STATE COURT of RICHMOND COUNTY

STATE of GEORGIA

Clinton Crawford, on his own behalf and as wrongful death plaintiff, and

Estate of Dorothy Crawford, through Bonita Adams, Executor (anticipated),

                        Plaintiffs

— versus —

Piedmont Healthcare, Inc.

Kevin Brown

University Health Services, Inc., doing business as Piedmont Augusta Hospital

James R. Davis

John/Jane Doe 1-10,

                        Defendants

Civil Action

File No. 2024 RCSC 00591

Hon. Robert W. Hunter, III

Jury Trial Demanded

FIRST AMENDED & RESTATED COMPLAINT

INTRODUCTION

1.              Nearly 25 years ago, the National Institute of Medicine published To Err is Human: Building a Safer Health System — a report on the harm from medical error and basic principles of patient safety.

2.              The Institute of Medicine wrote that, “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).[1]

3.              The Institute wrote that:

“Chief executive officers and boards of trustees must make a serious and ongoing commitment to creating safe systems of care. … [A] meaningful safety program should include senior-level leadership, defined program objectives, plans, personnel, and budget, and should be monitored by regular progress reports to the executive committee and board of directors.”[2]

4.              By contrast, in their Answer to the original Complaint in this case, Piedmont Healthcare, Inc. and its CEO, Kevin Brown, denied the following principles:

Healthcare corporations must work diligently to protect patients from medical error.

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.

The leaders of healthcare corporations must oversee processes to decide what needs to be done for patient safety, and to make sure it actually gets done.

5.              Thus, in formal court filings, Piedmont and Brown confirm they have abandoned their responsibility for patient safety.

6.              Piedmont claims they lacked resources: Piedmont Healthcare, Inc. denies that by virtue of its size and sophistication it was well equipped to exercise care in providing management services and supervision to University Health Services, Inc. For its part, UHS denies that by virtue of its size and sophistication it was well equipped to exercise care in managing the Hospital.

7.              Thus, after a routine surgery at Piedmont Augusta Hospital, Dorothy Crawford suffered an unnecessary brain injury and death because of errors that could easily have been prevented, if the Piedmont Defendants had done their jobs.

8.              Through their Answers, Piedmont Healthcare confirms what was evident before: They’re fine with the healthcare Dorothy Crawford received. In their view, Dorothy received the healthcare she — or anyone else in her situation — should expect from Piedmont.

Summary of the Amendment to the Complaint[3]

9.              This First Amended & Restated Complaint supersedes the original Complaint.[4]

10.           This amendment (i) adds a claim against University Health Services, Inc. for professional malpractice (nursing), (ii) adds allegations to address issues raised in the Defendant’s motion to dismiss the original Complaint, (iii) adds allegations to support claims for punitive damages and expenses of litigation against all Defendants, and (iv) restates the complaint.[5]

11.           Pursuant to OCGA 9-11-9.1, Plaintiffs attach the Affidavit of Cynthia Caroselli, RN, PhD as Exhibit 7.

Timeliness of the Professional Malpractice Claim

12.           This amended pleading is timely because a pretrial order has not been entered in this case.[6]

13.           The professional malpractice claim here is asserted within the 5-year period of Georgia’s statute of repose. The nursing malpractice occurred on May 10, 2022, and this claim is asserted in July 2024.[7]

14.           The nursing malpractice claim asserted here relates back to the original complaint because it arises out of the conduct, transaction, or occurrence — the same general fact situation — set forth or attempted to be set forth in the original pleading.[8]

15.           The statute of limitations does not bar the nursing malpractice claim — either as to the claim for wrongful death damages (which is based on death occurring on August 15, 2022) or as to the Estate’s claim[9] or as to Clinton Crawford’s consortium claim (both of which are based on primarily on an injury that occurred on May 10, 2022).[10]

Nature of the Case

16.           This case arises from negligence that led to the death of Dorothy Crawford on August 15, 2022.

17.           This case arises out of negligent administration of the hospital located at 1350 Walton Way, Augusta, Georgia 30901 and marketed as “Piedmont Augusta Hospital” but also known as “University Hospital” (the “Hospital”).

18.           “Ordinary” negligence led to professional malpractice by nurses.

Basis of the Allegations

19.           The professional malpractice claim is based on two sources of information not available when Plaintiffs’ original complaint was filed: (a) UHS’s Answer to the Complaint and (b) the analysis and conclusions of Cynthia Caroselli, PhD.

20.           Generally, the allegations in this complaint are based on personal knowledge only to the extent they concern events that Clinton Crawford or Bonita Adams witnessed. Otherwise, the allegations are based on medical records, publicly available information, consultation with experts, and inferences therefrom.

21.           Plaintiffs’ allegations, and the basis of Plaintiffs’ claims, may change as Plaintiffs or their counsel learn additional information as the discovery process fills in details.

The Case in a Nutshell

22.           If a hospital’s administration chooses to offer a type of surgery, the administration must ensure the staff are trained, instructed, and equipped to properly handle the known post-operative complications that can kill the patient in minutes.

23.           Most known complications cannot kill a patient in minutes. Only a small set of known complications have that combination of severity and speed.

24.           If a hospital cannot or will not make sure its staff are able to properly handle the known complications that can kill a patient in minutes, then the hospital should not offer the surgery on an elective basis.

25.           A post-operative hematoma in the neck is a well-recognized complication of a thyroidectomy.

26.           “Hematoma” is from the Greek. It translates as “blood tumor.” A hematoma forms when there is bleeding inside the body. The blood forms a mass that can put damaging pressure on structures in the body.

27.           A post-thyroidectomy hematoma can expand rapidly, compress the windpipe, suffocate the patient, and cause brain injury and death in minutes.

28.           Whether you breathe through your nose or through your mouth, you always breathe by taking air through your trachea (windpipe) down to your lungs. If your windpipe gets compressed so that air movement is blocked, that’s like being suffocated by a plastic bag over your head.

29.           If you can’t breathe at all, that’s respiratory arrest. If your heart stops pumping, that’s cardiac arrest. Respiratory arrest, if it continues long enough, causes cardiac arrest. If you can’t breathe, your lungs can’t take in fresh oxygen and expel carbon dioxide waste from your cells. Deprived of oxygen and poisoned by carbon dioxide, the heart struggles to pump. If breathing isn’t restored, eventually the heart stops completely.

30.           The time it takes can vary, but cardiac arrest is likely to occur if respiratory arrest continues for 3-5 minutes.

31.           Any hospital offering thyroidectomies (or similarly invasive neck surgeries) must ensure the staff caring for the patient after surgery are trained, equipped, and instructed to respond properly to signs of respiratory distress.

32.           When a patient has severe difficulty breathing in the hours after a thyroidectomy (and no known cause other than a hematoma), the immediate response must be to cut the sutures on the skin at the incision site, because a hematoma is likely compressing the windpipe — before or simultaneously with calling for help (from, e.g., a neck surgeon, an anesthesiologist, or a Code Blue team).

33.           The need to cut the incision-site sutures is all the more obvious if there is any lump or swelling on the neck, but a deep hematoma compressing the windpipe may not be associated with any visible swelling, because it forms well below the skin.

34.           If the sutures on the skin at the incision site are cut, then the blood forming a hematoma can flow out of the body without compressing the windpipe.

35.           Cutting the sutures at the incision site opens a low-pressure avenue of escape for the blood. That prevents the hematoma from creating enough pressure to block off the windpipe.

36.           If the sutures at the incision site are not cut, the hematoma may compress the windpipe — suffocating the patient and causing brain injury or death.

37.           Nurses caring for post-thyroidectomy patients in the hours after the surgery must be trained, instructed, and equipped to recognize when a patient is having severe difficulty breathing, and to cut the sutures on the skin at the incision site.

38.           This simple intervention, cutting the sutures at the incision site, saves the patient’s life and normally takes mere seconds.

39.           The risks of cutting the sutures (e.g., infection) are trivial compared to the risk of not cutting the sutures (e.g., brain injury or death).

40.           Calling a Code Blue and waiting for the Code team to arrive — without cutting the sutures on the skin at the incision site — exposes the patient to greater danger. It may take several minutes for the Code team to arrive. The patient may suffer catastrophic brain injury before the Code team arrives.

41.           A hospital can easily ensure that its staff are trained, instructed, and equipped to handle severe respiratory distress in a post-thyroidectomy patient. The concepts are simple and can be explained in a few minutes. (They are explained in the few paragraphs above.) Training simulations can easily provide experience and confidence in responding properly.

42.           The actions themselves — seeing that a patient can’t breathe and cutting sutures at the incision site — require no technical knowledge or skill. Even a person with no healthcare training can do it.

43.           It is not too much to expect of a hospital that they will prepare their staff to handle post-surgery complications that are (1) well known, (2) potentially catastrophic, and (3) can kill a patient in minutes.

———

44.           Dorothy Crawford underwent a thyroidectomy at Piedmont Augusta Hospital.

45.           Hours after the surgery, Dorothy’s daughter and husband were in the room when Dorothy began showing signs of difficulty breathing. Her daughter, Bonita, ran to get help.

46.           Nurses came to the room and at some point called a Code Blue.

47.           As Dorothy suffocated, the nurses did not cut the sutures on the skin at the incision site.

48.           The Code Team did not arrive immediately.

49.           The first physician to arrive was not a member of the Code Team, but rather the surgeon who had performed the thyroidectomy.

50.           When the surgeon arrived, the sutures still had not been cut. Dorothy was already in cardiac arrest. The staff were giving her chest compressions and “bagging” her — that is, trying to force air into her windpipe with a bag-valve mask.

51.           The surgeon cut the sutures at the incision site and began evacuating the hematoma.

52.           It was too late. Dorothy was already profoundly brain injured.

53.           Dorothy never recovered. She languished in the hospital for about three months before dying.

54.           If the sutures at the incision site had been cut promptly when Bonita called the nurses to come help, Dorothy would have suffered no serious injury.

55.           The catastrophe that befell Dorothy Crawford did not have to happen.

56.           Avoiding this catastrophe required only that Piedmont Augusta Hospital make sure before offering an elective surgery that its staff was trained, instructed, and equipped to handle the well-known complications that could kill the patient within minutes — and that the nurses do what they were trained, instructed, and equipped to do.

