Complaint: Crosby v. Phoebe Putney, et al
STATE COURT of DOUGHERTY COUNTY
STATE of GEORGIA
Vickie Lynn Crosby,
Plaintiff
— versus —
Phoebe Putney Memorial Hospital, Inc.
Phoebe Worth Medical Center, Inc.
Phoebe Physician Group, Inc.
John/Jane Doe 1-10,
Defendants
Civil Action
File No. _________
Hon. ___________
COMPLAINT
PREFATORY NOTES
These prefatory notes are not part of the averments on which Plaintiffs rely. Defendants need not respond to these prefatory notes.
Notice Pleading
This complaint provides far 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 assists the defendants by providing additional notice of the basis of the claims and making it easier to prepare their defense. If the defendants respond to the complaint in good faith, the pleadings will narrow the disputes, reduce the need for discovery, and save time and money for all parties — consistent with the mandate of Section 1 of the CPA (“This chapter shall be construed to secure the just, speedy, and inexpensive determination of every action.”).
Plaintiffs do not, however, waive the protections of Georgia’s notice-pleading standard. See Atlanta Women’s Specialists v. Trabue, 310 Ga. 331 (2020) (“[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.
Footnotes & Images
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.
Images in the main body of the complaint are offered to assist in understanding the averments but are not part of the averments. Plaintiffs do not rely on the images, and the Defendants need not respond to the images.
Basis of Allegations
The allegations in this complaint are based on personal knowledge to the extent they concern events Plaintiff witnessed. Otherwise, the allegations are based on medical records, publicly available information, consultation with experts, and inferences therefrom.
Plaintiffs’ claims and allegations may change as Plaintiffs or their counsel discover additional information.
The Defendants’ Duty to Respond in Good Faith
Because the following elementary principles are not universally observed, we recite them here in hope of avoiding unnecessary disputes.
A. Georgia law requires defendants to respond to the complaint in good faith, after diligent inquiry.
OCGA 9-11-8 speaks throughout of fairness, good faith, and truth.
Our Court of Appeals emphasizes the importance of diligent inquiry in responding: “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.” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681 (1970).
B. Georgia’s Civil Practice Act requires & permits one of three responses to an averment: an admission, a denial, or a claim of ignorance.
See OCGA 9-11-8. See also, e.g., FDIC v. Stovall, No. 2:14-cv-00029-WCO, 2014 US Dist LEXIS 183100 (ND Ga Oct. 2, 2014) (“There are only three appropriate responses to a pleading: an admission, a denial, or a statement that the party lacks knowledge or information sufficient to form a belief about the truth of the allegation.”
C. Evasive or equivocal responses are ineffective as denials and therefore count as admissions.
See OCGA 9-11-8(d): “Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” But “If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state, and this has the effect of a denial.”
Universal Underwriters v. Albert, 248 Ga. App. 415 (2001): “It is impossible to discern from this answer whether Albert admitted Universal’s allegations, whether she denied Universal’s allegations, or whether she was without sufficient knowledge to admit or deny the allegations. Because Albert failed to deny Universal’s allegations that she converted the vehicle and that it was damaged while in her possession, the trial court should have accepted them as true….”
Moore’s Federal Practice § 8.07. Failure to Deny Averments in Pleadings: “An equivocal or otherwise improper denial will be deemed an admission.”
Wright & Miller, Federal Practice & Procedure, § 1261 Denials — In General: “If an answer is not sufficiently definite in nature to give reasonable notice of the allegations in the complaint sought to be placed in issue, the opponent’s averments may be treated as admitted.”
FDIC v. Stovall, 2014 US Dist LEXIS 183100 (ND Ga Oct. 2, 2014): “Stating that a document ‘speaks for itself’ is nonsensical and completely contrary to the Federal Rules of Civil Procedure. A response that fails to answer an allegation because the allegation ‘states a legal conclusion’ or because the document ‘speaks for itself’ is impermissible under the plain language of Rule 8(b). … The practical implication of these pseudo-responses is that a party must request much broader discovery because the opposing party did not really admit anything. Not only does this needlessly increase the costs of litigation—something that this court strives to avoid—but the discovery process may devolve into a battle royale of broad requests against worthless responses.”
D. When an averment is partially true, the defendant must admit that part, even if the defendant denies or claims ignorance of the rest.
See OCGA 9-11-8(b): “Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.”
E. A claim of ignorance requires lack of information sufficient TO FORM A BELIEF — not merely a lack of first-hand knowledge or a lack of certainty.
OCGA 9-11-8(b): “A party … shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information SUFFICIENT TO FORM A BELIEF as to the truth of an averment, he shall so state, and this has the effect of a denial.”
Consolidated Pecan v. Savannah Bank & Trust, 122 Ga. App. 536 (1970): “[U]nder the Civil Practice Act, in order to take advantage of lack of information and knowledge, the defendant must allege that he is without knowledge or information sufficient to form a belief as to the truth of an averment. That he may not have sufficient information to permit him to make an express denial or an express admission is no longer the requirement. He must now allege that he lacks knowledge or information sufficient for him to form a belief as to the truth of an averment rather than be absolutely certain thereof.”
F. A corporate entity “knows” what its officers, employees, and other agents know.
See Georgia Commercial Stores v. Forsman, 342 Ga. App. 542 (2017): “A company is chargeable with the composite knowledge acquired by its officers and agents acting within the scope of their duties.”
———
We have taken pains to give you a detailed understanding of Plaintiffs’ case. For the sake of “securing the just, speedy, and inexpensive determination of [this] action,” please respond to each averment of the complaint honestly, after a reasonable effort to determine whether the averment is true. Please do not respond with evasions (e.g., “the records speak for themselves”). Please do not claim ignorance on the ground that you’re a corporation, not a person, and therefore don’t know anything. Please do not claim ignorance on the ground that you think an averment is true but don’t know for sure. Please do not deny an averment entirely if you think it is partially true. In short, please follow the rules and respond in good faith.
— AVERMENTS OF THE COMPLAINT —
INTRODUCTION
Nature of the Case
1. This case arises out of negligent administration of Phoebe Putney Memorial Hospital (“Putney”), a hospital located at 417 Third Avenue, Albany, Georgia 31701 and Phoebe Worth Medical Center (“Phoebe Worth”), a hospital located at 807 S. Isabella Street Sylvester, GA 31791.
