STATE COURT of DEKALB COUNTY

STATE of GEORGIA

John Como,

                        Plaintiff

— versus —

The Emory Clinic, Inc.

Emory University

Sameh A. Labib, MD

Rohan A. Bhimani, MD

John/Jane Doe 1-10,

                        Defendants

Civil Action

File No. __________

Hon. __________

COMPLAINT

INTRODUCTION

Nature of the Case[1]

1.              This case arises from “ordinary” negligence and professional malpractice that led to the delayed diagnosis and treatment of a bone-destroying lesion in John Como’s left foot.

2.              The first failure to diagnose the lesion occurred on November 8, 2022, by Dr. Sameh Labib.

3.              Dr. Rohan Bhimani’s first failure to diagnose the lesion occurred about five months later, on April 18, 2023, when he read and reported on the November 8, 2022, X-ray.

4.              Administrative negligence by The Emory Clinic, Inc. and Emory University (collectively, “Emory”) contributed to the professional malpractice by Dr. Labib and Dr. Bhimani.

5.              Pursuant to OCGA 9-11-9.1, Plaintiffs attach the Affidavit of Mark J. Conklin, MD as Exhibit 9.

Prelude

6.              Nearly 25 years ago, the National Institute of Medicine published To Err is Human: Building a Safer Health System. The Institute wrote, “More people die in a given year as a result of medical errors than from motor vehicle accidents (43,458), breast cancer (42,297), or AIDS (16,516). The Institute wrote that, “Chief executive officers and boards of trustees must make a serious and ongoing commitment to creating safe systems of care.”[2]

7.              Healthcare clinics must manage staffing and patient load to make sure healthcare providers have the time to do their jobs right.

8.              A bone-destroying lesion in the ankle, if not treated timely, can cause permanent loss of function in that foot and ankle.

9.              When a foot & ankle surgeon orders an X-ray for a patient at risk of serious bone loss in the ankle, the surgeon must review the X-ray carefully, with attention to the whole foot & ankle.

10.           In this case, a surgeon had a patient known to be at risk of significant bone loss in the ankle. The surgeon ordered X-rays. The X-rays showed significant bone loss, but the surgeon missed it. In fact, two surgeons missed the bone loss on five separate occasions. This led to a delay of more than a year and a half in treating the problem. In that time the problem got worse, with serious consequences for the patient.

DEFENDANTS, JURISDICTION & VENUE[3]

Defendant The Emory Clinic, Inc. (TEC)

11.           TEC may be served through its Registered Agent, Amy Adelman at Emory University, 201 Dowman Drive, 312 Administration Building, Atlanta, GA, 30322.

12.           TEC has been properly and timely served with this Complaint and a Summons.

13.           TEC gives its principal office address as 1365 Clifton Rd NE, Atlanta, GA, 30322-1013 in DeKalb County.

14.           TEC is subject to the personal jurisdiction of this Court.

15.           TEC is subject to the subject-matter jurisdiction of this Court in this case.

16.           Pursuant to OCGA 14-3-510(b)(1), TEC is directly subject to venue in this county because TEC maintains its registered office and agent in this county.

17.           TEC has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

18.           TEC was the employer or other principal of Dr. Labib and/or Dr. Bhimani in November 2022 through June 2024.

Defendant Emory University (EU)

19.           EU may be served through its Registered Agent, Amy Adelman at 201 Dowman Drive, 101 Administration Building, Atlanta, GA, 30322.

20.           EU has been properly and timely served with this Complaint and a Summons.

21.           EU gives its principal office address as 201 Dowman Dr NE, 101 Administration Building, Atlanta, GA, 30322-1018 in DeKalb County.

22.           EU is subject to the personal jurisdiction of this Court.

23.           EU is subject to the subject-matter jurisdiction of this Court in this case.

24.           Pursuant to OCGA 14-3-510(b)(1), EU is directly subject to venue in this county because EU maintains its registered office and agent in this county.

25.           EU has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

26.           EU was the employer or other principal of Dr. Labib and/or Dr. Bhimani in November 2022 through June 2024.[4]

Defendant Sameh A. Labib, MD

27.           Sameh A. Labib, MD has been properly and timely served with this Complaint and a Summons.

28.           Dr. Labib is subject to the personal jurisdiction of this Court.

29.           Dr. Labib is subject to the subject-matter jurisdiction of this Court in this case.

30.           Dr. Labib is subject to venue in this county.

31.           Dr. Labib has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

Defendant Rohan A. Bhimani, MD

32.           Rohan A. Bhimani, MD has been properly and timely served with this Complaint and a Summons.

33.           Dr. Bhimani is subject to the personal jurisdiction of this Court.

34.           Dr. Bhimani is subject to the subject-matter jurisdiction of this Court in this case.

35.           Dr. Bhimani is subject to venue in this county.

36.           Dr. Bhimani has no defense to this lawsuit based on undue delay in suing — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.

FACTS[5]

Medical Error, Patient Safety, and Healthcare Management/Administration[6]

Overview

37.           The healthcare system is complex. Even nurses and physicians working inside a facility may have limited knowledge of how the facility is administered.

38.           The National Institute of Medicine wrote nearly 25 years ago:

Although almost all accidents result from human error, it is now recognized that these errors are usually induced by faulty systems that “set people up” to fail. Correction of these systems failures is the key to safe performance of individuals. Systems design — how an organization works, its processes and procedures — is an institutional responsibility. Only the institution can redesign its systems for safety; the great majority of effort in improving safety should focus on safe systems, and the health care organization itself should be held responsible for safety.[7]

39.           That passage expresses the consensus in the healthcare community.[8]

The Healthcare Business

40.           The healthcare industry is one of the largest industries in the United States — accounting for $4.3 trillion or nearly 20% of the economy in 2021.

41.           Non-profit as well as for-profit corporations provide healthcare services in exchange for money.

42.           Non-profit as well as for-profit healthcare corporations pay their officers and employees. Some CEOs of non-profit healthcare corporations make millions of dollars yearly.

43.           Healthcare corporations — non-profit as well as for-profit — typically market their services to the public.

44.           Healthcare corporations typically invite the public to come to the corporations’ facilities for services that could be provided at other facilities.

45.           Healthcare corporations typically compete both for patients and for affiliations with physicians and other healthcare providers.