57.           Either (a) University Health Services, Inc. (“UHS”) failed to train, instruct, and equip the nurses caring for post-thyroidectomy patients at the Hospital to cut the sutures on the skin at the incision site if the patient showed signs of severe respiratory distress, or (b) UHS did train, instruct, and equip the nurses to do that, and nurses involved in Dorothy Crawford’s care failed to do as trained, instructed, and equipped.

58.           Either way, the nursing care was negligent. The only question is whether the blame lies principally at the feet of UHS and the other Defendants or at the feet of the individual nurses.

59.           In their Answer to the original Complaint in this case, UHS said they did train, instruct, and equip the nurses to cut the sutures on the skin at the incision site, if the patient showed signs of severe respiratory distress.

60.           The original Complaint alleged, “Piedmont Augusta Hospital failed to train, instruct, and equip the nurses caring for post-thyroidectomy patients in how to respond when such patients are having difficulty breathing. … The nurses had not been trained, instructed, or equipped to cut the sutures on the skin at the incision in such circumstances.” UHS denied both allegations.

61.           The only logical meaning of UHS’s response is that the nurses had been trained, instructed, or equipped to cut the sutures on the skin at the incision in such circumstances.

62.           If the corporations and CEOs are telling the truth on that point, the individual nurses would be liable for the negligent nursing care, and UHS and the other Defendants would be liable for failing to maintain the minimum discipline and morale necessary for the nurses do as they were trained, instructed, and equipped to do — even as they saw Dorothy Crawford suffocating.

PARTIES, JURISDICTION & VENUE[11]

Plaintiff Clinton Crawford

63.           Clinton Crawford is the surviving spouse of Dorothy Crawford. Pursuant to OCGA 51-4-2, Mr. Crawford is therefore the proper party to bring a wrongful death claim.

64.           Mr. Crawford is a resident of Richmond County, Georgia.

65.           Mr. Crawford asserts two distinct claims. First, on behalf of all wrongful death beneficiaries, he asserts a wrongful death claim for the full value of the life of Dorothy. Second, on his own behalf, he asserts a claim for his loss of consortium.

66.           Neither of Mr. Crawford’s claims includes medical expenses.

Plaintiff Bonita Adams

67.           Bonita Adams is the daughter of Dorothy Crawford and stepdaughter of Clinton Crawford.

68.           Ms. Adams is in the process of creating the estate of Dorothy Crawford and will be appointed as Executor of the Estate.

69.           Ms. Adams asserts (or will assert upon her appointment) a claim on behalf of the Estate for Dorothy’s pain and suffering before she died, as well as special damages including medical expenses.

70.           The Estate will be formed under Georgia law.

Defendant Piedmont Healthcare, Inc. (PHI)

71.           PHI may be served through its Registered Agent, CSC of Cobb County, Inc. at 192 Anderson Street, N.E., Suite 125, Marietta, GA, 30060.

72.           PHI has been properly and timely served with this Complaint.

73.           PHI’s principal office address is 1800 Howell Mill Road, Suite 850, Atlanta, GA, 30318, in Fulton County.

74.           PHI is subject to the personal jurisdiction of this Court.

75.           PHI is subject to the subject-matter jurisdiction of this Court in this case.

76.           Pursuant to OCGA 9-10-31, PHI is subject to venue in this county because one of its co-defendants (UHS) resides in this county.

77.           Additionally, pursuant to OCGA 14-3-510(b)(3), PHI is directly subject to venue in this county because the cause of action originated in this county and the corporation has an office and transacts business in this county.

78.           PHI 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 Kevin Brown, President & CEO of PHI

79.           Kevin Brown may be served at his place of work: 1800 Howell Mill Road, Suite 850, Atlanta, GA, 30318.

80.           Kevin Brown has been properly and timely served with this Complaint.

81.           Kevin Brown is subject to the personal jurisdiction of this Court.

82.           Kevin Brown is subject to the subject-matter jurisdiction of this Court in this case.

83.           Pursuant to OCGA 9-10-31, Kevin Brown is subject to venue in this county because at least one of his codefendants (UHS) is subject to venue here.

84.           Kevin Brown 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 University Health Services, Inc. (UHS)

85.           UHS may be served through its Registered Agent, CSC of Cobb County, Inc. at 192 Anderson Street, N.E., Suite 125, Marietta, GA, 30060.

86.           UHS has been properly and timely served with this Complaint.

87.           UHS’s principal office address is 1350 Walton Way, Augusta, GA, 30901, in Richmond County.

88.           UHS is subject to the personal jurisdiction of this Court.

89.           UHS is subject to the subject-matter jurisdiction of this Court in this case.

90.           Pursuant to OCGA 14-3-510(b)(3), UHS is directly subject to venue in this county because the cause of action originated here, and the corporation has an office and transacts business in this county.

91.           UHS 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 James R. Davis

92.           James R. Davis has been properly and timely served with this Complaint.

93.           Davis is subject to the personal jurisdiction of this Court.

94.           Davis is subject to the subject-matter jurisdiction of this Court in this case.

95.           Davis is directly subject to venue in this county because he resides in this county.

96.           Additionally, pursuant to OCGA 9-10-31, Davis is subject to venue in this county because other joint tortfeasors are subject to venue here.

97.           Davis 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

Medical Error, Patient Safety, and Healthcare Administration[12]

Overview

98.           The healthcare system is complex and not widely understood. Even nurses and physicians working inside a hospital may have limited knowledge of how the hospital is administered.

99.           People who do not work in healthcare administration can easily make assumptions that are strong but wrong — including the assumption that medical error is solely a matter of individual error by the licensed healthcare professionals directly involved in patient care.

100.        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.[13]

101.        That passage expresses the consensus in the healthcare community.

102.        Plaintiffs attach and incorporate into this complaint the following exhibits, which explain the role of healthcare administrators in medical error and patient safety.[14]

Exhibit 1: Affidavit of Peter Mowschenson, MD

Exhibit 2: Affidavit of Jonathan Burroughs, MD

Exhibit 3: Excerpt from the Joint Commission Comprehensive Accreditation Manual for Hospitals (effective Jan. 1, 2022), regarding hospital leadership

Exhibit 4: Excerpt from Understanding Patient Safety, 3d Ed. By Robert Wachter and Kiran Gupta

Exhibit 5: Sentinel Event Alert: “The essential role of leadership in developing a safety culture.”

Exhibit 6: Piedmont Healthcare Inc., “Time out for safety.”

Exhibit 7: Affidavit of Cynthia Caroselli, RN, PhD.

Exhibit 8: National Institute of Medicine, To Err is Human: Building a Safer Health System (excerpts).

Exhibit 9: Affidavit of Alan Markowitz, PhD.

The Healthcare Business

103.        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.

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

105.        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.

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

107.        Healthcare corporations typically invite the public to come to the corporations’ facilities for services, many of which could be provided at other facilities.

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

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

Scale of Harm from Medical Error

110.        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.

111.        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.[15]

112.        By comparison, in the year 2022, commercial airline crashes worldwide accounted for approximately 19 deaths.

Flawed Systems as a Cause of Medical Error

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

114.        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.

115.        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.

116.        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.”[16]

117.        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

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

119.        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, physicians working in the hospital are not even employed by the hospital corporation but simply have “privileges” to work at the hospital.

120.        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.

121.        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.

122.        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

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

124.        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. From the perspective of the person performing the work, 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.

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

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

127.        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.

128.        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.

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

130.        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.

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

132.        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.

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

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

135.        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

136.        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.

137.        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.

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

139.        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.

140.        As shown in their Answers to the original Complaint, Piedmont Healthcare holds to this Blame-the-doctors-and-nursesmentality.

141.        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.”[17]

142.        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.

143.        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.”[18]

Surgery & Patient Safety

144.        Some surgeries are needed for emergencies, so that both the patient and the providers are constrained in their decisions concerning the surgery. Other surgeries are elective. For elective surgeries, patients and providers have more choices — whether to go forward with the surgery at all, when to do it, what facility to use, etc.

145.        Just as no individual is compelled to take a job as a hospital manager, so hospitals are not compelled to offer surgeries, or any particular type of surgery.

146.        Different hospitals offer different types of surgeries, depending on the hospital’s resources and business strategy. Some small facilities offer few or no surgeries.

147.        Hospitals offer surgeries in part because the hospital corporation gets paid for surgeries performed at its facility.

148.        Hospital corporations and managers generally (and in this case specifically) offer their services to the public and invite patients to come to the hospital for the surgeries and procedures provided there.

149.        To offer an elective surgery without ensuring the providers at the hospital will be able to properly handle the known, catastrophic complications creates unnecessary risk. It increases the danger to the patient. It makes it highly likely that some patient will suffer unnecessary, avoidable harm.

150.        A hospital’s managers must ensure that if the hospital offers a type of elective surgery, the relevant providers will be able to properly handle the known complications that can kill the patient in a matter of minutes.

151.        If a hospital cannot or will not make sure the relevant providers are able to properly handle such complications, then the hospital should not offer the surgery electively.

152.        It is not too much to expect of a hospital that they will ensure their providers are able to handle post-surgery complications that are (1) well known, (2) potentially catastrophic, and (3) can kill a patient in minutes. The set of complications that meet all three of these criteria is small.

Thyroidectomies & Post-Operative Hematomas

153.        A post-operative hematoma in the neck is a well-recognized complication of a thyroidectomy — and has been for decades.

154.        Such a hematoma can occur after a well-performed surgery and does not in itself indicate any negligence by the surgeon.

155.        Such a hematoma can cause death or other catastrophic injury in a matter of minutes.

156.        It is crucial that any hospital offering thyroidectomies (or similar neck surgeries) take care to ensure the relevant nursing and medical staff are trained, equipped, and instructed to respond immediately and properly to signs of severe respiratory distress in a post-thyroidectomy patient.

157.        The immediate response must be to cut the sutures on the skin at the incision site. This is critically important. If the sutures are cut, then the accumulating blood and other fluids can flow out without compressing the trachea (the windpipe). If the sutures are not cut, the hematoma may compress the trachea — suffocating the patient.

158.        A rapidly expanding hematoma can suffocate a patient and cause severe brain injury in a matter of minutes.

159.        It is therefore critical that nurses caring for post-thyroidectomy patients be trained, instructed, and equipped to cut the sutures on the skin at the incision site if they see the patient showing signs of severe respiratory distress — before or simultaneously with calling for additional help.

160.        Calling a Code Blue and waiting for the Code team to arrive, without cutting the sutures on the skin at the incision site, exposes the patient to greater danger. It may take several minutes for the Code team to arrive. The patient may suffer brain injury before the team arrives.

