Complaint: Holloway v. Emory Healthcare, Inc., et al
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
Linda Holloway,
Plaintiff,
— versus —
Kaiser Permanente Insurance Company
The Southeast Permanente Medical Group, Inc.
Kaiser Foundation Health Plan of Georgia, Inc.
Kaiser Foundation Health Plan, Inc.
Kaiser Foundation Hospitals, Inc.
Saint Joseph’s Hospital of Atlanta, Inc.
Emory Healthcare, Inc.
Cheickna Diarra, MD
Darryl J. Tookes, MD
John/Jane Doe 1-10,
Defendants
CIVIL ACTION
FILE NO. ___________
JURY TRIAL DEMANDED
PLAINTIFF’S COMPLAINT
Nature of the Action
1. This medical malpractice action arises out of medical services negligently performed on Linda Holloway on February 6, 2020.
2. Plaintiff asserts: (i) a claim of professional malpractice by Dr. Diarra and Dr. Tookes, (ii) a claim of “ordinary” negligence in the administration of the Kaiser and Emory healthcare practices, (iii) a defense to a putative arbitration agreement, (iv) an alternative claim for fraudulent inducement, pertaining to the arbitration agreement (if it is deemed otherwise valid), (v) an alternative claim for breach of fiduciary duty, and (vi) a claim for negligence in connection with extracting the putative arbitration agreement.
3. Plaintiff demands a jury trial on all issues.
4. Plaintiff specifically demands a jury trial on the issue of the validity of the putative arbitration agreement.
5. Pursuant to OCGA § 9-11-9.1, the Affidavit and Supplemental Affidavit of Peter Mowchenson, MD, are attached hereto as Exhibits 1-2. This Complaint incorporates the opinions and factual allegations contained in those affidavits, except that the Defendants need not answer the statements contained in exhibits to this Complaint.
6. As used in this Complaint, the phrase “standard of care” means that degree of care and skill ordinarily employed by the medical profession generally under similar conditions and like circumstances as pertained to the Defendant’s actions under discussion.
Notes
Matter that Requires No Response from Defendants
Defendants need not respond to statements that are not made in numbered paragraphs, except where a numbered averment explicity incorporates accompanying matter that is not in a numbered paragraph.
Defendants need not respond to statements in footnotes.
Defendants need not respond to citations to Bates-stamped pages of records or graphics that accompany allegations. The citations and graphics are included only to make it easy to respond to substantive allegations, but are not part of the allegations. Plaintiff stipulates that an answer to an allegation does not constitute an answer to anything concerning an accompanying citation or graphic.
Extra Time to Respond
This complaint gives unusually detailed notice of the basis of the claims. The purpose is to narrow the disputes at the outset, and thereby to simplify discovery and trial.
However, because this complaint is so detailed, Plaintiff will agree to any reasonable request for extra time to file an answer.
Defendants, Jurisdiction, and Venue[1]
Note: Based on publicly available information, the corporate entities named below appear to be proper parties. However, if any are not, we encourage them to contact Plaintiff’s counsel before filing an answer. Given clear evidence that an entity is not a proper party, Plaintiff will dismiss the entity.
7. KAISER PERMANENTE INSURANCE COMPANY (“KPIC”) is an insurance company registered to do business in Georgia. Their registered agent and registered office are: Corporation Service Company, 2 Sun Court, Suite 400, Peachtree Corners, GA, 30092, in Gwinnett County.
8. KPIC is subject to the personal jurisdiction of this Court.
9. KPIC is subject to the subject-matter jurisdiction of this Court in this case.
10. KPIC has been properly served with this Complaint.
11. KPIC has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
12. Pursuant to OCGA § 9-10-31, KPIC is directly subject to venue in Gwinnett County.
13. At all relevant times, KPIC was a principal of Dr. Cheickna Diarra.
14. At all relevant times, KPIC was a principal of Dr. Darryl Tookes.
15. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
16. KPIC participated in the management of medical facilities and practices that Dr. Cheickna Diarra participated in, and which created requirements that Dr. Diarra was subject to in his practice as a Kaiser Permanente physician.
