. Stanley Angus and Dr. Simonsen. Trabue and the bank serving as his wife's conservator (Plaintiffs) later filed a medical malpractice action naming as defendants only Dr. Angus and AWS, although the complaint contained allegations regarding Dr. Simonsen's conduct and alleged that AWS was vicariously responsible for the acts and omissions of both Dr. Angus and Dr. Simonsen.¹ The complaint did not allege any independent acts of negligence on the part of AWS.

At a two-week trial in 2017, after the close of the evidence, Dr. Angus and AWS, who were represented by the same counsel, asked the court to require the jury to assess the percentages of fault of Dr. Angus and Dr. Simonsen and to apportion the damages between Dr. Angus and AWS under OCGA § 51-12-33 (b), which says:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person....

The trial court denied the request to require the jury to apportion damages between Dr. Angus and AWS based on the percentages of fault of Dr. Angus and Dr. Simonsen. The court relied in part on OCGA § 51-12-33 (d), which says:

(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

It is undisputed that Plaintiffs did not enter into a settlement agreement with Dr. Simonsen and that neither Dr. Angus nor AWS filed a pretrial pleading alleging that Dr. Simonsen was wholly or partially at fault for Shannon's injuries.

The jury found in favor of Plaintiffs. On a special verdict form, the jury found that negligence by both Dr. Angus and Dr. Simonsen was a contributing proximate cause of Shannon's injuries. The jury awarded Plaintiffs almost $46 million in damages.

Dr. Angus and AWS filed a motion for new trial, arguing among other things that the trial court erred by not requiring the jury to assess the percentages of fault of Dr. Angus and Dr. Simonsen and to apportion the damages between Dr. Angus and AWS accordingly. The trial court agreed and ordered a new trial on the issue of apportionment but otherwise denied the motion.

On interlocutory appeal, Dr. Angus and AWS, now represented by separate counsel, argued among other things that Plaintiffs did not sufficiently plead a claim for vicarious liability against AWS based on the conduct of Dr. Simonsen. Plaintiffs, for their part, argued among other things that the trial court erred in ordering a new trial as to apportionment because Dr. Angus and AWS did not file a notice designating Dr. Simonsen as a nonparty who was wholly or partially at fault for Shannon's injuries, as required by OCGA § 51-12-33 (d). The Court of Appeals rejected Dr. Angus and AWS’ pleading argument and reversed the grant of a new trial as to apportionment, in part due to Dr. Angus and AWS’ failure to comply with OCGA § 51-12-33 (d). Further facts can be found in the opinion of the Court of Appeals. See Trabue , 349 Ga. App. at 224-227, 825 S.E.2d 586.

2. Dr. Angus and AWS contend that Plaintiffs did not sufficiently plead a claim for vicarious liability against AWS based on Dr. Simonsen's conduct. We disagree.

Georgia is a notice pleading jurisdiction. See Bourn v. Herring , 225 Ga. 67, 70, 166 S.E.2d 89 (1969) ("The Civil Practice Act ... has eliminated issue pleading and substituted notice pleading." (citation omitted)).

Generally, our Civil Practice Act (CPA) advances liberality of pleading. Under OCGA § 9-11-8 (a) (2), an original complaint, or any other pleading that sets forth a claim for relief, shall contain a short and plain statement of the claims showing that the pleader is entitled to relief and a demand for judgment for the relief to which the pleader deems himself entitled. Under this provision, a complaint need

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