161.        If the sutures at the incision site are cut promptly upon signs of respiratory distress, the patient is highly unlikely to suffer serious injury from the hematoma.

162.        This simple intervention, cutting the sutures at the incision site, normally takes mere seconds.

163.        In a hospital that offers thyroidectomies (or similarly invasive neck surgeries), the nurses caring for such patients, and individuals serving on Code teams, should be trained and instructed that with severe post-op respiratory distress in such patients, the sutures on the skin at the incision site must immediately be cut — rather than, for example, calling a Code Blue or attempting to bag or intubate the patient without cutting the sutures.

164.        Suture or staple-removal kits should be kept at the bedside for post-operative patients who have undergone thyroidectomies or similarly invasive neck surgeries.

165.        A hospital can easily ensure that its staff are trained, instructed, and equipped to handle severe respiratory distress in a post-thyroidectomy patient. The concepts are simple and can be explained in a few minutes.

166.        The actions themselves — seeing that a patient can’t breathe and cutting the sutures on the skin at the incision site — require no technical knowledge or skill. A layperson can do it.

167.        The risks of cutting the sutures (e.g., infection) are trivial compared to the risk of not cutting the sutures (e.g., brain injury or death).

Piedmont’s Marketing & Failure to Prepare

168.        In the months and years before Dorothy Crawford’s surgery, PHI and UHS (with the participation of Brown and Davis) advertised the Hospital’s surgery services.

169.        PHI and UHS (with the participation of Brown and Davis) invited the public to come to the Hospital for elective surgeries — many of which would require general anesthesia that renders the patient helpless, and many of which would require in-patient post-surgical recovery periods lasting hours or days during which the patient’s ability to care for him- or herself would be significantly reduced.

170.        PHI and UHS (with the participation of Brown and Davis) specifically advertised the Piedmont System and the Hospital as safe for patients.  

171.        For example, PHI’s website even now includes a post stating:

According to Matthew Schreiber, M.D., vice president of safety for Piedmont Healthcare, if hospitals would practice the Always Safe program that Piedmont has in place today, they could reduce preventable events of patient harm by as much as 80 percent within three years.

. . .

Safety is a part of the Piedmont culture. Every employee – physicians, nurses, techs and even those in non-clinical positions – is required to attend mandatory safety training as part of our Always Safe program. For example, routine steps are taken to ensure our staff confirms various information on patients before treating them. This includes verifying the name, date of birth, medication, dosage, procedure, etc.

Employees are also empowered to speak up or question a manager or physician if they feel something is “not quite right.” “We’ve made a promise to make safety our top priority at Piedmont,” Dr. Schreiber says. “Our patients expect the very best care when they visit one of our hospitals, clinics or doctors’ offices. We give them the same care we would our own families.”[19]

172.        PHI and UHS offered elective thyroidectomy surgeries at the Hospital. They invited patients and surgeons to undergo or perform elective thyroidectomies at the Hospital.

173.        Nonetheless, PHI and UHS either (a) failed to train, instruct, and equip the nurses caring for post-thyroidectomy patients in how to respond when such patients are having difficulty breathing or (b) failed to take reasonable action to make sure the nurses did as they were trained, instructed, and equipped to do.

Dorothy Crawford Suffocates

174.        No one warned Dorothy Crawford about the lack of preparation at the Hospital.

175.        Dorothy Crawford underwent a thyroidectomy at Piedmont Augusta Hospital on May 10, 2022. (PAA 963-64.)[20]

176.        The surgery ended about 0916 hrs. (PAA 975.)

177.        At about 1058 hrs, Dorothy was taken from the surgery recovery room to a room on the Orthopedic & Spine Surgery floor. (PAA 19.)

178.        Dorothy’s husband and daughter (Clinton and Bonita) were in Dorothy’s room.

179.        Sometime around 1450 hrs, Dorothy had difficulty breathing.

180.        Dorothy’s daughter, Bonita, ran out to get a nurse.

181.        A nurse came in, saw Dorothy was having difficulty breathing, saw that the surgical drain was full of blood, and saw swelling at Dorothy’s neck incision. (PAA 74.)

182.        The nurse did not cut any sutures. (PAA 74.)

183.        The nurse called for help. (PAA 74.)

184.        The charge nurse came in. (PAA 74.)

185.        The charge nurse did not cut any sutures. (PAA 74.)

186.        The swelling continued to grow, and Dorothy had increasing difficulty breathing. (PAA 74.)

187.        Still the nurses did not cut any sutures. (PAA 74.)

188.        After Dorothy’s ability to breathe was blocked/compromised, one of the nurses called a Code Blue / Medical Emergency Team. (PAA 74.)

189.        When the nurse called the Code Blue, Dorothy still had a pulse. (PAA 74.)

190.        At some point, someone also called Dr. Karen Anne Yeh, the surgeon who performed the thyroidectomy. (PAA 344.)

191.        Dr. Yeh arrived before the critical care physician on the Code Blue team. (PAA 344.)

192.        When Dr. Yeh arrived at Dorothy’s bedside, someone was giving Dorothy chest compressions. (PAA 344.) This indicates that Dorothy’s heart had already stopped beating. The hematoma suffocating her had caused respiratory arrest, which in turn had caused cardiac arrest.

193.        So when Dr. Yeh arrived — before the Code Blue team physician arrived — Dorothy had already been in respiratory arrest for at least 3-5 minutes, maybe longer.

194.        Still, no one had cut any sutures. (See PAA 344, 825.)

195.        Even after complete respiratory arrest, no one had cut any sutures.

196.        Even after cardiac arrest — after suffocation had caused Dorothy’s heart to stop beating — no one had cut any sutures.

197.        Dr. Yeh cut the sutures at the incision site and started to evacuate the hematoma that had suffocated Dorothy. (PAA 344, 825.)

198.        Dr. Connie Trello, a critical care physician on the Code Blue team, arrived as Dr. Yeh was opening Dorothy’s neck. (PAA 344, 825.)

199.        It was obvious there was bleeding in Dorothy’s neck. (PAA 344, 825.)

200.        At about 1521 hrs, providers wheeled Dorothy to the ICU. (PAA 19.)

201.        About 50 minutes later, around 1612 hrs, Dr. Yeh performed a surgery to evacuate the hematoma. (PAA 19, 979.)

202.        By about 1842 hrs, Dorothy was returned to the ICU, after the hematoma evacuation. (PAA 19.)

203.        Dorothy had suffered a catastrophic brain injury because the post-operative hematoma suffocated her.

204.        Dorothy never recovered. She languished in the hospital, unconscious.

205.        About 6 weeks later, on June 23, 2022, her husband Clinton and daughter Bonita agreed to place Dorothy on “Do Not Resuscitate” status. (PAA 61.)

206.        From that point, Dorothy lingered another 8 weeks, and passed away on August 15, 2022, at 10:50 in the morning. (PAA 5693.)

The Defendants’ Roles, Generally

207.        Each of the four Defendants was involved in different but important ways in managing Piedmont Augusta Hospital — including the Hospital’s patient safety systems and processes.

UHS

208.        UHS operates the Hospital now and did so in May 2022. 

209.        UHS is a corporation organized under Georgia law. UHS is a legal person. Under Georgia law, UHS has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.[21]

210.        UHS operates under Amended and Restated Articles of Incorporation filed with and certified by the Georgia Secretary of State on March 1, 2022.

211.        UHS’s business and affairs includes operating Piedmont Augusta Hospital.

212.        As stated in its Amended & Restated Articles of Incorporation, “The purpose of the Corporation [includes] … to lease, from The Richmond County Hospital Authority, and operate Piedmont Augusta, Piedmont Augusta - Summerville Campus, and related facilities as an acute-care general hospital….”

213.        UHS voluntarily undertook responsibility for the management of the Hospital — including the patient-safety systems and processes at the Hospital.

214.        UHS’s responsibilities included managing a process to make sure that for each elective surgery the Hospital offered, the relevant providers were prepared to properly handle the known post-operative complications that can kill the patient in minutes. UHS voluntarily undertook that responsibility.

James R. Davis

215.        James R. Davis has retired, but in May 2022 he was the President and CEO of UHS. (All allegations concerning Davis apply to May 2022.)

216.        Davis was not a licensed healthcare provider. He was not licensed for any profession listed in OCGA 9-11-9.1. Davis served in a purely administrative role, never as a healthcare provider.

217.        As a condition of participating in the Medicare program (which it did), the Hospital’s governing body was required to appoint a chief executive officer who was responsible for managing the Hospital.[22] Davis was that chief executive officer.

218.        On behalf of UHS and with actual authority delegated to him by UHS, Davis served as the chief executive officer of the Hospital.

219.        Davis undertook responsibility for managing UHS and the Hospital — including the patient-safety systems and processes at the Hospital.

220.        Davis’s responsibilities included managing a process to make sure that for each elective surgery the Hospital offered, the relevant providers were prepared to properly handle the known post-operative complications that can kill the patient in minutes.

221.        Davis undertook these responsibilities voluntarily. He was paid for them. In 2021, for example, he was paid over $2.3 million for undertaking these responsibilities.

PHI

222.        PHI is a corporation organized under Georgia law. PHI is a legal person. Under Georgia law, PHI has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.[23]

223.        PHI owns UHS (and owned it in 2022). UHS is and was a wholly owned subsidiary of PHI.

224.        An owner of a company need not be involved in managing the company. A shareholder (even a 100% shareholder) need not be involved in managing the corporation. Nonetheless, PHI chose to involve itself in the management of its subsidiaries, including UHS and the Hospital.

225.        PHI operates under Amended and Restated Articles of Incorporation that were filed with and certified by the Georgia Secretary of State on February 15, 2012.

226.        PHI is not organized merely to own subsidiary corporations and make money off them.

227.        As stated in the 2012 Articles, “The Corporation is organized … to perform the functions of … and to carry out the … purposes of” its subsidiaries and affiliates “by providing … management services … coordination and supervision.”

228.        PHI provides management services, coordination, and supervision to UHS and the Hospital.

229.        In 2021, PHI was paid over $136 million for management services to its subsidiaries, including UHS. PHI reported that to the Internal Revenue Service.

230.        PHI reported to the IRS that the Board of Directors of PHI appoints all the members of the boards of directors of each of its supported subsidiary entities.

231.        PHI reported to the IRS that the policies and decisions of each of PHI’s supported subsidiary entity boards of directors — including UHS’s board — must be filed, immediately after adoption, with the secretary of the PHI Board of Directors.

