TRABUE et al.
ATLANTA WOMEN'S SPECIALISTS, LLC et al. ANGUS
TRABUE et al. ATLANTA WOMEN'S SPECIALISTS, LLC
TRABUE et al. ANGUS
TRABUE et al. TRABUE et al.
DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
Trabue, individually and as guardian of his wife, Shannon
Maria Trabue, and Advocacy Trust of Tennessee, LLC, as her
conservator, filed a renewal medical malpractice action in
Fulton County State Court against Atlanta Women's
Specialists, LLC ("AWS"), and Dr. Stanley R. Angus
after Shannon suffered a catastrophic brain injury four days
after giving birth. The jury awarded the plaintiffs $46
million. The defendants moved for a new trial, arguing that
the trial court erred (1) by permitting evidence of the
alleged negligence of Dr. Rebecca Simonsen, a non-party
physician also employed by AWS, because claims against AWS
for her actions were not raised and were barred by the
statutes of limitation and repose; and (2) by failing to
require the jury to apportion fault between Dr. Angus and AWS
on behalf of Dr. Simonsen in accordance with OCGA §
51-12-33 (b). The trial court rejected the former claim but
granted a new trial on the limited issue of the allocation of
fault between the party defendants based on Dr.
Simonsen's negligence, instructing that "[t]he
jury's prior findings on liability and its calculation of
damages shall remain intact upon the trial as to
apportionment." This Court granted the parties'
interlocutory applications, and these appeals of that order
followed. For the reasons that follow, we affirm in
part, reverse in part, vacated in part, and remand for
proceedings consistent with this opinion.
review de novo the grant of a motion for new trial on special
grounds involving a question of law, and we will
"reverse if the trial court committed legal
viewed, the record shows that on August 21, 2009, 38-year-old
Shannon was admitted to Northside Hospital for induction of
labor due to hypertension and gave birth via cesarean
section. The child was delivered without complications by Dr.
Juanita Wyatt-Hathaway. Shannon's blood pressure remained
persistently elevated, and Dr. Wyatt-Hathaway prescribed an
infusion of magnesium sulfate and a loading dose of
intravenous fluids, and she later prescribed Labetalol and
discontinued the magnesium sulfate. Dr. Simonsen then took
over Shannon's care after being informed of her recent
elevated blood pressure, shortness of breath, decreased
urinary output, and pulse oximetry of 95 percent. Dr. Angus
then assumed control of Shannon's care, and he evaluated
her and increased the Labetalol. At 5:00 p.m. on August 25,
2009, Dr. Angus ordered the insertion of an intravenous line,
lab tests, and a spiral CT scan to rule out a pulmonary
embolism. En route to the CT scan, Shannon sustained a
respiratory arrest, which progressed to a full
cardiopulmonary arrest. She coded at 5:43 p.m., and
resuscitation efforts commenced. A subsequent chest x-ray
revealed pulmonary edema. Consequently, Shannon suffered a
hypoxic brain injury and has been rendered totally disabled.
August 18, 2011, the plaintiffs filed a medical malpractice
action against AWS and Dr. Angus, alleging vicarious
liability against AWS and the negligence of Dr. Angus. The
complaint alleges that Drs. Angus, Wyatt-Hathaway, and
Simonsen were agents of AWS, acting within the scope of their
agency when the proximately caused Shannon's injuries, so
that their wrongful acts and omissions are imputed to AWS,
which is vicariously liable for their acts and omissions. The
plaintiffs also noted therein that they reserved the right to
add Drs. Wyatt-Hathaway and Simonsen as party defendants if
AWS or Dr. Angus alleged that they contributed to
Shannon's injuries. The plaintiffs attached an OCGA
§ 9-11-9.1 expert affidavit by Dr. Paul Gatewood, who
averred that the care and treatment rendered by Dr. Angus
fell below the standard of care required. Dr. Gatewood
offered no opinion as to the negligence of the other
physicians involved in Shannon's care.
7, 2014, the plaintiffs voluntarily dismissed the case
against Dr. Angus and AWS; on August 15, 2014, they filed a
renewal action. The second complaint mirrored the first, with
the exception of an additional expert affidavit from Dr. Eric
Lichter, which essentially tracked that of Dr. Gatewood
except that Dr. Lichter incorporated by reference the
opinions he gave in his deposition in the first
case.During Dr. Lichter's deposition, he
offered standard of care criticisms against the nurses and
Drs. Wyatt-Hathaway, Simonsen, and Angus. His allegations of
negligence in his affidavit, however, pertained only to Dr.
parties filed a consolidated pretrial order in the case on
July 20, 2016. In the plaintiffs' outline of the case,
they expressly stated that Dr. Simonsen's negligence,
along with that of Dr. Angus, caused Shannon's injuries.
Specifically, the plaintiffs alleged that Dr. Simonsen took
over Shannon's care at 8:00 a.m. on August 25, 2009, but
saw Shannon only once during the shift at 10:30 p.m., despite
several calls from nurses advising of serious problems with
Shannon's condition, which put Shannon at a foreseeable
risk of pulmonary edema and cardiopulmonary complications.
The plaintiffs listed the question of Dr. Simonsen's
negligence as one for jury determination, specifying 41
allegations of negligence against her in addition to those
against the named defendants, Dr. Angus and AWS.