46.           Healthcare corporations often compete by advertising the quality and safety of their services.

47.           For their part, individual healthcare providers generally are paid well compared to other US workers. For example, physicians consistently rank among the highest-paid professionals in the United States, and nurses generally earn above-average salaries compared to other workers with similar education levels.

Scale of Harm from Medical Error

48.           Estimates vary widely, but even at the low end, conservative estimates indicate that each year in the United States, medical error causes tens of thousands of deaths, and many more serious but non-lethal injuries.[9]

49.           A 2022 study by the US Department of Health and Human Services suggests that annually more than 1.7 million hospital patients in the United States suffer serious harm (including both lethal and non-lethal harm) from medical error.[10]

50.           By comparison, in the year 2022, commercial airline crashes worldwide accounted for approximately 19 deaths.[11] 

Flawed Systems as a Cause of Medical Error

51.           The causes of medical error have been studied extensively, and there is a large literature on medical error and patient safety.

52.           Medical errors usually arise from a combination of two general factors: (a) systemic problems that create unreasonable potential for error, and (b) failings by individual clinicians within that system.

53.           The consensus view today is that human error is inevitable and therefore we need to create patient safety systems that prevent inevitable human errors from reaching a patient and causing harm.

54.           According to Matthew Schreiber, M.D., vice president of safety for Piedmont Healthcare, “Errors happen because imperfect humans interact with imperfect processes,” Dr. Schreiber says. “[T]he greatest opportunity is in engineering processes which minimize the chance for error.”[12]

55.           Patient Safety looks now to systemic issues as the primary cause of harm to patients, because safety barriers can be created to prevent inevitable human errors from reaching the patient.

The Importance of Managers/Administrators

56.           The complexity of healthcare and the danger of inadequate processes and organizational cultures creates a need for good management of healthcare facilities.

57.           Physicians and nurses treating patients typically are not able to prevent or fix problems with the systems and organizational culture in a healthcare organization. In many hospitals, for example, physicians working in the hospital are not even employed by the hospital corporation but simply have “privileges” to work at the hospital.

58.           Of necessity, the clinicians providing direct patient care rely on healthcare managers/administrators to prevent or fix problems with the systems and organizational culture in a healthcare organization.

59.           Managing a healthcare organization is not the same as practicing medicine or nursing. Management involves different roles and responsibilities, and it requires different knowledge and skills.

60.           Many healthcare managers lack the skills to provide direct patient care, and many healthcare professionals lack the skills to serve as managers/administrators. Administration and patient care are distinct, complementary functions. Both are critical to safe healthcare. Negligence in either function endangers patients.

The Patient-Safety Work of Managers/Administrators

61.           Many healthcare managers/administrators are not licensed healthcare professionals.

62.           Healthcare managers who are not licensed healthcare professionals do not provide patient care. Instead, they manage. They manage the organization’s systems, processes, and culture. They make sure tasks get done. They may not perform the tasks personally — they may not be qualified to do so — but they make sure someone qualified does perform the task.

63.           From the perspective of a healthcare professional performing work at the direction of a manager, the manager’s job may look easy, even trivial. Regardless, the manager’s work is critical. In a large, complex organization, if someone doesn’t manage a project, the project is apt to go undone.

64.           Healthcare corporations and their managers play a critical role in protecting patients from medical error.

65.           Healthcare corporations and their managers must work diligently to protect patients from medical error.

66.           Protecting patients from medical error must be a top priority of any healthcare corporation — starting at the top, with the Board and the Chief Executive Officer.

67.           A primary job of non-clinician administrators is to support clinicians by providing systems, resources, and training that facilitate proper medical care and actively prevent medical error — to set clinicians and patients up for success rather than failure.

68.           Healthcare corporations must create an administrative structure dedicated to patient safety.

69.           The leaders of healthcare corporations must manage processes to identify what needs to be done for patient safety, and to make sure it gets done.

70.           Healthcare corporations must create and maintain systems and processes that guard against medical error.

71.           Administrators cannot write medical or nursing policies, but administrators are responsible for making sure procedures are in place to identify what policies or protocols are needed and to oversee the process for creating them.

72.           Administrators are responsible for making sure policies and protocols are communicated effectively to healthcare system staff.

73.           Administrators are responsible for making sure training needs are identified and that the necessary training is given.

74.           Healthcare corporations (through administrators) must make sure they are actually implementing practices that protect patients — not just papering the file.

The Danger of Administrative Negligence

75.           No corporation is compelled to get into the healthcare business, to offer healthcare services to the public, or to advertise and market those services and invite patients to the facility. But for a corporation to take those actions and yet fail to diligently manage patient safety processes creates unnecessary danger. It increases the danger to patients and makes it inevitable that some patients will suffer harm.

76.           Similarly, no individual is compelled to take a job in healthcare management or to participate in the operation and marketing of a facility’s services. But for an individual to participate in managing a hospital and yet neglect his or her responsibilities for the patient-safety processes of the facility increases the danger to patients and makes it inevitable that some patients will suffer harm.

77.           In their duties concerning patient safety, negligence by healthcare corporations and their administrators promotes medical error and contributes to patient harm.

78.           Nonetheless, some institutions persist in attributing medical error solely to clinicians and refuse to acknowledge institutional or management responsibility. This mentality is dangerous: It perpetuates system-level problems that promote medical error and hurt patients.

79.           But as the National Institute of Medicine writes, “The problem is not bad people; the problem is that the system needs to be made safer.”[13]

80.           It would be dangerous to exempt healthcare corporations and managers from accountability, because that would remove an important incentive for them to work diligently to protect patients.

81.           Indeed, the National Institute of Medicine explicitly encourages focusing on the liability of institutions:

“A comprehensive approach to improving patient safety is needed. … The combined goal of the [Institute’s] recommendations is for the external environment to create sufficient pressure to make errors costly to health care organizations and providers, so they are compelled to take action to improve safety.”[14]

Medical Professionalism

Responsibility for Medical Errors

82.           In providing healthcare, bad outcomes can happen even if the care is perfect.

83.           However, there are standards that apply to healthcare, and sometimes providers fail to live up to those standards.

84.           We can’t criticize anyone based only on hindsight: We have to consider what they knew or should have known at the time.

85.           Even good people and good healthcare providers can be and sometimes are negligent.

86.           Healthcare ethics require that when medical negligence happens, the providers responsible for it should own up to it.