2. Negligent administration contributed to professional malpractice.
3. Pursuant to OCGA 9-11-9.1(b), Plaintiffs attach the Affidavit of Jonathan M. Schwartz, MD MBA as Exhibit 10.
Prelude
4. Nearly 25 years ago, the National Institute of Medicine published To Err is Human: Building a Safer Health System. The Institute wrote, “More people die in a given year as a result of medical errors than from motor vehicle accidents (43,458), breast cancer (42,297), or AIDS (16,516). The Institute wrote that, “Chief executive officers and boards of trustees must make a serious and ongoing commitment to creating safe systems of care.”[1]
5. Failures of communication are one of the most common causes of errors that hurt patients.
6. Hospital companies must put systems in place to make sure critical information gets to the people who need it, in a timely way.
7. Vickie Crosby went to the Emergency Department after a painful fall. The physician discharged her a few hours later, concluding Vickie had no bone fractures. A few hours after the discharge, a radiologist reported that Vickie had four broken toes and a broken femoral neck (a section toward the top of the thigh-bone). For nearly a month, no one from the hospital told Vickie or her primary care provider. By the time Vickie was treated, her condition had worsened, and her ability to walk was permanently impaired.
The Case in a Nutshell
8. At the Emergency Department, Vickie reported that she had fallen a few days earlier and had severe pain in her right leg.
9. Leg and foot injuries from falls are common, well understood, and generally treatable.
10. The ED physician ordered X-rays. After the X-rays were performed, the physician concluded they showed no fractures. He discharged Vickie.
11. A few hours later, a radiologist read Vickie’s X-rays and issued written reports saying Vickie had “mildly displaced and impacted fractures” of four toes on her right foot, and an “impacted fracture of the right femoral neck” with no displacement of the hip.
12. The femoral neck is a critical anatomical structure. It connects the head of the thigh bone to the shaft of the thigh bone, and is part of what connects the leg to the hip.
13. Prompt diagnosis and treatment of femoral neck fractures is crucial to prevent complications and preserve hip function.
14. With prompt diagnosis and treatment of a non-displaced femoral neck fracture (like Vickie’s), in-situ pinning is the most common treatment. This involves passing surgical pins or screws across the fracture site to hold the femoral head in place while the fracture heals. This procedure can often be done with minimally invasive surgery.
15. Delaying treatment of a femoral neck fracture could lead to serious complications and long-term harm.
16. When the X-ray reports showed that Vickie had fractures, it was important for her safety that the information be communicated to her and/or her primary care provider and that an orthopedic surgery consultation be arranged promptly.
17. It would be simple to do that: A few minutes to make a couple phone calls.
18. It is well-known within the healthcare industry that failures of communication happen, that they hurt patients, and that they happen for a variety of predictable reasons — for example, lack of clear lines of responsibility, or confusion about who is responsible for communicating something.
19. Hospital companies must make sure they have systems in place to prevent failures of communication.
20. In this case, the Hospital companies did not do that.
21. On October 6 and the following days, no one told Vickie that she had fractures in her toes or her thigh-bone. No one told Vickie’s primary care provider.
22. It was not until November 2 — nearly a month later — that Vickie learned of the fractures. Vickie went to her primary care provider for other reasons, and her physician saw the records, realized Vickie had fractures, and sent her to the Emergency Department for follow-up X-rays.
23. Vickie went to the ED at 1640 hrs in the afternoon. She reported constant leg pain at a level of 10.
24. Nearly an hour later, at 1739 hrs, a nurse practitioner saw Vickie.
25. The nurse practitioner wrote that it was “Undetermined if pt has [emergency medical condition], further testing/eval needed.”
26. Nearly four hours later, someone ordered new X-rays of Vickie’s foot and femur.
27. Around 2250 hrs — more than 6 hours after Vickie arrived at the ED — hospital staff wrote that Vickie had “eloped” from the hospital “before being seen.” That is, six hours after arriving at the hospital in severe pain, Vickie had not been seen by a physician. That was November 2.
28. Nine days later, at the urging of her daughter who lived out of state, an ambulance brought Vickie to the ED again.
29. By this time, Vickie had been essentially immobile in bed with pain, for days. She had acquired a urinary tract infection as a result of being stuck in bed for days. The infection had produced delirium.
30. By then, a small operation to repair the fractured femoral neck was not adequate. Vickie needed a hemiarthroplasty — in which the surgeon opens up the hip area, removes the broken top part of the thighbone (the “ball” part of the ball-and-socket joint), and inserts a metal implant into the thighbone. This implant has a stem that goes down into the bone and a new “ball” on top.
31. Over a month earlier, on October 6 or the days after, if someone had explained to Vickie and/or her primary care provider that Vickie had fractures that required prompt treatment — and that delay could cause permanent harm — treatment would have been arranged promptly and Vickie would have suffered no serious long-term harm from the fractures.
32. After the hip surgery, Vickie suffered additional complications. Today, she walks with a walker.
DEFENDANTS, JURISDICTION & VENUE[2]
Phoebe Putney Memorial Hospital, Inc. (“Putney”)
33. Phoebe Putney Memorial Hospital, Inc. (“Putney”) operates a 691-bed teaching hospital at 417 Third Avenue, Albany, GA 31701.
34. Putney is a subsidiary of Phoebe Putney Health System, Inc.
35. Putney operates the hospital where Vickie Crosby was seen in the ED on November 2, 2022.
36. Putney may be served through its Registered Agent, Dawn G. Benson 417 Third Avenue, Albany, GA, 31701.
37. Putney claims that its principal office address is 417 West Third Avenue, Albany, GA, 31701, in Dougherty County.
38. Putney is subject to the personal jurisdiction of this Court.
39. Putney is subject to the subject-matter jurisdiction of this Court in this case.
40. Pursuant to OCGA 14-3-510(b)(3), Putney is directly subject to venue in this county because it maintains its registered office in this county.
41. Putney has been properly and timely served with this Complaint.
42. Putney 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.
Phoebe Worth Medical Center, Inc. (“Phoebe Worth”)
43. Phoebe Worth Medical Center, Inc. (“Phoebe Worth”) operates a 25-bed critical access hospital doing business as “Phoebe Worth” or “Phoebe Worth Medical Center” at 807 S. Isabella Street, Sylvester, GA 31791.