232.        PHI reported to the IRS that policies and decisions of the subsidiary boards of directors may be rescinded by the PHI board through a majority vote of its directors.

233.        PHI reported to the IRS that the programs and activities of each of PHI’s supported subsidiary organizations, including services offered, annual operating budgets, and appointment and compensation of senior executives, are determined by or subject to the review of PHI’s executive leadership and Board of Directors.

234.        PHI does not merely own UHS. PHI controls, manages, and directs the activities of UHS.

Kevin Brown

235.        Kevin Brown is the President and Chief Executive Officer of PHI and was in May 2022.

236.        In 2022, Kevin Brown was not a licensed healthcare provider. In 2022, Kevin Brown was not licensed for any profession listed in OCGA 9-11-9.1. Kevin Brown has never been licensed for any profession listed in OCGA 9-11-9.1. In his work on behalf of PHI, Kevin Brown served in a purely administrative role, never as a healthcare provider.

237.        Brown undertook responsibility for managing PHI’s activities — including PHI’s mission to “perform the functions of” and provide “management services” to PHI’s subsidiaries including UHS.

238.        Brown was personally involved in management services and supervision — albeit at a high level — for the hospital subsidiaries in the Piedmont System, including UHS and Piedmont Augusta Hospital.

239.        In the years leading up to 2022, Kevin Brown said quality, safety and service lay at the heart of Piedmont’s strategic vision.

240.        Brown’s responsibilities included high-level oversight of the patient safety systems and processes of PHI and the Healthcare System PHI owned.

241.        Brown undertook these responsibilities voluntarily. He was paid for them. In 2021, for example, he was paid over $3.5 million for undertaking these responsibilities.

The Defendants’ Involvement in Patient Safety for Surgery

242.        None of the four Defendants are licensed healthcare professionals, but all four have deep expertise in healthcare.

243.        The two corporate Defendants run healthcare systems. Those systems possess vast medical expertise that is imputable to the corporations.[24] And because of their resources, they have access to essentially unlimited medical expertise from external sources.

244.        The two individual Defendants have spent decades as executive officers in healthcare systems and have greater knowledge of medical matters than an ordinary layperson would have.

245.        All four Defendants understood these concepts:

a.     Surgeries can have post-operative complications.

b.     Some of those complications can kill a patient in minutes.

c.     If you’re a hospital and you invite the public to come to you for elective surgery, you have to make sure you can handle any known complications of that surgery that can kill the patient in minutes.

246.        All four Defendants understood that the Hospital and they as its managers were obligated to work diligently to protect patient safety — including surgery and post-surgery patients.

247.        All four Defendants understood that, as the National Institute of Medicine put it, “Chief executive officers and boards of trustees must make a serious and ongoing commitment to creating safe systems of care. … [A] meaningful safety program should include senior-level leadership, defined program objectives, plans, personnel, and budget, and should be monitored by regular progress reports to the executive committee and board of directors.”

248.        Nonetheless, none of the four Defendants did their part.

249.        The corporate Defendants had overall responsibility, and they’re responsible for the system breakdown regardless of the level at which it broke down.

250.        The individual Defendants had more limited personal responsibilities. The CEOs were involved in management only at the highest, most general level.

251.        Even from the information available before the original Complaint was filed, however, it could be inferred that the system broke down at the top, at the CEO level: The complete absence of any recognition by anyone in the Hospital that a patient in Dorothy’s situation needed her sutures cut or might die — that near-universal lack of recognition indicated there was no program at all to prepare for post-op complications. There was no such program, because the system failed at the top, including a failure of the CEOs to do their part properly.

252.        Similarly, the failure of the Hospital to disclose any error to Dorothy’s family indicates a failure from the top. It means Dorothy’s case was not flagged as an adverse event to investigate. It means the Hospital management did not learn that there was any error in Dorothy’s care. Again, it indicates there was neither a program to prepare for post-op complications nor a program to identify and investigate concerning adverse events. There were no such programs, because the system failed at the top, including a failure of the CEOs to do their part properly.

253.        More recently, through their statements in their Answers to the original Complaint, the Defendants have confirmed that the system broke down at the top.

The Damage Done

254.        Dorothy and Clinton Crawford came together when each of them provided the other a new start. They met in 1970. Dorothy was 28 years old, with a 7-year-old daughter (Bonita) from a prior marriage. Clinton was 32, with two boys from a prior marriage.

255.        They met, married the same year, and remained together until the end — for 52 years, until Dorothy’s death in 2022.

256.        Over 50 years, Dorothy and Clinton supported each other and built a life together. They stayed together through the death of one of Clinton’s boys. They cared for one of Bonita’s uncles as he declined and passed away. They worked and saved to buy a house and build a business and raise Bonita together. They served in their church — Clinton as a deacon, Dorothy as a deaconess. Dorothy taught Sunday School.

257.        Dorothy was kind and sweet, but stern. She made a habit of giving money to people who asked for it on the street. When a friend said they would just use the money for beer, Dorothy said “I give the money to them for my heart. What they do with it is their business.” At the same time, Dorothy did not approve of people slacking off. She kept a neat house. She could be blunt when someone — a husband, a child — was slow to clean up a mess.

258.        Dorothy liked Aretha Franklin and Archie Bunker. She liked Tina Turner and Clint Eastwood. She favored Clint Eastwood over John Wayne. 

259.        Dorothy was famous among friends for her ox tail and for her blueberry crumble. She didn’t like ox tail much herself, but her friends did.

260.        In the 1980’s, ten years or so into their marriage, Clinton started to lose his eyesight. He had been a painter. He had to sell his business and find a new line of work. Dorothy supported him. Over the years, Clinton’s eyes and overall health got worse. He couldn’t do much around the house. Dorothy picked up the slack and didn’t complain.

261.        Dorothy cared for Clinton and steered him away from foods they both knew would cause him pain later. Clinton would reach for the snack, and Dorothy would slap his hand away. It was tough, but it was love, and Clinton loved her for it.

262.        They bought the house, and by hard work and living frugally, they paid off the 40-year mortgage in 20 years.

263.        They were in Miami. As they got older, they realized their money wasn’t going to last if they stayed there. In 2019, they moved to the Augusta area, where they didn’t know anyone, but the cost of living was manageable.

264.        The sunrises and sunsets from their place can be spectacular. Dorothy would jostle Clinton awake in the morning, so they could get coffee and drink it on the porch as the sun rose.

265.        Dorothy was always careful about what she ate. She was generally healthy. She had the thyroidectomy because of a benign but annoying goiter. The surgery was safe and routine, they said.

266.        Dorothy loved the kids. Bonita — “Bunny” to Clinton — came up from Florida to be with Dorothy for the surgery. After the catastrophe, Bonita came up as much as she could to be with her mother. Bonita had a job she enjoyed with the Miami Herald. She quit the job to be with her mother.

267.        After 50 years together, having lost Dorothy, Clinton is bereft. He’s in the Augusta area without family or close friends. He’s close to blind. Two years after Dorothy’s death, he still thinks about her too much. He listens to the TV and tries not to think of Dorothy. But still he thinks of her. Hours stretch into afternoons, and he thinks about her.

268.        “The worst thing is the loneliness,” Clinton says.

269.        Clinton can pay for help getting by day to day. He hires a man to mow the lawn. He pays a woman to do housecleaning. But without Dorothy, there’s no one to talk to, no one to drink coffee with him on the porch, no one who loves him at his side sunrise sunset. “I’m so lonely,” he says. “I miss her so much.”

270.        In the days after the hematoma suffocated Dorothy, it was unclear how much brain injury she had suffered. The first CT scan showed no new brain injury. The EEG was inconclusive. The neurologist assured Clinton and Bonita that Dorothy was not brain dead.

271.        Clinton and Bonita hoped against hope that Dorothy would recover. The hope itself turned out to be cruel.

272.        Bonita clung to her mother. What Dorothy would have given to wake up and comfort her daughter.

273.        As Dorothy languished in a hospital bed, she developed a stage 4 pressure wound on her backside. Such wounds are simple to prevent: The patient must be turned every couple hours. The Hospital did not do that. A stage 4 wound means a deep wound, down to bone.

274.        Dorothy’s tongue became enormously swollen, sticking out of her mouth weirdly and disturbingly.

275.        All her life, Dorothy had been careful of her appearance. After the suffocation, the pressure wound and swollen tongue seemed a grotesque mockery of her.

276.        Six long weeks into the ordeal — after six weeks of hope repeatedly defeated — Clinton and Bonita agreed to place Dorothy on “Do Not Resuscitate” status, with medication to keep her comfortable.

277.        That decision was agonizing, but Clinton was confident it was what Dorothy would want. Dorothy was not vain or frivolous, but she was proud. She cared about her appearance. She had told Clinton she would not want to live in a deformed comatose state. She had said she would not want to be seen like that.

278.        By the time of the DNR decision, Clinton’s and Bonita’s hearts were broken. The decision closed the door on hope.

279.        According to the statistical life tables, Dorothy had about another 10 years to live — a decade of mornings on the porch with Clinton, of phone calls and visits with Bonita, of hopeful watching as the future unfolded before her daughter.

The Defendants’ Response

280.        The Defendants, like everyone else, are required to deal honestly with others and tell the truth.

281.        The existence of litigation does not license hospital managers to speak falsely.[25]

282.        As part of their patient-safety responsibilities, healthcare corporations are required to identify cases in which patients may have been seriously harmed by medical error, and then investigate and figure out what happened. If it turns out the patient was seriously harmed by medical error, the corporation is required to disclose the error to the patient.

283.        After Dorothy Crawford suffocated and suffered the brain injury that eventually killed her, the Hospital — managed by the Defendants — did nothing. They did not flag the case, they did not investigate it, they did not figure out what happened, and they did not disclose any error to Dorothy’s husband or daughter.

284.        Nor did the Defendants take any remedial action.

285.        After this legal case was filed, each of the Defendants adopted a nearly complete ADMIT NOTHING approach.

286.        In responding to the original Complaint, the Defendants wouldn’t even admit that Dorothy suffered a brain injury at the Hospital. The individual Defendants claimed total ignorance, although they had the medical records. The corporate Defendants would not admit, deny, or even claim ignorance.

287.        The Defendants denied that a post-operative hematoma in the neck is a well-recognized complication of a thyroidectomy.