87.           Owning up to negligence is important because it helps to identify mistakes so they don’t happen again.

88.           When medical negligence happens, the providers responsible for it should disclose it to the patient or family.

89.           When medical negligence may have happened and caused serious harm, the healthcare facility should investigate.

Vulnerability, Trust, Caring, & Diligence

90.           When a sick or injured patient comes to healthcare providers, there is — or at least should be — a trust between the patient and the providers.

91.           The patient puts their health and safety in the hands of the healthcare providers.

92.           The healthcare providers make a commitment to take good care of the patient.

93.           The healthcare providers make a commitment to do their jobs properly.

94.           Doing the job properly starts with caring about the patient.

95.           A healthcare provider’s job can be hard, so it can be tempting to cut corners or take shortcuts in patient care.

96.           But if a healthcare provider takes shortcuts often enough, it’s just a matter of time before someone gets hurt.

Safety Over Danger

97.           Healthcare providers must not unnecessarily expose a patient to danger.

98.           When a patient already faces danger, healthcare providers must not leave the patient exposed to it unnecessarily.

99.           Healthcare providers must err on the side of greater caution, diligence, and safety for the patient.

100.        Healthcare providers must never err on the side of greater danger for the patient.

All Reasonably Available Measures, Done Timely

101.        If a patient is in danger of a potentially serious condition, healthcare providers must take all reasonably available steps to prevent it.

102.        If a potentially serious condition has already begun, healthcare providers must take all reasonably available steps to prevent further harm.

103.        Healthcare providers must make all reasonable efforts to act in a timely fashion.

104.        If a patient faces a potentially serious condition that is time-sensitive, healthcare providers must do all they reasonably can to address it promptly.

Teamwork

105.        In most healthcare settings, there’s a team of people responsible for caring for a patient.

106.        Each member of the healthcare team shares responsibility for the patient.

107.        For each member of the team, a crucial part of the job is to communicate with other team members.

108.        It is essential to make sure important information gets to the people who can do something about it.

Bone-Destroying Lesions in the Talus[15]

The Talus

109.        The talus bone is a small bone in your ankle. The talus is toward the back of your foot. It’s the point where the two bones in your lower leg — your tibia and fibula — meet your foot.

110.        The talus is the second biggest bone in the back of your foot. Only the calcaneus (heel) bone is bigger.

111.        The talus meets your tibia (shin bone) and fibula (calf bone) to form your ankle joint.

112.        Your talus has several important jobs, including: supporting the weight of your leg, moving your foot up and down, maintaining your balance by moving the back of your foot side-to-side, and stabilizing the arch of your foot.

Bone Loss in the Talus

113.        When an X-ray shows significant bone loss in the talus under an implant, it raises concern for multiple conditions.

114.        Osteolysis is a common cause of bone loss around implants. It occurs due to the body’s reaction to prosthetic materials, leading to bone resorption. Osteolysis can be asymptomatic initially but lead to implant loosening and failure.

115.        Avascular necrosis is a condition characterized by the death of bone tissue due to a lack of blood supply. Avascular necrosis of the talus can lead to bone collapse and cavity formation.

116.        A cystic lesion in the talus would be a fluid-filled cavity within the bone. Cystic lesions can develop due to osteochondral lesions or other degenerative processes. They are often associated with trauma or chronic stress on the bone.

117.        A deep infection around an implant can cause bone destruction and cavity formation.

118.        Osteolysis and cystic lesions can coexist in several ways:

a.     Prosthetic Complications: Around a prosthetic implant, osteolysis can occur due to wear debris causing inflammation and bone resorption. Simultaneously, cystic lesions may form as a result of mechanical stress or altered joint biomechanics, leading to fluid accumulation in weakened areas of the bone.

b.     Trauma and Degenerative Changes: An initial injury or degenerative process might lead to both osteolysis and cyst formation. For example, an osteochondral lesion could progress to a cystic cavity while also experiencing osteolytic changes due to ongoing mechanical stress or inflammation.

c.     Infections: In some cases, infections can lead to both osteolytic activity as the body breaks down infected bone tissue and the formation of cystic lesions as part of an inflammatory response.

Potential Danger of a Cavity in the Talus

119.        A large cavity in the talus underneath a prosthetic implant can pose significant dangers to a patient, primarily due to the structural and functional roles of the talus in the ankle joint.

120.        The potential dangers include:

a.     Structural Weakness and Fractures: A large cavity can significantly weaken the talus, increasing the risk of pathologic fractures. This is particularly concerning because the talus plays a crucial role in weight-bearing and movement.

b.     Implant Loosening: Osteolysis, which involves bone resorption, can lead to loosening of the implant. This occurs because the bone that supports the implant deteriorates, compromising its stability.

c.     Joint Dysfunction: The integrity of the ankle joint can be compromised, leading to pain, reduced range of motion, and potentially arthritis due to altered biomechanics and increased stress on surrounding cartilage.

d.     Infection Risk: If the cavity is associated with an infection, there is a risk of osteomyelitis (bone infection), which can further complicate treatment and recovery.

121.        The presence of a large cavity in the talus is serious due to its potential to cause:

a.     Chronic Pain and Disability: Persistent pain and impaired mobility can significantly affect quality of life.

b.     Progressive Joint Damage: Ongoing bone loss or cystic changes can lead to further joint damage and degeneration.

c.     Surgical Complications: If surgical intervention is required, it may involve complex procedures such as bone grafting or revision surgery, which carry risks like infection or further bone loss.

122.        Prompt medical evaluation of a cavity in the talus is essential to determine the underlying cause of the cavity — whether it is due to osteolysis, avascular necrosis, or another condition — and to plan appropriate treatment.

123.        Depending on the cause, interventions may need to be swift to prevent further deterioration. For example:

a.     If osteolysis is identified early, measures can be taken to manage inflammation and prevent further bone loss.

b.     In cases of infection, immediate treatment with antibiotics or surgical debridement might be necessary.

c.     If avascular necrosis is suspected, procedures to restore blood supply or replace damaged bone may be considered.

124.        Overall, addressing a large cavity in the talus under an implant is crucial for maintaining joint function and preventing severe complications. Early diagnosis and intervention are key to managing this condition effectively.

Failure to Diagnose John Como’s Bone-Destroying Lesion[16]

Ankle-Replacement Surgery and Exactech Alert Letter

125.        In 2018, John Como underwent a left total ankle replacement. Dr. Labib implanted a Vantage Exactech device in John’s ankle. (EHA 393-95.)