44. Phoebe Worth is a subsidiary of Phoebe Putney Health System, Inc.
45. Phoebe Worth operates the hospital where Vickie Crosby was seen in the ED on October 5, 2022.
46. Phoebe Worth may be served through its Registered Agent, Kim Gilman at 807 South Isabella Street, Sylvester, GA 31791 in Worth County.
47. Phoebe Worth claims that its principal office address is 807 S Isabella St, Sylvester, GA, 31791-7554, Worth County.
48. Phoebe Worth is subject to the personal jurisdiction of this Court.
49. Phoebe Worth is subject to the subject-matter jurisdiction of this Court in this case.
50. Pursuant to OCGA 9-10-31(b), Phoebe Worth is subject to venue in this county because one of its tortfeasors is directly subject to venue in this county.
51. Phoebe Worth has been properly and timely served with this Complaint.
52. Phoebe Worth 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.
Phoebe Physician Group, Inc. (“PPG”)[3]
53. Phoebe Physician Group, Inc. (“PPG”) employed the individual defendants in October and November 2022.
54. PPG is a subsidiary of Phoebe Putney Health System, Inc.
55. PPG may be served through its Registered Agent, Marie Simmons, at 1390 US Highway 19 South, Leesburg, GA, 31763, in Lee County.
56. PPG claims that its principal office address is 1390 US Highway 19 South, Leesburg, GA, 31763, in Lee County.
57. PPG is subject to the personal jurisdiction of this Court.
58. PPG is subject to the subject-matter jurisdiction of this Court in this case.
59. Pursuant to OCGA 14-3-510(b)(3), PPG is directly subject to venue in this county because it maintains its registered office in this county.
60. PPG has been properly and timely served with this Complaint.
61. PPG 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 Management/Administration[4]
Overview
62. 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.
63. 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.
64. 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.[5]
65. That passage expresses the consensus in the healthcare community.
66. Plaintiffs attach and incorporate into this complaint the following exhibits, which explain the scale of harm from medical error and the role of healthcare administrators in patient safety.[6]
Exhibit 1: Affidavit of Jonathan Burroughs, MD
Exhibit 2: Excerpt from the Joint Commission Comprehensive Accreditation Manual for Hospitals (effective Jan. 1, 2022), regarding hospital leadership
Exhibit 3: Excerpt from Understanding Patient Safety, 3d Ed. By Robert Wachter and Kiran Gupta
Exhibit 4: Sentinel Event Alert: “The essential role of leadership in developing a safety culture.”
Exhibit 5: National Institute of Medicine, To Err is Human: Building a Safer Health System (excerpts).
Exhibit 6: Piedmont Healthcare Inc., “Time out for safety.”
Exhibit 7: Phoebe Putney Health System, “Safety First.”
Exhibit 8: “The Scale of Harm From Medical Error: Summary of Studies, 2000-2022.”
Exhibit 9: HHS, Office of Inspector General, “Adverse Events in Hospitals: A Quarter of Medicare Patients Experienced Harm in October 2018.”
The Healthcare Business
67. 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.
68. Non-profit as well as for-profit corporations provide healthcare services in exchange for money.
69. 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.
70. Healthcare corporations — non-profit as well as for-profit — typically market their services to the public.
71. Healthcare corporations typically invite the public to come to the corporations’ facilities for services, many of which could be provided at other facilities.
72. Healthcare corporations typically compete with each other both for patients and for affiliations with physicians and other healthcare providers.
73. Healthcare corporations often compete by advertising the quality and safety of their services.
74. For their part, individual healthcare providers generally are paid well compared to other US workers. For example, physicians consistently rank among the highest-paid professionals in the United States, and nurses generally earn above-average salaries compared to other workers with similar education levels.
Scale of Harm from Medical Error
75. It is well known within the healthcare industry that the scale of harm from medical error is large. This knowledge informs the duties of healthcare managers/administrators to work actively to prevent medical error.
76. 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.
77. 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.[7]
78. By comparison, in the year 2022, commercial airline crashes worldwide accounted for approximately 19 deaths.
Flawed Systems as a Cause of Medical Error
79. The causes of medical error have been studied extensively, and there is a large literature on medical error and patient safety.
80. 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.
81. 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.
82. 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.”[8]
83. According to Phoebe Putney Health System, “Hospitals are highly complex systems that care for humans and are staffed with humans. In order to correctly perform their intended functions, humans in a complex system need to be armed with skills and behaviors that reduce the chance of error. Safety management systems support reduced probability of error by improving safety culture.”[9]
84. 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
85. The complexity of healthcare and the danger of inadequate processes and organizational cultures creates a need for good management of healthcare facilities.
86. 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.
87. 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.
88. 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.
89. 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
90. Many healthcare managers/administrators are not licensed healthcare professionals.
91. 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.
92. Healthcare corporations and their managers play a critical role in protecting patients from medical error.
93. Healthcare corporations and their managers must work diligently to protect patients from medical error.
94. 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.
95. 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.
96. Healthcare corporations must create an administrative structure dedicated to patient safety.
97. 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.
98. Healthcare corporations must create and maintain systems and processes that guard against medical error.
99. 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.
100. Administrators are responsible for making sure policies and protocols are communicated effectively to healthcare system staff.
101. Administrators are responsible for making sure training needs are identified and that the necessary training is given.
102. 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
103. 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.
104. 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.
105. In their duties concerning patient safety, negligence by healthcare corporations and their administrators promotes medical error and contributes to patient harm.
106. 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.
107. 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.”[10]
108. 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.
109. 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.”[11]
Medical Professionalism
Responsibility for Medical Errors
110. In providing healthcare, bad outcomes can happen even if the care is perfect.
111. However, there are standards that apply to healthcare, and sometimes providers fail to live up to those standards.
112. We can’t criticize anyone based only on hindsight: We have to consider what they knew or should have known at the time.
113. Even good people and good healthcare providers can be and sometimes are negligent.
114. Healthcare ethics require that when medical negligence happens, the providers responsible for it should own up to it.
115. Owning up to negligence is important because it helps to identify mistakes so they don’t happen again.
116. When medical negligence happens, the providers responsible for it should disclose it to the patient or family.
117. When medical negligence may have happened and caused serious harm, the healthcare facility should investigate.
Unconscious Bias
118. Multiple studies have found that women, racial minorities, lower-income people, and other disadvantaged groups often receive worse healthcare than others.