288.        They denied that a post-thyroidectomy hematoma can expand rapidly, compress the windpipe, suffocate the patient, and cause brain injury and death in minutes.

289.        James Davis, the CEO of the Hospital — who undertook responsibility for managing the Hospital in return for millions of dollars — denied that he was personally involved in managing the Hospital.

290.        Kevin Brown, the CEO of Piedmont Healthcare — taking millions to act in that role — denied he was involved in managing quality and safety in the Piedmont System.

291.        PHI denied the Articles of Incorporation they filed with the Georgia Secretary of State.

292.        PHI denied facts they represented to the Internal Revenue Service. In their tax return for 2021, they told the IRS that they made $137 million for “management services to affiliates.” In their Answer, PHI denied that.

293.        Most importantly, all four Defendants denied basic principles of healthcare management and patient safety. They denied, among other things:

a.     That healthcare corporations play a critical role in protecting patients from medical error.  

b.     That healthcare corporations must work diligently to protect patients from medical error.

c.     That 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.

294.        All four Defendants denied that if a hospital’s administration chooses to offer a type of surgery, the administration must ensure the staff are trained, instructed, and equipped to properly handle the known post-operative complications that can kill the patient in minutes.

295.        The Defendants’ statements in their formal court filings in this legal case did not cause harm to Dorothy Crawford. But those statements are evidence of the Defendants’ abandonment of their responsibilities — which did cause harm to Dorothy.

CAUSES OF ACTION

296.        Plaintiffs’ causes of action are based on the averments stated above as well as the additional averments stated below.

297.        Discovery may produce new information that changes the basis of Plaintiffs’ claims.

298.        The averments below 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.

Negligence (All Defendants)

Simple Negligence, Not Medical Malpractice

299.        This “simple” or “ordinary” negligence claim is not a claim for professional malpractice subject to OCGA 9-11-9.1.[26]

300.        The individual Defendants are not licensed healthcare providers. They are not licensed for professions listed in OCGA 9-11-9.1.

301.        This claim addresses the role of purely managerial or administrative negligence in the breakdown of the Hospital’s patient-safety systems and processes.

302.        A hospital’s patient-safety systems and processes include purely managerial work as well as professional healthcare work. Negligent management can (and did here) contribute to harm to patients.

Direct[27] vs. Vicarious[28] Liability

UHS

303.        UHS is directly liable for its own personal negligence in administering Piedmont Augusta Hospital.

304.        UHS is directly liable for the negligence of (i) any individual who acted with actual authority of UHS, (ii) any individual whose actions UHS ratified, and (iii) any individual to whom UHS delegated the performance of UHS’s duties to use care to protect patients.[29]

305.        Defendant Davis is one such individual. He meets all three conditions.

306.        There are other individuals (unknown without discovery) who meet one or more of those conditions.

307.        UHS is vicariously liable for the negligence of any individual who does not meet any of those three conditions but who nonetheless was negligent either (i) while acting within the scope of employment or (ii) while acting with apparent authority in dealing with a third party on or purportedly on behalf of UHS.[30]

308.        There may be individuals (unknown without discovery) who meet one of those two conditions.

PHI

309.        Unless some basis exists for piercing the corporate veil (unknown without discovery) PHI is not vicariously liable for the negligence of UHS based solely on PHI’s ownership of UHS.

310.        But PHI voluntarily undertook to participate in the management of the Hospital and is directly liable for its own personal negligence in that work.

311.        PHI is directly liable for the negligence of (i) any individual who acted with actual authority of PHI in participating in the management of the Hospital, (ii) any individual whose actions in participating in the management of the Hospital PHI ratified, and (iii) any individual to whom PHI delegated the performance of PHI duties to use care to protect patients in participating in the management of the Hospital.

312.        Defendant Brown is one such person, because he meets all three conditions.

313.        There are other individuals (unknown without discovery) who meet one or more of those conditions.

314.        PHI is vicariously liable for the negligence of any individual who does not meet any of those three conditions but who nonetheless was negligent either (i) while acting within the scope of employment in participating in the management of the Hospital or (ii) while acting with apparent authority in dealing with a third party on or purportedly on behalf of PHI in participating in the management of the Hospital.

315.        There may be individuals (unknown without discovery) who meet one of those two conditions.

Davis & Brown

316.        Davis and Brown each are directly liable for their own personal negligence in their work administering the Hospital.[31]

317.        Plaintiffs do not know of any other person involved in managing the Hospital who did so as an agent of Davis or Brown (as opposed to UHS or PHI). Plaintiffs do not expect discovery to reveal that anyone did so. But if anyone did, then Davis or Brown would be liable for such person’s negligence either directly or vicariously, depending on the circumstances (which are yet unknown).

Duties

Actions Taken

318.        Each of the Defendants had duties to perform reasonably in the actions they took.

Affirmative Duty to Take Action

319.        Each of the Defendants also had affirmative duties to take action in connection with managing the Hospital and its patient safety functions (and to do so reasonably).

Voluntary Undertaking & Increase of Danger by Negligence

320.        Each of the Defendants had affirmative duties to take action because they each voluntarily undertook to participate in managing the Hospital and its patient safety functions, including for surgery patients.[32]

321.        Each Defendant knew that managing the Hospital and its patient safety functions was necessary for the protection of third persons — namely, the Hospital’s patients.

322.        Each Defendant knew that operating the Hospital without proper patient safety processes would increase the danger to patients.

323.        Operating the Hospital without proper patient safety processes would increase the danger to patients and all but guarantee patient harm that would otherwise not occur.

324.        Negligence by each of the Defendants in their respective roles in managing the Hospital’s patient-safety processes did in fact increase the danger to patients, including Dorothy Crawford.

325.        Because of their negligence, the Hospital offered elective surgeries (including thyroid surgery) without ensuring that the providers at the hospital would be able to properly handle the known complications that can kill the patient in a matter of minutes. That increased the danger surgery patients at the Hospital (including Dorothy Crawford).

326.        The Defendants’ negligence made it more likely that medical error would occur and harm patients.

327.        Indeed, the complete abdication of their patient-safety responsibilities evidenced by the Defendants’ statements in their Answers made it inevitable that unnecessary, preventable patient harm would occur.

Special Relations & Risk Created by Past Actions

328.        Additionally, each of the Defendants participated in inviting the public to the Hospital for elective surgeries and post-surgical care while the patient would be at the mercy of the providers at the Hospital.

329.        Many of those surgeries involved rendering the patient unconscious and helpless during surgery.

330.        Many of those surgeries involved post-surgery care in which the patient would be in the custody of the Hospital and rendered largely or entirely helpless.

331.        Having performed such marketing to the public, it would be unreasonably dangerous and would cause unnecessary harm if the Hospital proceeded with the surgeries without having proper patient-safety processes in place — including ensuring the Hospital could properly handle known post-surgery complications that could kill a patient in minutes.

332.        Each Defendant knew that having performed such marketing to the public, it would be unreasonably dangerous and would cause certain harm if the Hospital proceeded with the surgeries without having proper patient-safety processes in place

333.        For this additional reason, in their involvement in managing the Hospital, each Defendant had a duty to take reasonable steps to ensure such preparation.[33]

Duty to Manage Patient Safety for Surgery Patients

334.        In their various roles in managing the Hospital, each of the Defendants had duties to ensure that adequate patient safety systems and processes were in place and functioning properly.

335.        In participating in the management of the Hospital, each Defendant had duties to manage processes to ensure that for each elective surgery offered at the Hospital, the relevant providers were trained, instructed, and equipped to properly handle the known post-operative complications that could kill the patient in minutes.

336.        Each Defendant had these managerial duties by virtue of regulatory and accreditation requirements, the customs and practices in the industry, their own knowledge, and their voluntary undertakings.

337.        Each Defendant was responsible for bringing to bear reasonable competence, knowledge, and preparation for the roles they undertook.[34]

338.        It is generally understood in the hospital industry — including by managers who are not healthcare professionals — that surgeries can have post-operative complications, that some of those complications can kill a patient in minutes, and that if a hospital invites the public to come for elective surgeries, the hospital must make sure the relevant providers can properly handle any known complications of that surgery that can kill the patient in minutes.

339.        It is generally understood in the hospital industry — including by managers who are not healthcare professionals — that a failure to ensure such preparation increases the danger for patients and makes it likely that some number of patients will suffer unnecessary harm.

340.        The duty to manage the Hospital to ensure preparation for post-surgery complications is not limited to offering training, instruction, and equipment to nurses.

341.        The duty also includes managing the Hospital to ensure proper nursing assignments — making sure that the nurses with the necessary training, instruction, and equipment are assigned to the units or patients who need those nurses (or alternatively, managing the Hospital to ensure that patients are assigned to the right units).

342.        The duty also includes managing the Hospital to ensure adequate discipline and morale so that nurses do as they are trained, instructed, and prepared to do.

Extent of Roles & Duties

Generally

343.        The Hospital is a large organization, and the patient safety function (including for surgery patients) involves many persons with different responsibilities.

344.        The various Defendants had varying degrees of personal responsibility for managing the Hospital’s patient safety functions.

345.        UHS personally undertook complete responsibility for managing the Hospital. UHS is therefore responsible for all of the managerial work involved in the Hospital’s patient safety program.

346.        PHI undertook more limited but still significant responsibility for managing the Hospital, including its patient-safety function.

347.        Davis and Brown, as CEOs of their respective corporations, undertook only high-level — but still critical — responsibility for managing the Hospital, including its patient-safety function.

Resources, Knowledge & Abilities

348.        The scope of the Defendants’ duties depended on their circumstances, including their resources, knowledge, and abilities.[35]

349.        Each of the Defendants had more than adequate resources, knowledge, and abilities (a) to know of the need to ensure the Hospital was prepared to properly handle known, potentially catastrophic, emergency post-surgery complications and (b) to create and maintain managerial processes to ensure such preparation.

UHS

350.        UHS operates Piedmont Augusta Hospital (the “Hospital”), an 812-bed, acute-care facility, as part of UHS’s multi-campus system that includes three hospitals, a heart and vascular center, prompt and primary care, home health and private physician offices.

351.        In 2021, UHS had over $1 billion in total assets, and net assets of over $645 million.

352.        In 2021, UHS had nearly $570 million in revenue and revenue less expenses of over $43 million (more than its parent company, PHI, on both counts).