17. THE SOUTHEAST PERMANENTE MEDICAL GROUP, INC. (“SPMG”) is a Georgia corporation. Their registered agent and registered office are: Corporation Service Company, 2 Sun Court, Suite 400, Peachtree Corners, GA, 30092, in Gwinnett County.
18. SPMG is subject to the personal jurisdiction of this Court.
19. SPMG is subject to the subject-matter jurisdiction of this Court in this case.
20. SPMG has been properly served with this Complaint.
21. SPMG has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
22. Pursuant to OCGA § 9-10-31, SPMG is directly subject to venue in Gwinnett County.
23. At all relevant times, SPMG was a principal of Dr. Cheickna Diarra.
24. At all relevant times, SPMG was a principal of Dr. Darryl Tookes.
25. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
26. SPMG participated in the management of medical facilities and practices that Dr. Cheickna Diarra participated in, and which created requirements that Dr. Diarra was subject to in his practice as a Kaiser Permanente physician.
27. KAISER FOUNDATION HEALTH PLAN OF GEORGIA, INC. (“KFHPG”) is a Georgia insurance company. Their registered agent and registered office are: Corporation Service Company, 2 Sun Court, Suite 400, Peachtree Corners, GA, 30092, in Gwinnett County.
28. KFHPG is subject to the personal jurisdiction of this Court.
29. KFHPG is subject to the subject-matter jurisdiction of this Court in this case.
30. KFHPG has been properly served with this Complaint.
31. KFHPG has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
32. Pursuant to OCGA § 9-10-31, KFHPG is directly subject to venue in Gwinnett County.
33. At all relevant times, KFHPG was a principal of Dr. Cheickna Diarra.
34. At all relevant times, KFHPG was a principal of Dr. Darryl Tookes.
35. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
36. KFHPG participated in the management of medical facilities and practices that Dr. Cheickna Diarra participated in, and which created requirements that Dr. Diarra was subject to in his practice as a Kaiser Permanente physician.
37. KAISER FOUNDATION HEALTH PLAN, INC. (“KFHP”) is a California corporation. Their registered agent and registered office are: Corporation Service Company, 2 Sun Court, Suite 400, Peachtree Corners, GA, 30092, in Gwinnett County.
38. KFHP is subject to the personal jurisdiction of this Court.
39. KFHP is subject to the subject-matter jurisdiction of this Court in this case.
40. KFHP has been properly served with this Complaint.
41. KFHP has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
42. Pursuant to OCGA § 9-10-31, KFHP is directly subject to venue in Gwinnett County.
43. At all relevant times, KFHP was a principal of Dr. Cheickna Diarra.
44. At all relevant times, KFHP was a principal of Dr. Darryl Tookes.
45. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
46. KFHP participated in the management of medical facilities and practices that Dr. Cheickna Diarra participated in, and which created requirements that Dr. Diarra was subject to in his practice as a Kaiser Permanente physician.
47. KAISER FOUNDATION HOSPITALS, INC. (“KFHI”) is a California corporation. Their registered agent and registered office are: Corporation Service Company, 2 Sun Court, Suite 400, Peachtree Corners, GA, 30092, in Gwinnett County.
48. KFHI is subject to the personal jurisdiction of this Court.
49. KFHI is subject to the subject-matter jurisdiction of this Court in this case.
50. KFHI has been properly served with this Complaint.
51. KFHI has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
52. Pursuant to OCGA § 9-10-31, KFHI is directly subject to venue in Gwinnett County.
53. At all relevant times, KFHI was a principal of Dr. Cheickna Diarra.
54. At all relevant times, KFHI was a principal of Dr. Darryl Tookes.
55. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
56. KFHI participated in the management of medical facilities and practices that Dr. Cheickna Diarra participated in, and which created requirements that Dr. Diarra was subject to in his practice as a Kaiser Permanente physician.
57. The “Kaiser Defendants” refers collectively to KPIC, SPMG, KFHPG, KFHP, and KFHI.
58. SAINT JOSEPH’S HOSPITAL OF ATLANTA, INC. (“SJHA”) is a Georgia nonprofit corporation. Their registered agent and registered office are: Amy Adelman, Emory University, 201 Dowman Drive, 312 Administration Building, Atlanta, GA, 30322, in DeKalb County.