Vulnerability, Trust, Caring, & Diligence
119. When a sick or injured patient comes to healthcare providers, there is — or at least should be — a trust between the patient and the providers.
120. The patient puts their health and safety in the hands of the healthcare providers.
121. The healthcare providers make a commitment to take good care of the patient.
122. The healthcare providers make a commitment to do their jobs properly.
123. Doing the job properly starts with caring about the patient.
124. A healthcare provider’s job can be hard, so it can be tempting to cut corners or take shortcuts in patient care. But if a healthcare provider takes shortcuts often enough, it’s just a matter of time before someone gets hurt.
Paying Attention & Speaking Up
125. For healthcare providers, doing the job right includes simply paying attention to the patient.
126. It can be easier to breeze in and out of the patient’s room without really paying attention.
127. Providers must pay attention to anything that might indicate a problem with the patient.
128. Providers must make sure the potential problem gets investigated.
129. Each member of the team is responsible for speaking up if there’s a warning sign that a problem has developed.
130. Each member of the healthcare team is responsible for speaking up if there’s a concern that the patient is not being taken care of properly.
Safety Over Danger
131. Healthcare providers must not unnecessarily expose a patient to serious danger.
132. When a patient already faces serious danger, healthcare providers must not leave the patient exposed to it unnecessarily.
133. Healthcare providers must err on the side of greater caution, diligence, and safety for the patient.
134. Healthcare providers must never err on the side of greater danger for the patient.
All Reasonably Available Measures, Done Timely
135. If a patient is in danger of a potentially catastrophic condition, healthcare providers must take all reasonably available steps to prevent it.
136. If a potentially catastrophic condition has already begun, healthcare providers must take all reasonably available steps to prevent further harm.
137. Healthcare providers must make all reasonable efforts to act in a timely fashion.
138. If a patient faces a potentially catastrophic condition that is time-sensitive, healthcare providers must do all they reasonably can to address it promptly.
Respect for the Patient; Educating the Patient
139. Healthcare providers must respect the dignity and independence of the patient.
140. When circumstances allow it, providers must educate the patient or family about the dangers they face and the options they have.
141. Healthcare providers must make decisions about patient care based on what’s best for the patient’s well-being.
142. Healthcare providers must balance the danger from taking a reasonably available measure against the danger of not taking it.
143. Patients who have been educated on their risks and options are better able to protect themselves.
144. Patients who have been educated on their condition are better able to know if they should seek medical attention.
145. Patients who have been educated on their condition are better able to know if they should seek a second opinion.
Teamwork
146. In most healthcare settings, there’s a team of people responsible for caring for a patient.
147. Each member of the healthcare team shares responsibility for the patient.
148. For each member of the team, a crucial part of the job is to communicate with other team members.
149. It is essential to make sure important information gets to the people who can do something about it.
The Critical Role of Nurses
150. Nurses typically spend more time with the patient than the physicians do.
151. Nurses serve as “eyes and ears” of physicians.
152. Nurses serve as advocates for the patient.
153. If nurses have concerns about the care a patient is receiving, they must raise those concerns until the concerns are addressed properly.
Fractures of the Femoral Neck
Anatomy
154. The femoral neck is a crucial part of the thigh bone (femur) that connects two important structures: The rounded head of the femur, which fits into the hip socket, and the main shaft of the femur, which extends down to the knee.
Danger from Fracture
155. The femoral neck is a common site for fractures, especially in older adults with osteoporosis.
156. Injuries to the femoral neck can lead to serious complications.
157. A femoral neck fracture in elderly patients is a serious and potentially life-threatening condition.
Displaced vs. Non-Displaced Fractures
158. Fractures may be displaced or non-displaced.
159. In non-displaced fractures, the bone cracks but maintains its proper alignment. The broken ends of the bone remain in their normal position. Non-displaced fractures often require less invasive treatment.
160. In displaced fractures, the bone breaks and the fragments move out of alignment. There’s a visible gap or misalignment at the fracture site. Displaced fractures often require more complex treatment.
161. Femoral neck fractures are often classified according to the “Garden” classification system, as follows:
Garden I: Incomplete or impacted fracture. The fracture line doesn’t extend through the entire neck.
Garden II: Complete fracture without displacement. The fracture extends through the entire neck. The fragments remain in anatomical alignment.
Garden III: Complete fracture with partial displacement. The femoral head fragment is partially displaced.
Garden IV: Complete fracture with full displacement. The femoral head and neck fragments are completely separated, with no contact between the main fragments.
162. Non-displaced fractures generally have lower mortality rates compared to displaced fractures.
163. Non-displaced fractures typically have better functional outcomes:
164. Displaced fractures are associated with worse functional outcomes and higher rates of disability.
165. Patients with non-displaced fractures are more likely to regain pre-fracture mobility levels.
166. For displaced fractures, even with proper treatment, there’s often a significant decline in mobility and independence.
167. Non-displaced fractures generally result in better long-term quality of life outcomes compared to displaced fractures.
168. Non-displaced fractures have lower rates of complications such as nonunion and implant failure compared to displaced fractures.
Treatment for Non-Displaced and Displaced Fractures
169. Non-displaced fractures typically are treated with internal fixation — keeping the patient’s natural bones but fixing them in place with screws or other hardware.
170. Displaced fractures typically are treated with arthroplasty.
171. Arthroplasty involves replacing the femoral head (and sometimes other bones) with prosthetic components.
172. Internal fixation is generally less invasive, involving smaller incisions and less tissue disruption.
173. Internal fixation with screws can sometimes be done percutaneously, using small incisions rather than a large open approach. This is considered a minimally invasive technique.
174. Arthroplasty is more invasive, requiring larger incisions and more extensive tissue dissection.
Danger from Delay
175. Generally, the less severe the fracture before treatment, the less dangerous it is, the easier it is to treat, and the better the long-term outcomes.
176. Prompt evaluation and treatment of a femoral neck fracture is important.
177. Untreated fractures can worsen over time.
178. Initially nondisplaced fractures (Garden I or II) can become displaced if not properly treated.
179. Displaced fractures are more dangerous, more challenging to treat, and tend to cause worse long-term problems even after treatment.