353.        By virtue of its size and sophistication, UHS was well equipped to exercise care in managing the Hospital.

PHI

354.        PHI and the healthcare system it manages is even more large, well-resourced, and sophisticated than UHS.

355.        PHI provides management services, coordination, and supervision for an extensive system of healthcare facilities, including 23 hospitals (as of May 2024).

356.        In 2021, PHI had over $3.7 billion in total assets, and net assets of over $1.4 billion.

357.        In 2021, PHI itself had over $261 million in revenue, and revenue less expenses of over $40 million.

358.        PHI’s revenue does not include all (or even much of) the revenue of its subsidiaries. The revenue of the Piedmont System as a whole is larger than that of PHI alone.

359.        For example, one of PHI’s 23 subsidiary hospital companies is Piedmont Hospital, Inc. In 2021, that single subsidiary separately reported total revenue of over $1.3 billion, and revenue less expenses of over $70 million.

360.        By virtue of its size and sophistication, PHI was well equipped to exercise care in providing management services and supervision to UHS.

Davis & Brown

361.        As CEOs of their respective corporations, Davis and Brown had access to all the resources of those corporations.

Class of Persons to Whom the Duty was Owed

362.        As to malfeasance (re. actions taken), the Defendants owed duties to the class of persons foreseeably put at risk by the Defendants’ negligence — namely here, patients invited to the Hospital for elective surgeries.

363.        As to nonfeasance (re. the affirmative duty to act), the Defendants owed duties to the class of persons intended to be protected by the responsibilities the Defendants voluntarily undertook — namely, patients of the Hospital and surgery patients in particular.

Breaches

364.        Each of the Defendants breached their respective duties in managing the Hospital’s patient safety function, including processes to ensure the Hospital was prepared to properly handle known, potentially catastrophic, emergency post-surgery complications for the elective surgeries the Hospital offered.

365.        None of the Defendants took any managerial action to ensure the Hospital was prepared to properly handle known, potentially catastrophic, emergency post-surgery complications for the elective surgeries the Hospital offered.

366.        To the extent any Defendant did any managerial work to ensure the Hospital was prepared to properly handle known, potentially catastrophic, emergency post-surgery complications for the elective surgeries the Hospital offered, the Defendant performed the work negligently.

367.        None of the Defendants did anything in managing the Hospital to ensure that the relevant nurses at the Hospital were trained, instructed, and equipped to respond properly to a post-thyroidectomy patient showing signs of difficulty breathing.

368.        To the extent any nurses were trained, instructed, and equipped to respond properly to a post-thyroidectomy patient showing signs of difficulty breathing, the Defendants were negligent in failing to manage the Hospital to ensure nurses in that group were assigned to the patients who needed them — post-thyroidectomy patients.

369.        The system broke down at the top, starting at the level of the CEOs.

370.        The high-level breakdown is indicated by the completeness of the lack of understanding of how to respond to Dorothy Crawford’s situation, both during it and afterward. It was not a one-off failing by a single individual. Multiple nurses were involved, and none of them had any understanding of the proper response. Afterward, no one at the Hospital was aware of any deficiency in the nurses’ response. That indicates a high-level system breakdown, not just a failing by low-level subordinates.

371.        The high-level system breakdown is confirmed by the statements of each Defendant in their formal court filings in this case. In their Answers, each Defendant betrays a complete abandonment of their responsibilities for patient safety.

Causation & Damages

372.        The Defendants’ breaches of their duties were both a cause in fact and a legal cause of Dorothy Crawford’s injuries.

373.        As discussed above, poor patient-safety processes are a primary cause of harm from medical error.

374.        Surgeries regularly cause post-surgical complications.

375.        Performing surgeries without preparing for post-surgical complications is to play Russian roulette: Over time, it is guaranteed to harm some patient.

376.        A post-operative hematoma that threatens to suffocate the patient is a known complication of a thyroidectomy and other similarly invasive surgeries.

377.        Students in nursing school are not routinely trained on how to handle a post-thyroidectomy patient who develops difficulty breathing. Nursing school is necessarily general. Much training that is necessary for a nurse must happen on the job.

378.        If a hospital offers thyroidectomy surgery but does not ensure the relevant nurses are trained, instructed, and equipped to respond properly to post-operative respiratory distress, the hospital is playing with fire: Eventually, luck will run out and some patient will pay the cost — by getting suffocated and suffering brain injury.

379.        For a manager, it is one of the simpler things in healthcare administration to create and manage a process to ensure a hospital is prepared to handle the small set of known complications of surgery that can kill the patient in minutes. The manager need only assign competent healthcare professionals to the task, provide time and money for it, and periodically check on the process to make sure it moves along. The healthcare professionals have the hard work. The manager has the easy work. But if the manager doesn’t do that easy work, the task doesn’t get done. And patients pay the price.

380.        Here, the managers did not do their jobs. The Defendants did not create and manage a process to ensure that for each elective surgery the Hospital offered, the Hospital was prepared to handle the known complications that could kill the patient in minutes.

381.        Because the Defendants did not do the easy work of creating and managing the project, the project did not get done.

382.        Because the Defendants did not do the managerial work, no one trained, instructed, and equipped the relevant nurses in how to respond to severe difficulty of breathing in a post-thyroidectomy patient.

383.        Because the Defendants did not do the managerial work, it was all but guaranteed that some patient would suffer serious harm because of the Hospital’s failure to prepare.

384.        If the Defendants had created and managed a process to ensure that for each elective surgery the Hospital offered, the Hospital was prepared to handle the known complications that could kill the patient in minutes, the relevant nurses would have been trained, instructed, and equipped to respond properly to severe difficulty breathing in a post-thyroidectomy patient.

385.        Dorothy Crawford was the unlucky patient in the zone of danger when the Defendants’ recklessness inevitably caused harm.

386.        If Dorothy’s nurses had known what to do when Dorothy suffered severe difficulty breathing, the nurses would quickly have cut the sutures at Dorothy’s incision site before or at the same time as a Code Blue was called, Dorothy would have been able to breathe, and Dorothy would have suffered no serious harm.

387.        But because the Defendants had not created and managed a process to make sure the relevant providers were prepared, Dorothy’s nurses didn’t know what to do when Dorothy couldn’t breathe. So the nurses called a Code Blue and waited for help to arrive — minute, after minute, after minute, as Dorothy went into respiratory arrest and then cardiac arrest, and as Dorothy’s brain was deprived of oxygen and suffered injury.

388.        The Defendants’ negligence was a substantial factor in causing Dorothy to be suffocated and to suffer a catastrophic brain injury.

389.        But for the Defendants’ negligence, Dorothy would not have been suffocated and would not have suffered a catastrophic brain injury and its attendant consequences.

390.        By inviting patients to the Hospital for elective surgeries without ensuring the Hospital was prepared to handle known, potentially catastrophic post-operative complications of the surgeries, the Defendants actively created an unnecessarily dangerous condition.

391.        Dorothy Crawford was in the class of persons exposed to the unnecessary, dangerous condition created by the Defendants — namely, patients who submitted to elective surgery at the Hospital.

392.        It was not merely foreseeable but essentially guaranteed that some persons in that class would suffer harm because of the Defendant’s negligence.

Professional Malpractice: Nursing (Alternative Claim against UHS)

393.        As an alternative to a claim against UHS based on a failure to ensure the nurses were properly trained, instructed, and equipped, Plaintiffs assert a claim against UHS for nursing malpractice.[36]

Direct vs Vicarious Liability[37]

Direct Liability

394.        UHS takes upon itself the duty to provide nursing care to patients of the Hospital.

395.        UHS delegates the performance of the duty to individual nurses, including its nurse employees and temporary “contract” nurses.

396.        UHS is therefore directly liable for negligence in the performance of those nursing duties.[38]

Vicarious Liability[39]

397.        The nurses involved in the care of Dorothy Crawford when she developed severe post-surgery respiratory distress were employees or agents of UHS, for purposes of OCGA 51-2-5.1.

398.        UHS appointed those nurses to their role in Dorothy’s care.

399.        The nurses acted on behalf of UHS, as owner and operator of the Hospital.

400.        The nurses were employees of UHS.

401.        Any nurses who were not employees of UHS nonetheless were agents of UHS.

402.        UHS reserved the right to control the time in which all nurses performed services at the Hospital.

403.        UHS also reserved the right to control the manner or method in which all nurses performed services at the Hospital.[40]

404.        In their response to Dorothy’s severe post-surgery respiratory distress, the nurses acted within the course and scope of their employment with, or other agency for, UHS.

405.        UHS is vicariously liable for the personal negligence of the nurses involved in the care of Dorothy Crawford when she developed severe post-surgery respiratory distress.

Duty

406.        Any person undertaking a duty to provide nursing care was required to ensure the care complied with the standard of care.

407.        The proper response by Dorothy Crawford’s nurses, when Dorothy showed severe post-surgery respiratory distress, was to cut the sutures on the skin at the incision site. That is what the standard of care required.

Breach

408.        The nurses involved in the care of Dorothy Crawford when she developed severe post-surgery respiratory distress failed to cut the sutures on the skin at the incision site. They thereby violated the standard of care.

Causation & Damages

409.        Had the nurses responded properly — simply by cutting the sutures on the skin at the incision site — Dorothy would have quickly been able to breathe and would have suffered no permanent harm from the hematoma.

410.        Because the nurses did not do so, Dorothy suffocated and suffered a catastrophic brain injury, which eventually killed her.

Nursing Negligence vs. Administrative Negligence

If UHS is Telling the Truth

411.        According to UHS, the nurses were trained, instructed, and equipped to respond to a post-thyroidectomy patient’s severe post-surgery respiratory distress by cutting the sutures on the skin at the incision site. If that is true, then the nurses would also be individually liable for violating the standard of care by failing to do as they had been trained, instructed, and prepared to do.

412.        However, if the nurses were properly trained, instructed, and equipped (as UHS says), then the nurses’ failure to do as they were trained — even as Dorothy went into respiratory and cardiac arrest — reflects a major breakdown in discipline and morale at the hospital.

413.        The hospital administration is responsible for maintaining discipline and morale at the hospital.

414.        If the nurses were properly trained, instructed, and equipped, then the hospital administration was negligent in failing to maintain even the minimal discipline and morale at the hospital needed for the nurses to perform the simple, life-saving task of cutting the sutures as they watched Dorothy Crawford go into respiratory and cardiac arrest.