126.        On April 7, 2022, Exactech issued an “Urgent Medical Device Correction” letter regarding, among other things, the liner component for an Exactech Total Ankle Replacement System. (JCA 96.)

127.        The Exactech letter said, among other things, “Exactech recommends that surgeons closely monitor the affected knee and ankle patients for potential wear, osteolysis, and associated failure modes, regardless of polyethylene shelf-life and regardless of the time period that has elapsed since index arthroplasty.” (JCA 98.)

128.        On April 18, 2022, Emory Clinic and Emory Orthopaedics & Spine Center sent a letter, signed by Dr. Labib, to John Como regarding the Exactech device correction notice. (JCA 49.)

129.        The Emory letter said “Exactech, Inc. has recently implemented a recall of one component of this ankle replacement device….” (JCA 49.)

130.        The Emory letter to John did not specifically mention the risk of osteolysis.

November 8, 2022: Failure to Diagnose & Follow-Up

131.        On November 8, 2022, John saw Dr. Labib. (EHA 214-21.)

132.        Dr. Labib ordered an X-ray of John’s left foot and ankle, which was performed and read by Dr. Labib the same morning of the office visit, 11/8/2022. The X-ray showed as follows:

133.        The X-ray showed a cystic lesion below the implant on the talus. The lesion is indicated in the image below.

134.        In his office note for the visit, Dr. Labib wrote that John “presents today after receiving a recall letter about his bandage and total ankle replacement polyethylene insert. … He presents today to ensure that his ankle replacement has no acute issues and that he has no further need for intervention on the total ankle placement at this time.” (EHA 215-16.)

135.        Concerning the X-ray, Dr. Labib wrote: “X-ray left ankle–11/8/2022 No acute fracture or dislocation. Status post total ankle replacement with hardware grossly well aligned, no obvious signs of loosening or subsidence. Bone spur formation over the medial malleolus.” (EHA 219.)

136.        Dr. Labib did not mention the lesion below the implant or arrange any follow-up diagnostic or therapeutic care for it.

137.        Dr. Labib did note a bone spur and arranged surgery for that.

November 14, 2022: Failure to Diagnose & Follow-Up

138.        On November 14, 2022, Dr. Labib performed surgery on the bone spur. (EHA 79-83.)

139.        In connection with the bone spur surgery, Dr. Labib took additional X-rays and specifically looked at the talus: “The talus and tibial components were both well fixed.” (EHA 82.)

140.        Again, Dr. Labib failed to note the lesion below the talus implant.

January 19, 2023: Failure to Diagnose & Follow-Up

141.        On January 19, 2023, Dr. Labib saw John again in an office visit, and obtained another X-ray. (EHA 27-32, 39-40.)

142.        Again, the X-ray showed a lesion below the talus implant.

143.        Again, Dr. Labib failed to identify the lesion below the talus implant and failed to arrange diagnostic or therapeutic follow-up for that lesion.

144.        Concerning the X-rays, Dr. Labib wrote: “Findings: Prosthesis in good position, medial clear space debrided, good alignment, postop normal.” (EHA 31.)

145.        Dr. Labib wrote, “Patient is doing well following ankle gutter debridement. He feels that he already feels improvement from his prior condition. At this point, we will allow him to continue to increase his activity as tolerated and advised him against high impact activities or reinjury. He may continue return to activities such as golf and may follow-up with us as needed at this point.” (EHA 32.)

April 18, 2023: Failure to Diagnose & Follow-Up

146.        On 4/18/2023, Dr. Rohan A. Bhimani reviewed the 11/8/2022 X-ray and provided this report: “X-ray left ankle-11/8/2022 No acute fracture or dislocation. Status post total ankle replacement with hardware grossly well aligned, no obvious signs of loosening or subsidence. Bone spur formation over the medial malleolus.” (EHA 228.)

147.        Dr. Bhimani did not mention the lesion below the implant and did not follow up on it with Dr. Labib.

May 2, 2023: Failure to Diagnose & Follow-Up

148.        On 5/2/2023, Dr. Rohan A. Bhimani reviewed the 1/19/2023 X-ray and provided this report: “Findings: Prosthesis in good position, medial clear space debrided, good alignment, postop normal.” (EHA 39.)

149.        Dr. Bhimani did not mention the lesion below the implant and did not follow up on it with Dr. Labib.

June 13, 2024: Diagnosis & Follow-Up

150.        About a year later, in May 2024, John contacted Dr. Labib’s office for a follow-up visit, because he was having pain in his foot.

151.        Dr. Labib ordered an X-ray, which was performed on 5/13/2024. (EHA 19.)

152.        On June 13, 2024, Dr. Labib saw John for an office visit.

153.        This time — more than a year and a half after the 11/8/2022 office visit — Dr. Labib identified the lesion below the talus implant. (EHA 7.)

154.        Dr. Labib wrote, “Patient is here to discuss the results of 5/13/2024 left ankle x-ray. This this x-ray disc demonstrated a large cystic lesion in the left talus below his current implant.” (EHA 7.) “Large cystic lesion in the left talus comprising greater than 50% of the talar body.” (EHA 11.)

155.        Dr. Labib recommended a follow-up CT scan and discussed various treatment options with John, including “1, he can continue to manage his pain symptoms and refrain from high-impact activities. 2, he could pursue a percutaneous structural injection into the cyst. 3, open surgical intervention with revision arthroplasty and bone grafting of the cyst may be an option.” (EHA 11.)

Follow-Up with Dr. Fred Finney

156.        John lost confidence in Dr. Labib and saw a different orthopedic surgeon, Dr. Fred Finney of Peachtree Orthopedics.

157.        On June 24, 2024, 11 days after the June 13 visit with Dr. Labib, Dr. Finney saw John in an office visit. (POA 2.)

158.        Dr. Finney also recommended a CT scan and discussed various treatment options, including.

159.        Dr. Finney wrote, “Based on the CT scan results, consider a revision surgery which may involve bone grafting and replacement of the ankle components. If the cyst is large, a staged procedure may be necessary, starting with bone grafting followed by replacement surgery at a later date. Discuss the possibility of a fusion procedure if the revision surgery is not successful or if the patient decides against another replacement procedure.” (POA 2.)