180. Prompt treatment of femoral neck fractures is essential for preserving function and independence.
181. Delayed treatment of a femoral neck fracture is associated with higher mortality rates, especially in elderly patients.
182. Delayed treatment can lead to prolonged immobility, increasing the risk of complications such as deep vein thrombosis, pressure ulcers, and respiratory infections.
183. Timely treatment of a femoral neck fracture is crucial for pain control and maintaining quality of life.
184. Untreated femoral neck fractures can lead to chronic pain and inflammation of the hip joint.
185. Prolonged pain and immobility can result in social isolation, anxiety, and depression.
186. Delayed treatment of a femoral neck fracture creates an increased risk of deep vein thrombosis and pulmonary embolism due to immobility.
187. Delayed treatment of a femoral neck fracture creates an increased risk of developing pressure wounds.
188. Delayed treatment of a femoral neck fracture creates an increased risk of infections, particularly urinary tract and respiratory infections because of prolonged immobilization.
189. Delayed treatment of a femoral neck fracture creates an increased risk of delirium as a result of infection.
190. Delayed treatment of a femoral neck fracture creates an increased risk of muscle atrophy and deconditioning of the affected limb, which can have lasting long-term effects.
191. The worse the patient’s condition becomes before treatment, the poorer their long-term outcome tends to be.
192. Especially if not treated promptly, the overall impact from a femoral neck fracture on an elderly person’s quality of life can be profound: Reduced mobility often leads to a loss of independence, social isolation and decreased participation in activities. Reduced mobility often leads to weakness and balance problems, which increases the risk of more falls and fractures. Fear of falling may cause anxiety and further limit physical activity. The loss of independence can lead to depression and cognitive decline.
193. If a 68-year-old has an impacted, non-displaced femoral neck fracture suitable for internal fixation, but the fracture is left untreated for 5 weeks, and in that time it becomes displaced so that hemiarthroplasty is required, then the delay creates increased danger of poor functional outcomes, including the need for a walker long-term.
Phoebe’s Marketing, Resources, & Administrative Failures
194. Putney, Phoebe Worth, and PPG are all part of the Phoebe Putney Health System (the “System”) — subsidiaries of Phoebe Putney Health System, Inc. — and have access to assistance and resources from across the System.
195. The System markets itself in part by advertising its commitment to patient safety.
196. The System is well-resourced and able to implement proper patient safety processes.
197. In its 2021 tax returns, Phoebe Putney Health System, Inc. reported total assets of over $642 million, and revenue less expenses of over $40 million.
198. Nonetheless, in the months and years before October 5, 2022, the System — including Putney, Phoebe Worth, and PPG — failed to create and maintain proper patient-safety processes.
The Neglect of Vickie Crosby[12]
199. No one warned Vickie Crosby about the lack of proper patient safety processes at Phoebe Worth and Putney.
Wednesday, October 5 & 6, 2022
200. On Wednesday, October 5, 2022, Vickie Crosby went to the Phoebe Worth Emergency Department. She arrived at 2015 hrs. (PPA 1.)
201. About 45 minutes later, Vickie was seen by Dr. Johnathan Gaskins. (PPA 5.)
202. Dr. Gaskins noted that Vickie reported having fallen a few days earlier, but that Vickie was “somewhat confused.” (PPA 5.)
203. Dr. Gaskins noted that Vickie’s husband was present but had memory problems of his own after a recent head-on car crash. (PPA 5.)
204. Vickie reported severe pain in her right leg. (PPA 5.)
205. At about 2105 hrs, Dr. Gaskins ordered various CT and X-ray exams, including X-rays of Vickie’s right foot and femur. (PPA 10.)
206. Around 2145 hrs, a radiologist reported on CT scans of Vickie’s brain and cervical spine — finding no acute injuries. (PPA 76, 78).
207. About 40 minutes later, around 2220 hrs, Dr. Gaskins discharged Vickie home. (PPA 10.)
208. By that time, Dr. Gaskins had personally reviewed the X-rays of Vickie’s foot and femur. Dr. Gaskins saw no fractures. (PPA 8.)
209. Dr. Gaskins discharged Vickie with a diagnosis of contusions of her right hip and foot. (PPA 10.)
210. A few hours after Dr. Gaskins discharged Vickie, the radiologist issued reports of the foot and femur X-rays.
211. At 0303 hrs in the morning of October 6, the radiologist issued a report of the foot X-ray, noting “mildly displaced and impacted fractures of the second through metatarsal necks.” (PPA 81.)
212. At 0426 hrs, the radiologist issued a report of the femur X-ray, noting an “impacted fracture of the right femoral neck” with “no dislocation of the hip.” (PPA 80.)
213. It was important for Vickie’s safety that the findings of the fractures be communicated to her, to her primary care provider, that a prompt consult be arranged with an orthopedic surgeon, and that she be admitted to the hospital to protect her against further injury.
214. No one at Phoebe Worth — not a physician, not a nurse, no one else — communicated the findings of the fractures to Vickie or to her primary care provider.
215. No one at Phoebe Worth took any action to arrange a consult for Vickie with an orthopedic surgeon.
216. No one at Phoebe Worth took any action to ensure that Vickie be admitted to the hospital to protect her against further injury.
Wednesday, November 2, 2022
217. Nearly a month passed, and still no one at Phoebe Worth took any action to ensure Vickie’s fractures were assessed and treated.
218. On November 2 at about 1620 hrs, Vickie went to see her primary care provider, Dr. Doris Wilder. (SMA 1.)
219. Dr. Wilder reviewed records including from Vickie’s October 5 visit to Phoebe Worth. (SMA 1.)
220. Dr. Wilder recognized the significance of the fractures, instructed Vickie to go to the Emergency Department — at Putney this time, not Phoebe Worth — and offered to arrange an ambulance. (SMA 1.)
221. Vickie had her husband drive her to Putney, because an ambulance would be too expensive. (SMA 1.)
222. Dr. Wilder called the Putney ED to let them know Vickie was coming. (SMA 1.)
223. Around 1640 hrs,Vickie arrived at the Putney ED, shortly after leaving Dr. Wilder’s office. (PPA 94.)
224. On arrival Vickie was triaged. She reported that constant pain in her leg at a level of 10/10 and said Dr. Wilder had told her to come to the ED. (PPA 108.)