59. SJHA is subject to the personal jurisdiction of this Court.
60. SJHA is subject to the subject-matter jurisdiction of this Court in this case.
61. SJHA has been properly served with this Complaint.
62. SJHA has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
63. Pursuant to OCGA § 9-10-31, SJHA is subject to venue in this Court because some of its co-defendants are directly subject to venue here
64. At all relevant times, SJHA was a principal of Dr. Cheickna Diarra.
65. At all relevant times, SJHA was a principal of Dr. Darryl Tookes.
66. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
67. At all relevant times, SJHA participated in the administration of the hospital operating under the trade name Emory Saint Joseph’s Hospital at 5665 Peachtree Dunwoody Rd, Atlanta, GA 30342.
68. EMORY HEALTHCARE, INC. (“EHI”) is a Georgia nonprofit corporation. Their registered agent and registered office are: Amy Adelman, Emory University, 201 Dowman Drive, 312 Administration Building, Atlanta, GA, 30322, in DeKalb County.
69. EHI is subject to the personal jurisdiction of this Court.
70. EHI is subject to the subject-matter jurisdiction of this Court in this case.
71. EHI has been properly served with this Complaint.
72. EHI has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
73. Pursuant to OCGA § 9-10-31, EHI is subject to venue in this Court because some of its co-defendants are directly subject to venue here
74. At all relevant times, EHI was a principal of Dr. Cheickna Diarra.
75. At all relevant times, EHI was a principal of Dr. Darryl Tookes.
76. If any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
77. At all relevant times, EHI participated in the administration of the hospital operating under the trade name Emory Saint Joseph’s Hospital at 5665 Peachtree Dunwoody Rd, Atlanta, GA 30342.
78. The “Emory Defendants” refers collectively to SJHA and EHI.
79. CHEICKNA DIARRA, MD is a Georgia resident. He resides at 1864 Vinings Mill Walk SE, Smyrna, GA 30080-6344, in Cobb County.
80. Dr. Diarra is subject to the personal jurisdiction of this Court.
81. Dr. Diarra is subject to the subject-matter jurisdiction of this Court in this case.
82. Dr. Diarra has been properly served with this Complaint.
83. Dr. Diarra has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
84. Pursuant to OCGA § 9-10-31, Dr. Diarra is subject to venue in this Court because some of his co-defendants are directly subject to venue here.
85. At all relevant times, Dr. Diarra was employed by one or more of the “Kaiser Defendants” identified below.
86. If any other entity was a principal of Dr. Diarra, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
87. DARRYL J. TOOKES, MD is a Georgia resident. He resides at 1470 Niskey Lake Road SW, Atlanta GA 30331-6310 (Fulton County).
88. Dr. Tookes is subject to the personal jurisdiction of this Court.
89. Dr. Tookes is subject to the subject-matter jurisdiction of this Court in this case.
90. Dr. Tookes has been properly served with this Complaint.
91. Dr. Tookes has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
92. Pursuant to OCGA § 9-10-31, Dr. Tookes is subject to venue in this Court because some of his co-defendants are directly subject to venue here.
93. At all relevant times, Dr. Tookes was employed by one or more of the “Kaiser Defendants” identified below.
94. If any other entity was a principal of Dr. Tookes, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
Cause of Action 1: Professional Malpractice (All Defendants)
General Notice of the Claim
95. Dr. Diarra and Dr. Tookes are directly liable to Linda Holloway for professional malpractice.
96. On February 6, 2020, Dr. Diarra and Dr. Tookes each owed professional duties of care to Linda Holloway.
97. On February 6, 2020, Dr. Diarra and Dr. Tookes each violated professional duties of care they owed to Linda Holloway.
98. Those violations caused harm to Linda Holloway.
99. The Kaiser Defendants and Emory Defendants are vicariously liable for the negligence by Dr. Diarra and Dr. Tookes in their responsibilities to Linda Holloway.