160.        On July 9, 2024, the CT scan was performed.

161.        On July 15, 2024, Dr. Finney saw John to discuss the CT scan. (POA 2.)

162.        Dr. Finney wrote that “The cystic lesion was smaller in 2022, approximately 1.5 cm, and has approximately doubled in size to about 3.5 cm in 2024.” (POA 2.)

163.        Dr. Finney wrote that, “Given that he received an Exactech ankle replacement that has been recalled, the likely cause of the cystic lesion and loosening is related to polyethylene wear.” (POA 2.)

164.        Dr. Finney discussed various treatment options as well as an intention to discuss John’s case with colleagues to develop a plan. (POA 2-3.)

Follow-Up with Dr. James Ficke

165.        Because of the possibility of major surgery causing long-term harm (e.g., an ankle fusion), John sought a second opinion from Dr. James Ficke of Johns Hopkins.

166.        On August 5, 2024, Dr. Ficke saw John at a Johns Hopkins clinic in Baltimore. (JHA 18.)

167.        On September 11, 2024, Dr. Ficke performed a biopsy of the cystic lesion to rule out any underlying infection. (JHA 46.)

168.        On September 23, 2024, Dr. Ficke saw John in the Baltimore clinic, to discuss a plan for treatment. (JHA 136-37.)

169.        On October 15, 2024, Dr. Ficke performed surgery on John: “Procedure(s): Arthroplasty, Left Ankle liner exchange, left talus bone grafting Left femur reamer, irrigator and aspirator Left.” (JHA 187-91.)

170.        As of the date of this Complaint, John continues to recover from that surgery.

The Damage Done

171.        As of the date of this Complaint, we don’t fully know what long-term harm John will suffer because of the delayed diagnosis and treatment of the lesion beneath the talus implant. At minimum, however, the delay caused a bigger surgery with longer recovery time, as well as substantial pain and mental distress.

The Defendants’ Response

172.        After Dr. Labib identified the talus lesion on June 13, 2024 — more than a year and a half after the November 8, 2022, office visit — neither Dr. Labib nor anyone else from Emory acknowledged to John that there had been any error in the failure to diagnose the lesion in November 2022, January 2023, April 2023, or May 2023.

173.        Neither Dr. Labib nor anyone else from Emory explained to John how or why the failures to diagnose occurred.

174.        Neither Dr. Labib nor anyone else from Emory told John what if anything Emory would do to reduce the chance of similar errors happening to other patients.

CAUSES OF ACTION[17]

Professional Malpractice

Count 1: Failure to Diagnose on November 8, 2022 (Dr. Labib)

Duty

175.        The standard of care required Dr. Labib to review the November 8, 2022, X-rays carefully, in their entirety.

176.        Dr. Labib had seen the April 7, 2022, alert letter from Exactech to surgeons.

177.        Dr. Labib had seen the April 18, 2022, alert letter to John, which bore Dr. Labib’s signature.

178.        Because John was following up on the Exactech alert letters, it was all the more important for Dr. Labib to look carefully for signs of problems around the talus implant, and the standard of care required him to do so.

179.        The standard of care required Dr. Labib to recognize the lesion beneath the talus implant and to arrange diagnostic and/or therapeutic follow-up care.

180.        For a trained orthopedic surgeon, even without having seen the Exactech alert letters, the lesion beneath the implant is easily visible and should not be missed.

181.        With the benefit of either or both April 2022 alert letters, and with a patient in the office specifically asking to follow up on the alert letters, it is all the more difficult for an orthopedic surgeon to miss the lesion.

Breach

182.        Dr. Labib did not review the November 8, 2022, X-rays carefully, in their entirety.

183.        In reviewing the November 8, 2022, X-rays, Dr. Labib did not look carefully for signs of problems around the talus implant.

184.        In reviewing the November 8, 2022, X-rays, Dr. Labib did not recognize the lesion beneath the talus implant.

185.        After reviewing the November 8, 2022, X-rays, Dr. Labib did not arrange diagnostic and/or therapeutic follow-up care.

Causation & Damages

186.        The failure delayed the diagnosis and treatment of the lesion below the implant.

187.        The extent of long-term harm to John is not clear yet. But at minimum the delay caused the eventual surgery to be larger than it otherwise would be, more painful, and with a longer recovery time. Additionally, the delay caused physical pain and mental distress.

Count 2: Failure to Diagnose on November 14, 2022 (Dr. Labib)

Duty

188.        Dr. Labib obtained X-ray imaging, including intraoperative fluoroscopy, in connection with the November 14, 2022, bone spur surgery he performed on John.

189.        The standard of care required Dr. Labib to review the X-ray imaging carefully, with attention to the entire foot and ankle — not just the area of the bone spur — at least once on the day of the surgery.

190.        The standard of care required Dr. Labib to recognize the lesion beneath the talus implant and to arrange diagnostic and/or therapeutic follow-up care.

191.        The standard of care required Dr. Labib to review John’s medical history generally, and to bear in mind the Exactech implant and alert letters.

192.        Dr. Labib’s knowledge of the Exactech alert letters made it all the more important for him to review the X-rays with attention to the entire foot and ankle, and in particular the area around the Exactech implant.

Breach

193.        On the day of the surgery, Dr. Labib did not review the bone-spur surgery X-rays carefully with attention to the entire foot and ankle (as opposed to just the area around the bone spur).

194.        In reviewing the bone-spur surgery X-rays, Dr. Labib did not recognize the lesion beneath the talus implant.

195.        In connection with reviewing the bone-spur surgery X-rays, and did not arrange diagnostic and/or therapeutic follow-up care.

Causation & Damages

196.        The failure delayed the diagnosis and treatment of the lesion below the implant.

197.        The extent of long-term harm to John is not clear yet. But at minimum the delay caused the eventual surgery to be larger than it otherwise would be, more painful, and with a longer recovery time. Additionally, the delay caused physical pain and mental distress.

Count 3: Failure to Diagnose on January 19, 2023 (Dr. Labib)

Duty

198.        On January 19, 2023, the standard of care required Dr. Labib to review the X-rays taken that day carefully, with attention to the entire foot and ankle and not just the area of the bone spur.

199.        The standard of care required Dr. Labib to review John’s medical history generally, and to bear in mind the Exactech implant and alert letters.