If UHS is Not Telling the Truth

415.        If UHS’s statement is false and in fact the nurses had not been trained, instructed, and equipped to respond to a post-thyroidectomy patient’s severe post-surgery respiratory distress by cutting the sutures on the skin at the incision site, then the nursing care was still negligent, but the fault and liability lies overwhelmingly on UHS for failing to ensure the nurses were properly trained, instructed, and equipped.

416.        Nonetheless, even if the nurses had not been trained properly, it would still violate the standard of care for a nurse with general training to fail to cut the sutures on the incision site after the patient went into respiratory arrest before other help arrived.

417.        Even general training enables a nurse to understand the concept of a hematoma in the neck compressing the windpipe, and to understand that cutting the sutures at the incision site would reduce pressure on the windpipe and prevent suffocation.

418.        Nurses have an obligation to care for their patients, and in an extreme, life-threatening emergency such as Dorothy Crawford suffered, a nurse must think and take action to save the patient’s life.

419.        If the nurses had not been trained properly, the hospital administration bears most of the responsibility for the negligent nursing care Dorothy Crawford received, but the nurses’ failure to cut the sutures at the incision site still violated the standard of care and played a contributing role.

REQUESTS FOR RELIEF

420.        Plaintiffs request judgment for the relief stated below. Each of the three primary claims for damages pulls a separate strand out of the overall human story of the case. Plaintiffs also request punitive damages and expenses of litigation.

Wrongful Death Damages

421.        On behalf of all wrongful death beneficiaries, as Dorothy’s surviving spouse, pursuant to OCGA 51-4-2, Clinton Crawford asserts a wrongful death claim against all Defendants.

422.        In Georgia, a wrongful death claim provides for the full value of the life of the decedent, from the decedent’s perspective. So the wrongful death claim here asks what the value of Dorothy’s life was to Dorothy (as opposed to the loved ones she left behind).[41]

423.        Pursuant to OCGA 51-4-2(a) this wrongful death claim seeks recovery for the full value of the life of Dorothy Crawford.

424.        Damages recoverable under this claim exclude medical expenses or other out-of-pocket financial costs.

425.        Pursuant to OCGA 51-4-2(e), no recovery had under this claim shall be subject to any debt or liability of Dorothy Crawford.

Consortium Damages

426.        On his own behalf, Clinton Crawford asserts a claim for loss of consortium against all Defendants.

427.        The consortium claim of Dorothy’s husband, by contrast with the wrongful death claim, asks what has been taken from Clinton, since he lost Dorothy.

428.        Damages recoverable under this claim include loss of services of the spouse, including not only household labor but also society, companionship, affection, and all matters of value arising from marriage.

429.        Damages recoverable under this claim exclude Dorothy Crawford’s medical expenses.

“Survival Action” Damages

430.        On behalf of the Estate of Dorothy Crawford, Bonita Adams asserts a claim for all relief Dorothy Crawford could have sought personally, if she had survived, against all Defendants.

431.        The Estate’s claims are distinct from the wrongful death claim and consortium claim asserted by Clinton Crawford. The Estate’s claim asks what losses Dorothy suffered before she died.

432.        The Estate seeks relief for general damages, including conscious pain and suffering.

433.        The Estate seeks recovery of medical expenses as special damages.

Punitive Damages

434.        Pursuant to OCGA 51-12.5.1, Plaintiffs request punitive damages because each of the Defendants’ actions showed willful misconduct or that entire want of care which would raise a presumption of conscious indifference to consequences.[42]

435.        Each of the Defendants is sophisticated. Each of the Defendants knew their duties.

436.        Each of the Defendants knew that UHS and the Hospital — and those taking part in senior management of the Hospital — were required to take responsibility for a patient safety program at the Hospital and to pursue it diligently. Yet each of those Defendants failed to do so.

437.        Furthermore, each of the Defendants knew that part of a minimally competent patient program must include active, diligent efforts to ensure the Hospital is prepared to properly handle the known, emergency complications of elective surgeries offered by the Hospital. Yet each of those Defendants abandoned any effort to do so.

438.        Additionally, each of the Defendants knew that part of a minimally competent patient program must include active, diligent efforts to identify unexpected adverse events that cause serious patient harm, to determine what if any errors caused the harm, and to disclose the error to the affected patient or family. Yet each of those Defendants abandoned any effort to do so.

439.        The Defendants’ complete abandonment of their duties could be inferred from the information available before the filing of the original Complaint. But their abandonment of duties is confirmed by their statements in their Answers to that Complaint.

440.        In formal statements in Court, signed by their Attorneys, made with the assistance of outside counsel, in-house risk management staff, and any other assistance available to them — and with five weeks to respond to a 40-page document — each Defendant denied fundamental principles of healthcare administration and patient safety. Each Defendant denied their own basic responsibilities.

441.        Each of the Defendants knew that by abandoning their duties concerning patient safety, they were putting patients at risk of harm — including potentially catastrophic harm.

442.        The Defendants abandoned their duties concerning patient safety knowingly and willfully.

443.        In abandoning their duties concerning patient safety, the Defendants showed an entire want of care which would raise the presumption of indifference to consequences.

Expenses of Litigation

444.        Pursuant to OCGA 13-6-11,[43] Plaintiffs request to recover their expenses of litigation, including attorney fees.

445.        There exists no bona fide controversy or dispute regarding liability for the underlying cause of action.[44]

446.        The non-existence of a bona fide dispute as to liability, and the Defendants’ adoption of a “so sue me” approach is established by the facts known before the filing of the original Complaint. But the Defendants’ adoption of that approach is confirmed by their statements in their Answers to that Complaint.

447.        In their Answers, each Defendant engages in casual, sweeping denials of even the simplest, most obvious facts, without regard to truth or falsehood. As to other allegations, despite the plain requirements of the law, the Defendants simply refuse to answer. The Answers are further evidence of a stubborn litigiousness that existed before the litigation as well as during it.

Damages Amount

448.        Plaintiffs demand judgment in excess of $10,000.[45]

CONCLUSION

449.        The catastrophe that befell Dorothy Crawford — and her husband Clinton, and her daughter Bonita — did not have to happen.

450.        It was easily avoidable.

451.        Avoiding this calamity required only that Piedmont Augusta Hospital make sure before offering an elective surgery that its staff was trained, instructed, and equipped to handle the well-known complications that could kill the patient in minutes.

452.        But they didn’t do it — because they abandoned responsibility for patient safety at the Hospital.

453.        WHEREFORE, Plaintiff demands a trial by jury and judgment against the Defendants as stated above, and such other and further relief as the Court deems just and proper.

July 19, 2024

Respectfully submitted,

/s/ Daniel E. Holloway                     

Georgia Bar No. 658026

DEH Law

717 Abbeyglen Way NW

Kennesaw, GA 30144

404-670-6227

dan@deh-law.com

Jacob Jackson

Georgia Bar No. 290880

Jackson Injury Firm

10 Glenlake Parkway Suite 130

​Atlanta, GA 30328

404-777‑6387

jacob@jacksoninjuryfirm.com

Attorneys for Plaintiff

STATE COURT of RICHMOND COUNTY

STATE of GEORGIA

Clinton Crawford, on his own behalf and as wrongful death plaintiff, and

Estate of Dorothy Crawford, through Bonita Adams, Executor (anticipated),

                        Plaintiffs

— versus —

Piedmont Healthcare, Inc.

Kevin Brown

University Health Services, Inc., doing business as Piedmont Augusta Hospital

James R. Davis

John/Jane Doe 1-10,

                        Defendants

Civil Action

File No. 2024 RCSC 00591

Hon. Robert W. Hunter, III

Jury Trial Demanded

Certificate of Service

The foregoing document has been served on all counsel of record by filing it through the Court’s electronic filing system.

July 19, 2024

/s/ Daniel E. Holloway                     

Georgia Bar No. 658026

[1] Exhibit 8, exhibit page 10.

[2] Exhibit 8, exhibit page 53.

[3] Plaintiffs rely on all averments stated in numbered paragraphs in the main text, but not on statements in footnotes. Plaintiffs stipulate that the Defendants need not respond to footnoted statements. The footnotes are offered largely to avoid unnecessary motion practice by stating the relevant law, some parts of which are less familiar than others.

[4] This complaint provides more than the general notice of claims 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”). The additional detail provides additional notice of the basis of the claims and may narrow disputes.

Plaintiffs do not, however, waive the protections of Georgia’s notice-pleading standard. See Atlanta Women’s Specialists v. Trabue, 310 Ga. 331 (2020) (“[A] complaint need only provide fair notice of what the plaintiff’s claim is and the grounds upon which it rests. … [T]he objective of the CPA is to avoid technicalities and to require only a short and plain statement of the claim that will give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details.”).

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

[5] Plaintiffs stipulate that the Defendants may answer this amended pleading if they wish but are not required to do so unless the Court orders them to. The Defendants’ Answers to the original Complaint state the Defendants’ positions on most of the allegations in this amendment. Therefore, Plaintiffs do not seek an order requiring an answer to this complaint.

[6] See OCGA 9-11-15(a) (“A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.”).

[7] See OCGA 9-3-71(b) (“Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.”).

[8] See OCGA 9-11-15.

[9] For estate claims, the limitations period is tolled upon death, until the administrator or executor is appointed, for up to five years. See OCGA 9-3-92.

[10] OCGA 9-11-9.1 neither requires an expert affidavit to be filed within the limitations period nor otherwise obviates the relation-back provisions of § 9-11-15. Therefore, since the nursing malpractice claim relates back to the original complaint, the nursing malpractice claim is not barred merely because the claim and affidavit are filed after the limitations period expired (as to some claims). See also Jensen v. Engler, 317 Ga. App. 879 (2013) (“Dr. Jensen argues that Engler’s failure to file an expert affidavit along with her original complaint was fatal to her subsequent professional negligence claim. We disagree. … Engler did not raise a medical malpractice claim in her original complaint, thereby obviating the need to file an expert affidavit at that time. Engler subsequently [i.e., after the limitations period expired] filed an expert affidavit with her amended complaint only because she had raised a new claim for medical malpractice, in addition to the ordinary negligence claim, that was based on different factual allegations. Thus, the pleadings do not reflect that Engler’s amended complaint was an improper attempt to cure any original failure to file an expert affidavit or otherwise avoid the contemporaneous filing requirement of OCGA § 9–11–9.1(a). And because Engler filed the required expert affidavit contemporaneously with the filing of her professional negligence claim, she satisfied the requirements of OCGA § 9–11–9.1(a). … Dr. Jensen further contends that Engler’s professional negligence claim was time-barred by the relevant statute of limitation because the new claim was based upon different factual allegations than the original ordinary negligence claim, and therefore did not ‘relate back’ to the date of Engler’s original complaint. Again, we disagree.  … [I]n raising her professional negligence claim for the first time on July 15, 2011, the statute of limitation had already expired. However, pursuant to OCGA § 9–11–15(a), a party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Moreover, whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. … Accordingly, the trial court did not err in denying Dr. Jensen’s motion to dismiss Engler’s professional negligence claim.”).