100. Dr. Diarra and Dr. Tookes were actual and/or ostensible agents or otherwise servants and/or employees of the Kaiser Defendants.
101. Dr. Diarra and Dr. Tookes were actual and/or ostensible agents or otherwise servants and/or employees of the Emory Defendants.
More Detailed Notice of the Claim
102. The foregoing averments suffice to state a claim. The following averments are not needed in order to give the required notice. They are presented instead to give the Defendants additional notice, to narrow the disputes, and to simplify discovery and trial.[2]
Facts
Wednesday, February 5, 2020 — at Kaiser Permanente
Before Kaiser
103. All times stated in this chronology are approximate.
104. On Wednesday, February 5, 2020, around noon or 1300 hrs, Linda Holloway begins having abdominal pain that increases in intensity.
105. The pain is similar to abdominal pain Linda Holloway has experienced in the past, but feels different — “more throughout my entire colon.”
106. At approximately 1600 hrs, Linda Holloway’s husband, Dan, asks if she feels like she needed to go to an Emergency Room. Linda Holloway replies that she doesn’t want to.
107. A couple hours later, around 1758 hrs, Dan calls Kaiser Permanente (Linda Holloway’s HMO) for advice. Staff nurse Norma Barnes advises Dan to take Linda Holloway to Kaiser’s “Advanced Care” center in Kennesaw, Georgia.
· EJa 635
At Kaiser Permanente in Kennesaw
108. At 1841 hrs, Linda Holloway and Dan arrive at Kaiser Permanente’s Advanced Care Center at 750 Townpark Lane in Kennesaw, Georgia.
· EJa 626
…
109. At 1850 hrs, Nurse Kathryn Camille Skinner notes Linda Holloway’s problem as “Severe stomach pain for 4 hours, nauseated, no vomiting or diarrhea.”
· EJa 640
110. Linda Holloway tells ED physician Dr. Susan Goggans that Linda Holloway has had nothing to eat all day, apart from a couple crackers Linda Holloway thought might help the pain. (The crackers didn’t help.) Linda Holloway reports that she had a bowel movement in the morming.
· EJa 628
111. At about 2012 hrs, Linda Holloway is taken for a CT scan.
112. At 2019 hrs, Nurse Clifford notes, “Pt states she is very nauseated at this time, pt taken to CT via wheelchair. Husband at bedside. RN to medicate for pain upon return.”
· EJa 634
113. At 2033 hrs, Nurse Danielle O’Clifford gives Linda Holloway 2 mg of morphine through an IV.
· EJa 638
114. At 2113 hrs, Nurse Kathy Wooley gives Linda Holloway 2 mg of morphine through an IV.
· EJa 634
115. Around 2130 hrs, radiologist Dr. Joseph G. Todaro reviews Linda Holloway’s CT images. In his report, Dr. Todaro writes that the CT findings are “consistent with small bowel obstruction and raise[] concern for closed loop obstruction and internal hernia.”
· EJa 623
116. Dr. Todaro recommends a surgical consult.
· EJa 624
117. Dr. Todaro speaks to Dr. Goggans about the CT findings.
· EJa 623
118. At 2146 hrs, Nurse Danielle O’Clifford gives Linda Holloway 0.5 mg of hydromorphone through an IV.
· EJa 634
· EJa 638
Transfer to Emory St. Joseph’s Hospital
119. At 2149 hrs, Dr. Goggans arranges for Linda Holloway to be transferred to Emory St. Joseph’s hospital, into the care of Dr. Cheickna Diarra, a general surgeon. Dr. Goggans speaks to Dr. Diarra.
· EJa 633-34
120. Around 2300 hrs, Kaiser Nurse Cox checks on the status with Emory. Still not ready for Linda Holloway.
· EJa 627
121. Around midnight, Kaiser Nurse Anna Carroll checks with Emory again. Still not ready for Linda Holloway.
· EJa 627
122. Shortly after midnight, at 0018 hrs, Emory is ready for Linda Holloway, and Kaiser calls an ambulance to transfer Linda Holloway.