225. Nearly an hour after arrival (about 1740 hrs), Vickie was seen by Nurse Practitioner Beverly Willis. (PPA 101.)
226. NP Willis noted that the October X-rays showed a femoral neck fracture and noted that Vickie reported ongoing pain, but wrote, “Undetermined if pt has EMC, further testing/eval needed.” (PPA 101.)
227. NP Willis should have understood that Vickie had an emergency medical condition, that she needed to be admitted, and that she needed a prompt consult by an orthopedic surgeon to evaluate the fracture and make a treatment plan.
228. Around 2128 hrs — nearly four hours after NP Willis assessed Vickie and nearly five hours after arriving at the Putney ED, NP Willis ordered an X-ray of Vickie’s femur. (PPA 103.)
229. An hour later, Vickie still had not been seen by a physician, and NP Willis still had not recognized any urgency about Vickie’s femoral neck fracture. Vickie left the hospital. The hospital records said Vickie “eloped,” that she “left without being seen.” (PPA 104.)
230. At 0408 hrs, a radiologist reported on the repeat X-ray of Vickie’s femur, noting “Impacted fracture right femoral neck redemonstrated. No dislocation.” (PPA 126.)
231. Again, as at Phoebe Worth, no one at Putney— not a physician, not a nurse, no one else — took any action to inform Vickie, her primary care provider, or to arrange an admission or orthopedic surgery consult for Vickie.
Friday, November 11, 2022
232. Between November 2 and 11, something happened. On the 11th, Vickie’s daughter got Vickie’s husband to call an ambulance because Vickie sounded disturbingly altered on the phone.
233. An ambulance responded. The ambulance providers reported as follows:
“ED 3 responded emergently to 311 James Young Rd for a 68 yo f with altered mental status. Upon arrival unit was met outside by husband who was not a good historian and could not describe wife’s illness except that she had been altered for 3 days and had not gotten out of bed for approximately 2 weeks.
“Pt was found lying naked under a small blanket in the bed. Pt was alert but not oriented. Pt was unable to describe her illness. Pt’s skin was hot to the touch and pt noted a strong odor when she urinated. Personnel noted an overwhelming smell of ammonia throughtout the home. Pt had good radial pulses. ALS assessment was performed with v/s obtained. Pt was rolled onto a blanket and carried outside to stretcher. Blanket was noted to be wet upon placing pt on stretcher. Pt was secured and wheeled into unit.”
(WCA 1.)
The Damage Done
234. Because of the delay in assessment and treatment, Vickie’s fracture had become displaced, and she had acquired a urinary tract infection and become delirious.
235. Because of the delay, internal fixation was no longer sufficient to treat the femoral neck fracture. Instead, Vickie needed a hemiarthroplasty.
236. That surgery led to a variety of complications and a lengthy hospital stay.
237. If the surgery had been treated shortly after being identified on October 6 — as an impacted, non-displaced fracture — Vickie would have recovered fully and been able to walk essentially normally on recovering from the surgery.
238. Now instead, Vickie walks with a walker, and likely always will. And Vickie is at greater risk of future falls, increasingly diminished mobility, and the variety of resulting harms.
The Defendants’ Response
239. It was obvious that the Phoebe System and several of their providers had failed Vickie and caused her significant harm.
240. Nevertheless, no one in the Phoebe System acknowledged the errors or harm to Vickie or her family.
“Emergency Medical Care”
241. The care provided to Vickie Crosby does not meet the following definition of “Emergency Medical Care”:
“Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.
242. Vickie did not have “a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of IMMEDIATE medical attention could reasonably be EXPECTED to result in placing the patient’s health in SERIOUS JEOPARDY, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”
243. The definition of “Emergency Medical Care” stated above includes multiple factual requirements. One of those requirements has to do with the likely consequences to the patient if medical attention is not given immediately.
Severity vs. Urgency
244. Healthcare providers distinguish among patients based on both severity and urgency.
245. The severity of a condition is not necessarily related to urgency. A condition can be potentially catastrophic but not time-sensitive. A condition can be highly time-sensitive without posing a great danger to the patient.
246. For example, many forms of cancer can be fatal. But cancer rarely requires emergency treatment. Generally, cancer grows slowly, and once the cancer is detected, the treatment window is measured in days or longer — not hours, and certainly not minutes.
247. It is erroneous to confuse the severity of a condition with its urgency.
Degrees of Urgency
248. Urgency or time-sensitivity exists on a continuum. There are degrees of urgency.
249. “Immediate” need is the highest, most extreme degree of urgency.
250. “Not time-sensitive at all” would be the lowest degree of urgency (or non-urgency).
251. Most emergency department patients are somewhere in between those two extremes.
252. Emergency departments get patients with widely varying degrees of “emergencies.” At the low end, they get patients who use the ED essentially as a substitute for primary care. At the high end, they get patients with ultra-extreme emergencies. The vast majority of patients are somewhere in between.
253. A small percentage of ED patients are likely to suffer serious harm if immediate medical attention is delayed by even a few minutes. For example: a patient with a gunshot wound to the chest, a patient who has completely lost her airway and cannot breathe, a patient with a severed femoral artery, a patient whose heart has stopped pumping, and so on. For these patients, a delay of even one minute is likely to cause serious harm. Indeed, if a patient goes into cardiac arrest, in most contexts it would be extreme negligence, if not willful misconduct, for a nurse or physician to intentionally wait even 60 seconds before calling for help and taking action.
254. Such ultra-extreme emergencies occur with only a small percentage of ED patients.
255. Most ED patients do not need, and do not receive, immediate medical attention.
256. The vast majority of ED patients can tolerate substantial delay of medical attention, with no likelihood of serious harm from the delay. This is partly why ED waiting rooms are often filled with people waiting hours before receiving medical attention.
257. When Vickie Crosby arrived at Phoebe Worth, and later at Phoebe Putney, she was not suffering the sort of ultra-extreme emergency for which even a short delay was likely to cause serious harm.
258. Vickie could tolerate much more than a few minutes’ delay of medical attention without the delay being “expected” to place her in “serious jeopardy.”
259. The care provided to Vickie does not meet the definition of “Emergency Medical Care” stated above.
CAUSES OF ACTION
260. Plaintiffs’ causes of action are based on the averments stated above as well as the additional averments stated below.