August 12, 2016, the defendants filed a motion in limine to
exclude all evidence or argument criticizing Dr. Simonsen and
anyone other than Dr. Angus, arguing that because no claim
has been asserted based on the conduct of Dr. Simonsen,
criticisms of her care should be excluded. On September 12,
2016, the plaintiffs moved to amend the pretrial order to
file Dr. Lichter's amended and supplemental affidavit,
which included allegations of negligence against Dr.
Simonsen. The plaintiffs pointed out that two paragraphs of
the original and refiled complaint alleged that Dr. Simonsen
was an agent and employee of AWS at all applicable times and
that AWS was liable for injuries cased by her wrongful acts
and omissions; that the factual allegations included Dr.
Simonsen's role in Shannon's treatment; that the
defendants did not object to the original or renewed
affidavits of Dr. Lichter; and that the defendants were on
notice of the imputed liability claim, evidenced by their
second affirmative defense, which stated that neither Dr.
Angus nor any other agent or employee violated the applicable
standard of care but rather exceeded it. The defendants
opposed the motion and moved for partial summary judgment,
arguing that the amended affidavit was barred by the statute
of limitations and therefore did not relate back to the
trial court denied the defendants' motions in limine with
regard to evidence criticizing Dr. Simonsen and motions for
partial summary judgment, and it granted the plaintiffs'
motion to amend the pretrial order to file Dr. Lichter's
amended affidavit. During the two-week trial, the defendants
moved for a directed verdict on the same grounds raised in
their partial summary judgment motion, and the trial court
denied the motion. After the close of the evidence, the
defendants asked the court to apportion damages pursuant to
OCGA § 51-12-33 (b).
jury entered its verdict in favor of the plaintiffs on a
special verdict form, which asked the following: "Was
the negligence of any of Defendant Atlanta Women
Specialists' physician employees a contributing proximate
cause of the injury to Shannon Trabue? If so, place an X in
the blank before each physician employee whose negligence was
a proximate cause of her injury." The physician
employees listed were Drs. Angus and Simonsen. The jury
answered "yes" and placed an X next to both
physicians' names. The jury awarded economic loss damages
of almost $10 million and awarded $18 million compensatory
damages to each plaintiff. The trial court then entered the
judgment on the verdict.
April 7, 2017, the defendant moved for a new trial, alleging,
among other things, that the trial court erred by failing to
require the jury to apportion fault between Dr. Angus and AWS
on behalf of Dr. Simonsen pursuant to OCGA § 51-12-33
(b) and by permitting evidence of the alleged negligence of
Dr. Simonsen because claims against her were not raised in
the complaints and were barred by the statutes of limitation
and repose. The plaintiffs moved to amend the judgment to add
attorney fees, litigation expenses, and pre-judgment interest
under OCGA §§ 9-11-68 and 51-12-14. After
considering the various briefs filed by the parties, the
trial court denied the motion for new trial on all grounds
except its failure to require the jury to apportion fault,
ordering a new trial as to apportionment only. It denied the
plaintiffs' motion to amend the judgment as premature,
given its ruling granting a new trial as to apportionment.
The trial court certified its order on the motion for new
trial for immediate review, this Court granted the
defendants' interlocutory applications, and these appeals
Nos. A18A1552, A18A1553, and A18A1554
AWS's vicarious liability based on Dr. Simonsen.
The defendants contend that the trial court erred by
permitting the jury to consider whether Dr. Simonsen's
negligence was a contributing proximate cause of injury to
Shannon. This enumeration is without merit.
First, the defendants argue that the plaintiffs failed to
timely and properly plead a vicarious liability claim against
AWS for Dr. Simonsen's negligence. We disagree.
initial complaint filed in 2011, the plaintiffs described in
detail the care provided by Shannon's doctors, including
Dr. Simonsen. In Count 1, titled "Claim for Vicarious
Liability as to Defendant AWS," the plaintiffs state:
37.At all times applicable to this [c]omplaint, . . . Rebecca
Simonsen, M.D. [was] the actual, apparent, or ostensible
agent or employee of . . . AWS, acting within the scope
of [her] agency or employment, in pursuit of . . . AWS's
business so that [her] wrongful acts and omissions are
imputed to . . . AWS[, ] and . . . AWS is subject to
liability for injuries and harm proximately caused by [her]
wrongful acts or omissions.
38.Defendant AWS and Dr. . . . Simonsen are hereby put on
notice, by copy of this complaint, that in the event [any of
the defendants] alleges that the actions of . . . Dr.
Simonsen, or any other person acting within the scope of
his/her agency or employment with . . . AWS, proximately or
legally caused or contributed to the injuries suffered by
[Shannon], [the plaintiffs] reserve the right to add said
doctor as a defendant herein.
expert affidavit attached to the original complaint did not
include any opinion regarding Dr. Simonsen's care of
Shannon. The 2015 renewal complaint set forth the same
factual and legal assertions as to Dr. Simonsen, and the
expert affidavit filed therewith incorporated by reference
the opinions he gave in his deposition in the original
action, which opinions included standard of care criticisms
of Dr. Simonsen.
their outline of the case in the consolidated pretrial order,
the plaintiffs stated that Dr. Simonsen's negligence
caused Shannon's injuries, listing 41 specific
allegations of negligence. They also indicated that whether
Dr. Simonsen was negligent and whether her negligence was a
proximate cause of Shannon's injuries were issues for
determination by the jury. The plaintiffs then, with the
permission of the trial court, amended the ...