200.        Dr. Labib’s knowledge of the Exactech alert letters made it all the more important for him to review the X-rays with attention to the entire foot and ankle, and in particular the area around the Exactech implant.

201.        The standard of care required Dr. Labib to recognize the lesion beneath the talus implant and to arrange diagnostic and/or therapeutic follow-up care.

Breach

202.        On January 19, 2023, Dr. Labib did not review the X-rays taken that day carefully with attention to the entire foot and ankle.

203.        On January 19, 2023, Dr. Labib did not recognize the lesion beneath the talus implant and did not arrange diagnostic and/or therapeutic follow-up care.

Causation & Damages

204.        The failure delayed the diagnosis and treatment of the lesion below the implant.

205.        The extent of long-term harm to John is not clear yet. But at minimum the delay caused the eventual surgery to be larger than it otherwise would be, more painful, and with a longer recovery time. Additionally, the delay caused physical pain and mental distress.

Count 4: Failure to Diagnose on April 18, 2023 (Dr. Bhimani)

Duty

206.        On April 18, 2023, when Dr. Bhimani read and reported on the November 8, 2022, X-rays, the standard of care required him to review them carefully.

207.        The standard of care required Dr. Bhimani to recognize the lesion beneath the talus implant.

208.         The standard of care required Dr. Bhimani to follow up on that lesion with Dr. Labib.

Breach

209.        Dr. Bhimani did not review the X-rays taken carefully.

210.        Dr. Bhimani did not recognize the lesion beneath the talus implant and did not follow up on it with Dr. Labib (or anyone else).

Causation & Damages

211.        The failure delayed the diagnosis and treatment of the lesion below the implant.

212.        The extent of long-term harm to John is not clear yet. But at minimum the delay caused the eventual surgery to be larger than it otherwise would be, more painful, and with a longer recovery time. Additionally, the delay caused physical pain and mental distress.

Count 5: Failure to Diagnose on May 2, 2023 (Dr. Bhimani)

Duty

213.        On May 2, 2023, when Dr. Bhimani read and reported on the January 19, 2023, X-rays, the standard of care required him to review them carefully.

214.        The standard of care required Dr. Bhimani to recognize the lesion beneath the talus implant.

215.         The standard of care required Dr. Bhimani to follow up on that lesion with Dr. Labib.

Breach

216.        Dr. Bhimani did not review the X-rays taken carefully.

217.        Dr. Bhimani did not recognize the lesion beneath the talus implant and did not follow up on it with Dr. Labib (or anyone else).

Causation & Damages

218.        The failure delayed the diagnosis and treatment of the lesion below the implant.

219.        The extent of long-term harm to John is not clear yet. But at minimum the delay caused the eventual surgery to be larger than it otherwise would be, more painful, and with a longer recovery time. Additionally, the delay caused physical pain and mental distress.

Vicarious Liability

220.        In treating John Como, Dr. Labib acted at all times within the course and scope of his employment with The Emory Clinic, Inc.

221.         The Emory Clinic, Inc. is vicariously liable for any professional malpractice by Dr. Labib in treating John.

222.        In reading and reporting on John Como’s X-rays, Dr. Bhimani acted at all times within the course and scope of his employment with Emory University.

223.        Emory University is vicariously liable for any professional malpractice by Dr. Bhimani in reading and reporting on John Como’s X-rays.

“Ordinary” Negligence / Negligent Management or Administration[18]

224.        The Emory Clinic, Inc. (TEC) and Emory University (EU) voluntarily undertook duties to manage or administer healthcare facilities and personnel — including facilities and personnel directly involved in caring for John Como.

225.        TEC and EU knew that medical error is a major problem and requires active management to reduce the likelihood and danger of medical errors.

226.        That the same or similar medical errors occurred on five separate occasions, involving two different surgeons, indicates that the errors are not solely attributed to the individual providers.       

227.        TEC and EU contributed to the errors by negligence in management/administration that set the individual providers up for failure.

228.        Among other things, TEC and EU were negligent in failing to create and maintain a culture of safety. This is shown, for example, by the failure of anyone at Emory to identify and disclose to John Como the medical error he suffered repeatedly at the hands of Emory providers.

229.        Emory’s managerial or administrative failures contributed substantially to the harm to John.

REQUEST FOR RELIEF

230.        Plaintiffs demand judgment in excess of $10,000.[19]

231.        Plaintiffs demand general damages including but not limited to pain, suffering, and lost enjoyment of life.

232.        Plaintiffs demand special damages including:

a.     Lost income

b.     Past medical expenses

c.     Future medical expenses

d.     Past and future expenses for attendant care

e.     Past and future expenses for home and vehicle modifications.

233.        WHEREFORE, Plaintiff demands judgment against the Defendants as stated above, and such other and further relief as the Court deems just and proper.

October 29, 2024

Respectfully submitted,

/s/ Daniel E. Holloway            

Georgia Bar No. 658026

DEH Law

2062 Promise Road, Unit 1305

Rapid City, SD 57701

404-670-6227

dan@dehlegal.com

Attorney for Plaintiff

NOTE TO THE DEFENSE ON ANSWERS TO THE COMPLAINT

Plaintiff does not rely on the averments in this section, and the Defendants need not respond to anything in this section. Experience has taught us, however, that the law governing answers to complaints is not well understood. We recite the following principles in hope of avoiding unnecessary motion practice.

Georgia law requires defendants to respond to the complaint in good faith, after diligent inquiry.

·      OCGA 9-11-8 (which speaks throughout of fairness, good faith, and truth).

·      Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681 (1970) (“While Federal Rule 11 is not verbatim with our CPA § 11, we think the two are identical in purport and intent with respect to honesty and good faith in pleading. … We … wish to emphasize the importance of the rule and of using great care in securing proper information before pleading.”).

Georgia’s Civil Practice Act requires & permits one of three responses to an averment: an admission, a denial, or a claim of ignorance.

·      OCGA 9-11-8.

·      FDIC v. Stovall, No. 2:14-cv-00029-WCO, 2014 US Dist LEXIS 183100 (ND Ga Oct. 2, 2014) (“There are only three appropriate responses to a pleading: an admission, a denial, or a statement that the party lacks knowledge or information sufficient to form a belief about the truth of the allegation.”).

Evasive or equivocal responses are ineffective as denials and therefore count as admissions.