261. Discovery may produce new information that changes the basis of Plaintiffs’ claims.
262. 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
263. This “simple” or “ordinary” negligence claim is not a claim for professional malpractice subject to OCGA 9-11-9.1.[13]
264. This claim addresses the role of purely managerial or administrative negligence in the breakdown of the Hospital’s patient-safety systems and processes.
265. 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.
266. For example, the CEO of Phoebe Putney Memorial Hospital, Inc. is Scott Steiner. Mr. Steiner is not a licensed healthcare professional. Phoebe Putney emphasizes Mr. Steiner’s personal involvement in patient safety work:
“Scott brought his resolute commitment to patient safety to Phoebe, initiating a journey for the health system to become a High Reliability Organization. He also developed Phoebe Focus, a new strategy, philosophy, plan and approach to guide Phoebe into the future. It includes quality and safety initiatives and a $250 million investment in capital improvements to transform the delivery of healthcare throughout southwest Georgia.”[14]
Duties
267. Each of the Defendants had duties to perform reasonably in the actions they took.
268. Each of the Defendants also had affirmative duties to take action in connection with managing Putney and Phoebe Worth and their patient safety functions (and to do so reasonably).
269. Each of the Defendants had affirmative duties to take action because they each voluntarily undertook to participate in managing Putney and Phoebe Worth and their patient safety functions, including for surgery patients.[15]
270. Each Defendant knew that managing Putney and Phoebe Worth and their patient safety functions was necessary for the protection of third persons — namely, the Putney’s and Phoebe Worth’s patients.
271. Each Defendant knew that operating Putney and Phoebe Worth without proper patient safety processes would increase the danger to patients.
272. Operating Putney and Phoebe Worth without proper patient safety processes would increase the danger to patients and all but guarantee patient harm that would otherwise not occur.
273. Negligence by each of the Defendants in their respective roles in managing Putney’s and Phoebe Worth’s patient-safety processes did in fact increase the danger to patients, including Vickie Crosby.
274. The Defendants’ negligence made it more likely that medical error would occur and harm patients.
Breaches
275. Each of the Defendants breached their respective duties in managing Putney’s and Phoebe Worth’s patient safety function.
276. The series of errors involving multiple providers at two different Phoebe facilities indicate systemic failings.
277. Several system failures by hospital management contributed to the medical errors in Vickie Crosby’s case:
a. Failure to implement proper communication processes: The hospital failed to create and maintain processes to ensure critical patient information was communicated properly. Specifically, the radiologist’s findings of fractures were not communicated to Vickie, her primary care provider, or the emergency department physician who initially treated her.
b. Lack of follow-up procedures: There were no systems in place to ensure that important test results (like the X-ray findings) were followed up on after a patient was discharged.
c. Inadequate emergency department processes: The complaint notes failures in patient flow and provision of necessary consultations for ED patients with urgent conditions. This is evidenced by the long wait times Vickie experienced and the lack of physician evaluation during her second ED visit.
d. Absence of safety nets for vulnerable patients: Despite Vickie’s confusion and her husband’s memory problems, there were no processes to ensure such vulnerable patients received proper follow-up care or communication of critical findings.
e. Lack of coordination between different facilities within the same health system: There seemed to be poor information sharing and coordination between Phoebe Worth (where Vickie was first seen) and Putney (where she went for her second ED visit).
f. Failure to implement proper patient safety culture: The complaint suggests a systemic failure to prioritize patient safety and create a culture where staff at all levels are empowered to speak up about potential safety issues.
g. Inadequate training or protocols for recognizing and escalating urgent medical conditions: This is evidenced by the nurse practitioner’s failure to recognize the urgency of Vickie’s condition during her second ED visit.
h. Lack of oversight and quality assurance processes: Systems were not in place to catch and correct errors or to review cases where patients may have fallen through the cracks.
Causation & Damages
278. The Defendants’ breaches of their duties were both a cause in fact and a legal cause of Vickie’s injuries.
279. As discussed above, poor patient-safety processes are a primary cause of harm from medical error.
280. The Defendants’ failure to do the necessary managerial/administrative work all but guaranteed that some patient would suffer serious harm because of the inadequate patient-safety processes at Putney and Phoebe Worth.
281. The most critical system failure was the lack of a robust process to communicate important test results to patients and their primary care providers. The absence of such a process left Vickie unaware of her serious injuries for nearly a month, during which time her condition worsened significantly.
282. Similarly, the lack of follow-up procedures, meant that despite the radiologist identifying serious fractures, there was no process to trigger a review of the case or initiate follow-up care. So Vickie's condition deteriorated for weeks without medical intervention.
283. Inadequate Emergency Department Processes: Failures in patient flow and provision of necessary consultations for ED patients with urgent conditions meant that on November 2, when Vickie returned to the ED (this time at Putney), she waited nearly an hour to be seen by a nurse practitioner. Despite her known fractures and severe pain, no physician evaluated her, and no orthopedic consultation was arranged. After waiting for hours without proper evaluation, Vickie left without being seen.
284. Lack of Safety Nets for Vulnerable Patients: The system failed to account for patients who might have difficulty advocating for themselves. Vickie was "somewhat confused" during her initial visit, and her husband had memory problems. Despite these vulnerabilities, there were no additional safeguards to ensure proper follow-up or communication of critical findings.
285. Poor Coordination Between Facilities: The lack of communication processes led to inadequate information sharing between Phoebe Worth (where Vickie was first seen) and Putney (where she went for her second ED visit): When Vickie arrived at Putney on November 2, there was no apparent urgency in her care despite the known fractures from her previous visit to Phoebe Worth.
286. Failure to Implement a Proper Patient Safety Culture: The care of Vickie demonstrates a systemic failure to prioritize patient safety. Despite having the resources to implement proper safety processes, the hospital system failed to do so. There was no apparent system for reviewing cases where patients may have "fallen through the cracks."
287. Inadequate Training or Protocols: Vickie’s care indicates a lack of proper training or protocols for recognizing and escalating urgent medical conditions. On November 2, the nurse practitioner failed to recognize the urgency of Vickie's condition, writing "Undetermined if pt has EMC [emergency medical condition], further testing/eval needed" despite the known fractures and severe pain.