[11] 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…. (3) In actions for damages because of torts, wrong, or injury done, 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, wrong, or injury done, in the county where the cause of action originated.”

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.

Furthermore, OCGA 9-10-31 provides that, “joint tort-feasors, obligors, or promisors, or joint contractors or copartners, 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.”

[12] 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.

[13] Exhibit 8, exhibit page 69. Unless otherwise noted, all emphasis in quotations is added.

[14] Plaintiffs stipulate that the Defendants are not required to admit or deny the statements in the exhibits.

[15] 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.

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

[17] Exhibit 8, exhibit page 27.

[18] Exhibit 8, exhibit pages 12-13.

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

[20] With the original Complaint, we served copies of Dorothy’s medical records, Bates-stamped with a PAA prefix. The record citations here are to that set of records.

[21] See, e.g., OCGA 14-2-302 (corporations) & 14-3-302 (non-profit corporations).

[22] 42 CFR 482.12(b) (“Standard: Chief executive officer. The governing body must appoint a chief executive officer who is responsible for managing the hospital.”).

[23] See, e.g., OCGA 14-2-302 (corporations) & 14-3-302 (non-profit corporations).

[24] See, e.g., Sarna v. Am. Bosch Magneto Corp., 290 Mass. 340 (1935) (“The defendant is chargeable with the combined knowledge which all its agents acquired within the scope of their authority together with legitimate inferences from all the evidence.”).

[25] See, e.g., OCGA 9-11-8 (“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.”); 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.”).

[26] Section 9.1 lists the professionals it applies to. The statute does not apply to anyone not on the list. See, e.g., Upson County Hospital v. Head, 246 Ga. App. 386 (2000) (“To the extent that the hospital agents or employees are not “professionals,” … the affidavit requirements of OCGA 9-11-9.1 do not apply.”). Even for professionals listed in Section 9.1, the affidavit requirement applies only if professional judgment is involved. See, e.g., Lutz v. Foran, 262 Ga. 819 (1993) (“In malpractice actions, a plaintiff must present expert testimony to establish the parameters of acceptable professional conduct. Not every act that a professional performs, however, is a professional act that requires expert testimony. If the professional’s alleged negligence does not require the exercise of professional judgment and skill, the cause of action is based on a simple negligence theory.”). Just because negligence happened at a hospital doesn’t mean it was professional malpractice. Ordinary negligence can happen in hospitals, too. See, e.g., Lamb v. Candler General Hospital, 262 Ga. 70 (1992) (“[S]imply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a medical malpractice action.”). A claim for medical malpractice does not exclude a separate claim for ordinary negligence. See, e.g. Upson County Hospital v. Head, 246 Ga. App. 386 (2000) (“Clearly, Head’s claim that the hospital is liable for any and all acts of negligence on behalf of its employees and agents can be construed as a claim for both simple negligence and professional negligence.”).

[27] For direct liability of a corporation, it is not necessary that the negligence be embodied in the actions or inaction of any single individual, or that any single individual be personally liable for negligence. The negligence of a corporation may arise from the action or inaction of multiple individuals who each may have been personally non-negligent. See, e.g., Restatement of Agency 3d § 7.03, Comment C (“An organization’s tortious conduct consists of conduct by agents of the organization that is attributable to it. An organization may breach a duty of care that it owes to a third party even though the breach cannot be attributed to any single agent of the organization.”); Overground Atlanta v. Dunn, 191 Ga. App. 188 (1989) (“Where a master is negligent independently of his servants, the master may be held liable even though the servant is not found to be liable.”); Southern Railway v. Garland, 76 Ga. App. 729 (1948) (“if the jury were authorized to find a verdict against the railroad company alone, as is admitted by the railroad, then it certainly follows that they would not have to find negligence on the part of the servants of the railroad company….”).

[28] For vicarious liability, it is not necessary to identify which of a corporation’s many agents was personally negligent.See, e.g., Fitzpatrick v. City of L.A., No. CV 21-6841 JGB (SPx), 2022 US Dist LEXIS 209153 (CD Cal. Nov. 17, 2022) (“The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer’s liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.”); Wulf v. Bravo Brio, 2019 Ohio 3434, 142 NE3d 123 (Ohio App. 2019) (“We have not found any cases requiring that the identity of a negligent employee be identified for respondeat superior to apply. We see no reason why a claim of respondeat superior should be dependent upon the plaintiff establishing the identity of the negligent employee, as long as the plaintiff establishes that the negligent individual was an employee in the course of employment. … The trial court, therefore, erred in requiring that the waitress involved in the incident be specifically identified as a prerequisite to applying the doctrine of respondeat superior.”).

[29] See, e.g., Restatement of Agency 3d § 7.03 (“(1) A principal is subject to direct liability to a third party harmed by an agent’s conduct when (a) as stated in § 7.04, the agent acts with actual authority or the principal ratifies the agent’s conduct and (i) the agent’s conduct is tortious, or (ii) the agent’s conduct, if that of the principal, would subject the principal to tort liability; or (b) as stated in § 7.05, the principal is negligent in selecting, supervising, or otherwise controlling the agent; or (c) as stated in § 7.06, the principal delegates performance of a duty to use care to protect other persons or their property to an agent who fails to perform the duty. (2) A principal is subject to vicarious liability to a third party harmed by an agent’s conduct when: (a) as stated in § 7.07, the agent is an employee who commits a tort while acting within the scope of employment; or (b) as stated in § 7.08, the agent commits a tort when acting with apparent authority in dealing with a third party on or purportedly on behalf of the principal.”).

[30] Note that the first condition (concerning the doctrine of respondeat superior) applies only to employees, a sub-class of agents, whereas the second condition applies to all agents. See Restatement of Agency 3d § 7.03; Restatement of Agency 3d § 7.07 (“(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment. (2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer. (3) For purposes of this section, (a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work, and (b) the fact that work is performed gratuitously does not relieve a principal of liability.”; Restatement of Agency 3d § 7.08 (“A principal is subject to vicarious liability for a tort committed by an agent in dealing or communicating with a third party on or purportedly on behalf of the principal when actions taken by the agent with apparent authority constitute the tort or enable the agent to conceal its commission.”).

[31] For their personal liability, it is irrelevant that Davis and Brown acted on behalf of UHS or PHI in committing their negligence. They remain personally liable for their personal negligence all the same. See, e.g., OCGA 10-6-85 (“Every agent exceeding the scope of his authority shall be individually liable to the person with whom he deals; so, also, for his own tortious act, whether acting by command of his principal or not, he shall be responsible….”); Restatement of Agency 3d § 7.01 (“An agent is subject to liability to a third party harmed by the agent’s tortious conduct. Unless an applicable statute provides otherwise, an actor remains subject to liability although the actor acts as an agent or an employee, with actual or apparent authority, or within the scope of employment.”); Atlantic Coast Line v. Knight, 48 Ga. App. 53 (1933) (servant failing to take reasonable care in performance of act required by contract with master is responsible to third person consequently injured to same extent as if he had performed act in his own behalf).

[32] See, e.g., Restatement of Torts 2d § 324A (“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”).

[33] See, e.g., Restatement of Torts 2d § 314A (“(1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. (2) An innkeeper is under a similar duty to his guests. (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”); Restatement of Torts 2d § 320 (“One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.”); Restatement of Torts 2d § 321 (“(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. (2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.”); Restatement of Torts 2d § 323 (“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.”); Restatement of Torts 2d § 324 (“One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.”).

[34] See, e.g., Restatement of Torts 2d § 299 (“An act may be negligent if it is done without the competence which a reasonable man in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another.”); Restatement of Torts 2d § 299A (“Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.”); Restatement of Torts 2d § 300 (“When an act is negligent if done without reasonable preparation, the actor, to avoid being negligent, is required to make the preparation which a reasonable man in his position would recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.”).

[35] See, e.g., Restatement of Torts 2d § 283 (“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.”).

[36] Failure to ensure the nurses were properly trained, instructed, and equipped is not the sole basis of Plaintiffs’ ordinary negligence claim. Even if the nurses were properly trained, instructed, and equipped, Plaintiffs’ ordinary negligence claim remains, on other bases.

[37] The distinction between direct and vicarious liability carries two practical implications here. First, even if the individual nurses were excused from personal liability for nursing malpractice (due to lack of training, perhaps), UHS would remain directly liable for the malpractice. Second, if the relevant nurses were not employees or agents of UHS, the corporation would remain directly liable for the negligence of those nurses even if UHS would not be vicariously liable under the doctrine of respondeat superior as modified by OCGA 51-2-5.1.

[38] See, e.g., Restatement of Agency 3d § 7.03(1)(c).

[39] In medical malpractice cases, OCGA 51-2-5.1 alters the traditional doctrine of respondeat superior. The statute applies respondeat superior to any agent as to whom a hospital reserves the right to control the time or manner ormethod of work — except that a clear characterization in a contract is binding. By (slight) contrast, the traditional doctrine (as expressed in the Restatement) applies respondeat superior to “employees” defined as “an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.” See Restatement of Agency 3d § 7.07.

[40] As to agency, OCGA 51-2-5.1(f) provides, “Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospital’s employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.”

[41] Under Georgia law, wrongful death damages consist of the full value of the life of the decedent, from her own perspective. Bibbs v. Toyota, 304 Ga. 68 (2018) (“[U]nder Georgia’s wrongful death statute, damages are measured from the decedent’s point of view. The measure of damages is not a surviving son’s loss from his deceased mother’s absence, but the mother’s loss from not being able to raise her son.”) (quoting Brock v. Wedincamp, 253 Ga. App. 275 (2002)).

[42] “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA 51-12-5.1(b).

[43] “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

[44] For the relevant law, see Kroger v. Walters, 319 Ga. App. 52 (2012) (“Walters claimed that Kroger was stubbornly litigious and caused unnecessary trouble and expense, which requires showing that there exists no bona fide controversy or dispute regarding liability for the underlying cause of action.”).

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