·      OCGA 9-11-8(d) (“Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” But “If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state, and this has the effect of a denial.”);

·      Universal Underwriters v. Albert, 248 Ga. App. 415 (2001) (“It is impossible to discern from this answer whether Albert admitted Universal’s allegations, whether she denied Universal’s allegations, or whether she was without sufficient knowledge to admit or deny the allegations. Because Albert failed to deny Universal’s allegations that she converted the vehicle and that it was damaged while in her possession, the trial court should have accepted them as true….”)

·      Moore’s Federal Practice § 8.07 (“An equivocal or otherwise improper denial will be deemed an admission.”); Wright & Miller, Federal Practice & Procedure, § 1261 (“If an answer is not sufficiently definite in nature to give reasonable notice of the allegations in the complaint sought to be placed in issue, the opponent’s averments may be treated as admitted.”)

·      FDIC v. Stovall, 2014 US Dist LEXIS 183100 (ND Ga Oct. 2, 2014) (“Stating that a document ‘speaks for itself’ is nonsensical and completely contrary to the Federal Rules of Civil Procedure. A response that fails to answer an allegation because the allegation ‘states a legal conclusion’ or because the document ‘speaks for itself’ is impermissible under the plain language of Rule 8(b). … The practical implication of these pseudo-responses is that a party must request much broader discovery because the opposing party did not really admit anything. Not only does this needlessly increase the costs of litigation—something that this court strives to avoid—but the discovery process may devolve into a battle royale of broad requests against worthless responses.”).

When an averment is partially true, the defendant must admit that part, even if the defendant denies or claims ignorance of the rest.

·      OCGA 9-11-8(b) (“Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.”).

Note that responses like “denied as stated” indicate that the allegation is partially true, or true with some qualification. So this type of response is improper.

A claim of ignorance requires lack of information sufficient TO FORM A BELIEF — not merely a lack of first-hand knowledge or a lack of certainty.

·      OCGA 9-11-8(b) (“A party … shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information SUFFICIENT TO FORM A BELIEF as to the truth of an averment, he shall so state, and this has the effect of a denial.”)

·      Consolidated Pecan v. Savannah Bank & Trust, 122 Ga. App. 536 (1970) (“[U]nder the Civil Practice Act, in order to take advantage of lack of information and knowledge, the defendant must allege that he is without knowledge or information sufficient to form a belief as to the truth of an averment. That he may not have sufficient information to permit him to make an express denial or an express admission is no longer the requirement. He must now allege that he lacks knowledge or information sufficient for him to form a belief as to the truth of an averment rather than be absolutely certain thereof.”).

A corporate entity “knows” what its officers, employees, and other agents know.

·      Georgia Commercial Stores v. Forsman, 342 Ga. App. 542 (2017) (“A company is chargeable with the composite knowledge acquired by its officers and agents acting within the scope of their duties.”).

[1] Plaintiffs rely on all averments stated in numbered paragraphs in the main text, but not on statements in footnotes. The Defendants need not respond to footnotes.

The allegations in this complaint are based on personal knowledge to the extent they concern events Plaintiff witnessed. Otherwise, the allegations are based on medical records, literature, other publicly available information, consultation with experts, and inferences therefrom. Plaintiff’s allegations, and the basis of Plaintiff’s claims, may change as Plaintiffs or their counsel learn additional information as discovery proceeds.

[2] Exhibit 5, exhibit page 10.

[3] OCGA 14-2-510 and 14-3-510 provide identical venue provisions for regular business corporations and for nonprofit corporations:

“Each domestic corporation and each foreign corporation authorized to transact business in this state shall be deemed to reside and to be subject to venue as follows:

(1)   In civil proceedings generally, in the county of this state where the corporation maintains its registered office….

(2)   In actions based on contracts, …

(3)   In actions for damages because of torts … in the county where the cause of action originated, if the corporation has an office and transacts business in that county;

(4)   In actions for damages because of torts … in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business.”

(5)   In garnishment proceedings, …

These same venue provisions apply to Professional Corporations, because PCs are organized under the general “Business Corporation” provisions of the Georgia Code. See OCGA § 14-7-3. These venue provisions also apply to Limited Liability Companies, see OCGA § 14-11-1108, and to foreign limited liability partnerships, see OCGA § 14-8-46.

OCGA 9-10-31(b) provides that, “joint tort-feasors … residing in different counties, may be subject to an action as such in the same action in any county in which one or more of the defendants reside.”

[4] Plaintiff is delivering a copy of this complaint to Amy Adelman at 201 Dowman Drive, 101 Administration Building, Atlanta, GA, 30322, as Registered Agent for 46 entities that may have been the employer or other principal of Dr. Labib and/or Dr. Bhimani. Within the period provided by law for commencing the action, each of those entities (1) will have received such notice of the institution of the action that they will not be prejudiced in maintaining their defense on the merits, and (2) will know or should know that, but for a mistake concerning the identity of the proper party, the action would have been brought against them. Amy Adelman is the Registered Agent for 46 potential employers (among others) of Dr. Labib and Dr. Bhimani. Those entities include, among others:

·      Emory Healthcare, Inc.

·      Emory Healthcare Services Management, LLC

·      Emory Ambulatory Surgery Center at Dunwoody, LLC

·      Emory Physicians Group, LLC

·      Emory Medical Group, LLC

·      Emory Specialty Associates, LLC

·      Emory Integrated Health Services, LLC.

[5] This complaint provides more than the general notice required by Georgia law. The law permits but does not require the additional detail. See OCGA 9-11-8(a) (a complaint “shall contain” a short and plain statement — not “shall contain only”).

Because this complaint provides additional detail, Plaintiffs will agree to extend the Defendants’ time to answer the complaint.

The additional detail assists the defendants by providing additional notice of the basis of the claims and making it easier to prepare their defense. The additional detail will streamline the litigation by establishing agreement on as many relevant facts as possible and identifying and narrowing the disputes. This is consistent with the mandate of Section 1 of the CPA (“This chapter shall be construed to secure the just, speedy, and inexpensive determination of every action.”).

Plaintiffs do not, however, waive the protections of Georgia’s notice-pleading standard. See Atlanta Women’s Specialists v. Trabue, 310 Ga. 331 (2020).

[6] Duties depend on facts. Here, important background facts are not widely understood, so we provide a short primer on healthcare administration and its relation to medical error and patient safety.

[7] Exhibit 5, exhibit page 69. Unless otherwise noted, all emphasis in quotations is added.