288. These system failures collectively resulted in Vickie's fractures going untreated for over a month, leading to displacement of the fracture, development of a urinary tract infection and delirium, and ultimately requiring more invasive surgery with poorer long-term outcomes.
289. With proper systems in place, Vickie's fractures would have been treated promptly, likely resulting in a full recovery with normal mobility.
Professional Malpractice: ED Providers (Dr. Gaskins, NP Willis, Dr. Braud)[16]
290. The Defendants are vicariously liable for professional malpractice by various ED providers at Phoebe Worth and Putney, including Dr. Johnathan Gaskins, NP Beverly Willis, and Dr. Christine Braud.
Count 1: Failure to communicate critical test results
291. Requirement: The standard of care required the ED providers to promptly inform patient and primary care provider of significant test results
292. Violation: No one at Phoebe Worth or Putney communicated the fracture findings to Vickie or her primary care provider.
293. Causation: The failure delayed the diagnosis and treatment of fractures for nearly a month, allowing Vickie’s condition to worsen and causing Vickie’s long-term diminished mobility and resulting harms.
Count 2: Failure to arrange orthopedic consult
294. Requirement: The standard of care required the ED providers to arrange consultation with orthopedic surgery for Vickie’s fractures.
295. Violation: No one at Phoebe Worth or Putney took action to arrange an orthopedic consult for Vickie.
296. Causation: The failure delayed the diagnosis and treatment of fractures, allowing Vickie’s condition to worsen and causing Vickie’s long-term diminished mobility and resulting harms.
Count 3: Failure to admit patient
297. Requirement: The standard of care required the ED providers to admit Vickie to the hospital for protection and further evaluation of her fractures.
298. Violation: No one at Phoebe Worth or Putney took action to ensure Vickie was admitted to the hospital
299. Causation: The failure delayed the diagnosis and treatment of fractures, allowing Vickie’s condition to worsen and causing Vickie’s long-term diminished mobility and resulting harms.
Count 4: Failure to recognize urgency of condition
300. Requirement: The standard of care required the ED providers to recognize Vickie had an emergency medical condition and needed prompt assessment and treatment.
301. Violation: No one at Phoebe Worth or Putney did so.
302. Causation: The failure delayed the diagnosis and treatment of fractures, allowing Vickie’s condition to worsen and causing Vickie’s long-term diminished mobility and resulting harms.
CONCLUSION
303. Because of the Defendants’ negligence, Vickie has suffered general damages and special damages consisting of past and future medical expenses and related care costs.
304. Plaintiffs demand judgment in excess of $10,000[17] and such other and further relief as the Court deems just and proper.
October 1, 2024
Respectfully submitted,
/s/ Daniel E. Holloway
Georgia Bar No. 658026
DEH Law
2062 Promise Road, Unit 1305
Rapid City, SD 57701
404-670-6227
Attorney for Plaintiff
[1] Exhibit 5, exhibit page 10.
[2] 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 … in the county where the cause of action originated, if the corporation has an office and transacts business in that county;
(4) In actions for damages because of torts … in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business.”
These same venue provisions apply to Professional Corporations, because PCs are organized under the general “Business Corporation” provisions of the Georgia Code. See OCGA § 14-7-3. These venue provisions also apply to Limited Liability Companies, see OCGA § 14-11-1108, and to foreign limited liability partnerships, see OCGA § 14-8-46.
OCGA 9-10-31(b) provides that, “joint tort-feasors … residing in different counties, may be subject to an action as such in the same action in any county in which one or more of the defendants reside.”
[3] Plaintiff is delivering a copy of this complaint to the following potential employers of the individual defendants. Within the period provided by law for commencing the action, each of those entities (1) will have received such notice of the institution of the action that they will not be prejudiced in maintaining their defense on the merits, and (2) will know or should know that, but for a mistake concerning the identity of the proper party, the action would have been brought against them.
· Via Registered Agent Dawn G. Benson at 417 Third Avenue, Albany, GA, 31701:
o Phoebe Health Partners, Inc.
o Phoebe North, Inc.
o Phoebe Putney Health System, Inc.
o Phoebe Putney Health Ventures, Inc.
· Via Registered Agent Wade H. Coleman at 109 South Ashley Street, Valdosta, GA 31601:
o Southland Emergency Medical Services, LLC
o Southland Emergency Medical Services Consolidated, LLC
· Via Registered Agent Karen Summerlin at 901 East 18th Street, Tifton, GA, 31794:
o Southwell Inc.
o Southwell Ambulatory, Inc.
o Tift Regional Health System, Inc.
o Tift Regional Medical Center, Inc.
· Via Registered Agent Rodney Hunter at 119 South Madison Street, Thomasville, GA, 31792: South Georgia Emergency Medicine Associates, P.C.
· Via Registered Agent CSC of Cobb County, Inc. at 5665 New Northside Drive, Suite 320, Atlanta, GA, 30328:
o Apollomd Business Services, LLC
o Apollomd Group Services, LLC
o ApolloMD Holdings, LLC
o Apollomd, Inc.
[4] Duties depend on facts. Important background facts that bear on the duties of healthcare administrators are not widely understood. So we provide a short primer on healthcare administration and its relation to medical error and patient safety.
[5] Exhibit 5, exhibit page 69. Unless otherwise noted, all emphasis in quotations is added.
[6] Plaintiffs stipulate that the Defendants are not required to admit or deny the statements in the exhibits.
[7] 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.
[8] Exhibit 6. Also available at https://www.piedmont.org/living-real-change/time-out-for-safety#.
[9] Exhibit 7.
[10] Exhibit 5, exhibit page 27.
[11] Exhibit 5, exhibit pages 12-13.
[12] With this complaint, we are serving on the Defendants a Bates-stamped set of Vickie Crosby’s medical records. The record citations here are to that set of records.
[13] 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.”).
[14] https://phoebehealth.com/about-us/leadership/bio-scott-steiner/.
[15] 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.”).
[16] Additional information may show professional malpractice by nurses or others involved in Vickie Crosby’s care. Plaintiff may amend this complaint at a later time to include vicarious-liability claims based on nursing malpractice. For the relevant law, see OCGA 9-11-15 (relation back); OCGA 9-11-9.1 (no pre-SOL requirement for affidavits of merit); 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).”).
[17] This language is required by OCGA 9-11-8(2)(B), which also provides that “no further monetary amount shall be stated.”