· EJa 627
…
123. At 0024 hrs, the ambulance EMT’s are at Linda Holloway’s bedside, preparing to transport her.
· EJa 23
124. At 0034 hrs, Kaiser Nurse Linda Holloway Ann Ainslie copies Linda Holloway’s medical records to send to Emory, and makes the CT study available to Emory electronically.
· EJa 626
125. At 0118 hrs, the ambulance arrives at Emory.
· EJa 23
Thursday, February 6, 2020 — at Emory St. Joseph’s
126. From 0137 hrs to 0157 hrs, Emory Nurse Preema Sharma performs a patient intake routine with Linda Holloway in her hospital room.
· EJa 330
127. At 0146 hrs, Nurse Sharma notes Linda Holloway’s pain level as 7 out of 10.
· EJa 481
128. At 0230 hrs approximately, Dr. Cheickna Diarra evaluates Linda Holloway.
129. Dr. Diarra has Kaiser’s medical records, including the CT report, available.
· EJa 626
130. In his History & Physical, Dr. Diarra writes that Linda Holloway has had abdominal pain for four hours. That is inaccurate. In fact, Linda Holloway has had abdominal pain for 13 or 14 hours, starting around noon or 1300 hrs the previous day.
· EJa 57
131. Dr. Diarra notes that Linda Holloway had one episode of vomiting at the Kaiser care center.
· EJa 57
132. Dr. Diarra performs a physical exam and notes, “GI - soft, mildly distended, mildly tender and tympanic, decreased bowel sounds, no organomegaly, no diffuse peritonitis.”
· EJa 58
133. Dr. Diarra reviews the CT performed at Kaiser. He copies the CT report findings and impression into his History & Physical — putting the text relating to the bowel in bold.
· EJa 59-60
…
…
134. Dr. Diarra writes in his assessment, “Unspecified intestinal obstruction, unspecified as to partial versus complete obstruction.”
· EJa 60
135. Dr. Diarra notes in additional comments that Linda Holloway may have a closed loop obstruction, but that it is unclear without a CT performed with oral (as opposed to IV) contrast. Dr. Diarra notes that if Linda Holloway does have a closed loop obstruction, she will need a diagnostic laparoscopy and possibly an exploratory laparotomy.
· EJa 61
136. Dr. Diarra writes that his plan is to repeat the CT in the morning at 8 AM, with oral and IV contrast, and to have Dr. Tookes follow up with Linda Holloway.
· EJa 61
137. Dr. Diarra orders a CT “routine” for 8:00 AM, to rule out a closed loop obstruction.
· EJa 60
· EJa 299
138. CT transport does not come to get Linda Holloway until 1052 hrs — nearly 11:00 AM.
139. CT transport returns with Linda Holloway a few minutes later — before the CT was done — because Linda Holloway is too dizzy to ride in a wheelchair. Linda Holloway’s nurse says they’ll have to do the CT later. Linda Holloway’s husband insists that they take Linda Holloway for the CT now, in her bed, which has wheels. The nurse and transport person agree and take Linda Holloway to the CT again, at 1103 hrs.
140. The nurse and transport person agree and take Linda Holloway to the CT again, at 1103 hrs.
141. The CT imaging begins at 1115 hrs and ends by 1119 hrs.
· DICOM imaging metadata
· DICOM images
142. Linda Holloway is back from the CT by 1133 hrs.
143. At 1145 hrs approximately, Dan asks the nurse to ask the doctor in charge to make sure any additional imaging (an MRI, if needed) is ordered and performed stat — so there won’t be additional hours-long delay for imaging. At this point, Dan still doesn’t know who the attending physician is.
144. At 1214 hrs, Radiologist Dr. William Clark Small finalizes and signs his CT report. He writes, “Segment of edematous appearing small bowel with configuration of dilation and central tethering suggesting closed loop obstruction with poor mucosal enhancement suggestive of early ischemia.”