[8] Plaintiffs attach and incorporate into this complaint the following exhibits, which explain the role of healthcare administrators in medical error and patient safety. Plaintiffs stipulate that the Defendants are not required to admit or deny, or otherwise respond to any exhibits to this complaint or any statements in the exhibits. These exhibits are not strictly necessary, but they serve to show that the allegations concerning healthcare administration are not merely the personal speculation of Plaintiffs’ counsel but are grounded in authoritative literature: Exhibit 1: Affidavit of Jonathan Burroughs, MD; Exhibit 2: Excerpt from the Joint Commission Comprehensive Accreditation Manual for Hospitals (effective Jan. 1, 2022), regarding hospital leadership; Exhibit 3: Excerpt from Understanding Patient Safety, 3d Ed. By Robert Wachter and Kiran Gupta; Exhibit 4: Sentinel Event Alert: “The essential role of leadership in developing a safety culture.”; Exhibit 5: National Institute of Medicine, To Err is Human: Building a Safer Health System (excerpts); Exhibit 6: Piedmont Healthcare Inc., “Time out for safety.”; Exhibit 7: Phoebe Putney Health System, “Safety First to Become an HRO.”; Exhibit 8: 2022 HHS report, “Adverse Events in Hospitals: A Quarter of Medicare Patients Experienced Harm in October 2018.”

[9] For estimates of the scale of harm from medical error, see: Donaldson, Molla S., Janet M. Corrigan, and Linda T. Kohn, eds. “To err is human: building a safer health system.” (2000) (44,000 to 98,000 deaths annually); Zhan, Chunliu, and Marlene R. Miller. “Excess length of stay, charges, and mortality attributable to medical injuries during hospitalization.” Jama 290, no. 14 (2003): 1868-1874 available at: https://jamanetwork.com/journals/jama/article-abstract/197442. (32,500 deaths annually from 18 types of error); HealthGrades, “Patient Safety in American Hospitals” (July 2004). Available at: http://www.allianceforpatientsafety.org/HG_Patient_Safety_Study_Final.pdf(87,000 deaths annually); Department of Health and Human Services Office of Inspector General, “Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries” (Nov. 2010). Available at: https://psnet.ahrq.gov/issue/adverse-events-hospitals-national-incidence-among-medicare-beneficiaries. (79,200 deaths annually among Medicare patients); Landrigan, Christopher P., Gareth J. Parry, Catherine B. Bones, Andrew D. Hackbarth, Donald A. Goldmann, and Paul J. Sharek. “Temporal trends in rates of patient harm resulting from medical care.” New England Journal of Medicine 363, no. 22 (2010): 2124-2134. Available at: https://www.nejm.org/doi/full/10.1056/NEJMsa1004404. (203,331 deaths annually; 1.16 million total serious harms); Classen, David C., Roger Resar, Frances Griffin, Frank Federico, Terri Frankel, Nancy Kimmel, John C. Whittington, Allan Frankel, Andrew Seger, and Brent C. James. “‘Global trigger tool’shows that adverse events in hospitals may be ten times greater than previously measured.” Health affairs 30, no. 4 (2011): 581-589. Available at: https://www.healthaffairs.org/doi/abs/10.1377/hlthaff.2011.0190. (342,000 deaths annually); Hogan, Helen, Rebecca Zipfel, Jenny Neuburger, Andrew Hutchings, Ara Darzi, and Nick Black. “Avoidability of hospital deaths and association with hospital-wide mortality ratios: retrospective case record review and regression analysis.” bmj 351 (2015). Available at: https://www.bmj.com/content/351/bmj.h3239.long. (28,800 deaths annually); Makary, Martin A., and Michael Daniel. “Medical error—the third leading cause of death in the US.” Bmj 353 (2016). Available at: https://www.bmj.com/content/353/bmj.i2139/. (251,454 deaths annually); Panagioti, Maria, Kanza Khan, Richard N. Keers, Aseel Abuzour, Denham Phipps, Evangelos Kontopantelis, Peter Bower et al. “Prevalence, severity, and nature of preventable patient harm across medical care settings: systematic review and meta-analysis.” bmj 366 (2019). Available at: https://www.bmj.com/content/366/bmj.l4185.full. (244,800 patients with severe preventable harm causing prolonged, permanent disability or death); Department of Health and Human Services Office of Inspector General, “Adverse Events in Hospitals: A Quarter of Medicare Patients Experienced Harm in October 2018.” Available at: https://oig.hhs.gov/oei/reports/OEI-06-18-00400.asp. (1.75 million patients suffering serious harm — including both lethal and non-lethal harm — from medical error).

[10] https://oig.hhs.gov/oei/reports/OEI-06-18-00400.asp. The HHS study showed that approximately 5% of Medicare patients whose hospital admissions were reviewed suffered serious preventable harm from their medical care. Extrapolated to the 34 million hospital admissions in 2021, this would mean approximately 1.75 million patients annually suffered serious harm, including fatal and non-fatal harm, from medical error.

[11] https://www.iata.org/en/pressroom/2023-releases/2023-03-07-01/ (“IATA member airlines experienced one fatal accident in 2022, with 19 fatalities.”).

[12] Exhibit 6. Also available at https://www.piedmont.org/living-real-change/time-out-for-safety#.

[13] Exhibit 5, exhibit page 27.

[14] Exhibit 5, exhibit pages 12-13.

[15] Images are offered to assist in understanding the averments but are not part of the averments. Plaintiffs do not rely on the images, and the Defendants need not respond to the images.

[16] Along with this Complaint, we intend to serve Bates-stamped copies of medical records. The citations are to those records. If you do not receive the records, please contact Plaintiff’s counsel.

[17] Plaintiffs’ causes of action are based on the averments in the prior sections as well as the additional averments in this and succeeding sections. Discovery may produce new information that changes the basis of Plaintiffs’ claims. The averments below and accompanying footnotes seek to give the Defendants detailed notice of the legal principles on which Plaintiffs’ claims are based. However, the legal bases may change as additional information emerges.

[18] Whereas the case-specific facts concerning professional malpractice are largely available in the medical records, the case-specific facts concerning negligent administration are largely unavailable without discovery. So Plaintiff pleads this claim in less detail.

[19] This language is required by OCGA 9-11-8(2)(B), which also provides that “no further monetary amount shall be stated.”