· EJa 347
145. At 1217 hrs, Dr. Darryl Tookes, a general surgeon, comes into Linda Holloway’s room. Dr. Tookes tells Linda Holloway and Dan that the radiologist called him to say Linda Holloway had a closed loop obstruction. Speaking to Dan, Dr. Tookes explains what that means and its implications. He uses his phone to pull up a diagram showing a closed loop obstruction. Part way into the conversation, Dan gets Dr. Larry Schlachter on the phone to participate in the conversation. Dr. Tookes, Dr. Schlachter, and Dan all agree on the need for emergency surgery. Dan tells Linda Holloway of the plan.
146. At 1356 hrs, anesthesia is ready.
· EJa 65
147. At 1432 hrs, surgery begins. It continues until 1607 hrs.
· EJa 65
148. Dr. Tookes finds ischemic small bowel with a band around it. The bowel had volvulized on itself — that is, the bowel had become twisted.
· EJa 75
149. Dr. Tookes finds 135 cm — about 53 inches, or about 4-1/2 feet — of ischemic small bowel. The ischemic section runs from about the middle of Linda Holloway’s ileum to the ileocecal valve, where the small intestine joins the large intestine.
· EJa 76
150. Dr. Tookes cuts out the ischemic small bowel and the cecum, along with the ileocecal valve and the appendix.
· EJa 76
151. Dr. Tookes measures the remaining small bowel. It is approximately 165 cm (65 inches, or about 5-1/2 feet).
· EJa 76
152. Before the surgery, Linda Holloway’s small bowel totaled approximately 300 cm (135 + 165).
153. By the time Linda Holloway received surgery, approximately 45% of her small bowel was ischemic and had to be cut out.
154. The tissue cut out was sent to pathology. Pathologist Dr. Jackie Hoffman issues a report describing the physical appearance of the small bowel as “multiple loops of pink-purple, diffusely dusky appearing small bowel attached to a pink-tan and viable appearing portion of cecum. … There is abundant hemorrhagic fluid and clot material in the lumen of the small bowel. The mucosa at the proximal margin and the most proximal 3.5 cm of the specimen is pink-tan and viable appearing. The small bowel mucosa distal to this small segment of viable tissue adjacent to the proximal margin is notable for a 92 cm in length dark purple and dusky area that demonstrates the usual folds that appears nonviable.”
· EJa 339-40
Dr. Diarra’s & Dr. Tookes’ Professional Malpractice
Task 1: Respond to findings suspicious for a looped bowel obstruction.
Requirement
155. Given CT findings that are suspicious for a closed-loop bowel obstruction, the standard of care requires a general surgeon to perform an emergency laparoscopy. If done promptly, before radiologic signs of ischemia, surgical intervention can likely avoid any loss of bowel.
156. Small bowel obstructions occur frequently and are well known to the medical community.
157. Closed loop bowel obstructions are unlikely to resolve without surgery.
158. Closed loop bowel obstructions may become ischemic rapidly.
159. Even absent signs of current bowel ischemia, signs of a closed loop bowel obstruction require surgical exploration by laparoscopy, without delay.
· Shackelford's Surgery of the Alimentary Tract, Eighth Edition (Elsevier 2019)
160. Further diagnostic imaging (e.g., to repeat the CT with oral contrast) is unnecessary, but if it is to be performed, it must be performed without delay.
161. If laparoscopy confirms a closed loop obstruction, then absent some contraindication, the surgeon must proceed immediately to surgical remediation.
Negligence — Point 1
162. When called by ED physician Dr. Goggins, the standard of care required Dr. Diarra to identify Linda Holloway’s suspected looped bowel obstruction as an emergency, requiring immediate transfer from Kaiser to Emory — for a laparascopy to be performed as soon as possible upon Linda Holloway’s arrival at Emory.
163. Dr. Diarra’s failure to identify the emergency during the phone call with Dr. Goggins caused a multi-hour delay in transferring Linda Holloway from Kaiser to Emory. The call occurred around 2149 hrs on February 5. Because of delays at Emory’s end, the ambulance was not called for Linda Holloway until 0018 hrs the next morning — a delay of about 2-1/2 hours.
Negligence — Point 2
164. Furthermore, while Linda Holloway arrived at Emory at 0118 hrs, Dr. Diarra did not come to Linda Holloway’s bedside until about 0230 hrs — another delay of over an hour.
Negligence — Point 3
165. When Dr. Diarra finally assessed Linda Holloway around 0230 hrs, the standard of care required Dr. Diarra to perform an emergency laparoscopy. The purpose is to confirm or rule out a looped bowel obstruction — and if so, repair it — before the bowel becomes ischemic and requires surgical excision.
166. Given a patient with approximately 12 hours or more of severe abdominal pain, and radiologic findings suspicious for a looped bowel obstruction, it was unreasonable to wait for another CT scan. It is grossly unreasonable, and dangerous to the patient, to wait multiple hours.
167. The lack of oral contrast on the prior CT did not require another CT before a laparoscopy.
168. In cases of suspected total obstruction, oral contrast is not advised.
Negligence — Point 4
169. However, if another CT were to be performed with oral contrast, it was unnecessary, unreasonable, and dangerous to wait hours in order to suction gastric contents with a nasogastric tube.
170. Dr. Diarra violated the standard of care by failing to perform an emergency laparoscopy, and by intentionally creating a delay of at least 5-1/2 hours (from 0230 hrs to 0800 hrs) merely for another (unnecessary) CT.
Negligence — Point 5
171. After negligently causing dangerous delay, Dr. Diarra compounded the danger by failing to provide orders or instructions to the nurses, to notify him or another physician of worsening signs or symptoms — including pain.
172. Pain is a symptom of bowel obstruction. Severe and increasing pain escalates the concern for ischemia and eventually necrosis of the bowel.
173. Over several hours, Linda Holloway’s pain worsened dramatically, requiring heavy doses of hydromorphone. But the nurses never notified any physician of Linda Holloway’s worsening pain.
Causation & Damages
174. Dr. Diarra’s negligence caused harm to Linda Holloway.
175. The CT performed at the Kaiser facility showed no signs of ischemic bowel.
176. Furthermore, when surgery was eventually performed around 1400 hrs on February 6, the pathologist described the resected bowel as “pink-purple, diffusely dusky” in appearance.
177. If Dr. Diarra had performed an emergency laparoscopy — nearly 12 hours before the ultimate surgery — it is likely that Linda Holloway would have had no ischemic bowel, that Linda Holloway would have lost no bowel. It is all but certain that if Linda Holloway lost any bowel, she would not have lost 4-1/2 feet of it (or 45% of the total length of her small bowel).
Task 2: Order a CT scan for a patient with suspected looped bowel obstruction
Requirement
178. As discussed above, another CT scan for Linda Holloway was unnecessary and inappropriate when Dr. Diarra assessed Linda Holloway. However, if a CT scan was to be ordered then, the standard of care would require that it be ordered stat.
179. Furthermore, while it would violate the standard of care to create a multi-hour delay for another CT, if a delayed CT was to be ordered, the standard of care would require ordering it to be performed stat at the appointed time — rather than “routine” at the appointed time, which would create the risk of still more hours of delay.
Negligence
180. Dr. Diarra further violated the standard of care by ordering the unnecessary CT with a deliberate delay of approximately 5-1/2 hours.
181. A desire for oral contrast did not justify delaying an additional CT. First, oral contrast is not advised in cases of suspected total bowel obstruction. Second, even if oral contrast was to be used, it did not require further delay.
182. Dr. Diarra compounded the negligence by ordering the CT “routine” — creating the risk (and then the fact) of an additional multi-hour delay.
Causation & Damages
183. The delay attributable to Dr. Diarra’s order for the unnecessary CT amounted to approximately 9-1/2 hours — from about 0230 hrs when Dr. Diarra saw Linda Holloway, to about 1200 hrs when the radiologist reported his findings to Dr. Tookes.
184. The delay of 9-1/2 hours likely caused all of the ischemia that required resection of Linda Holloway’s small bowel. If Dr. Diarra had performed a laparoscopy without that delay, it is likely that none of Linda Holloway’s small bowel would have had to be cut out.
185. Pursuant to OCGA Title 51, Chapter 4, Linda Holloway is entitled to recover from Dr. Diarra and the Kaiser Defendants for all damages caused by Dr. Diarra’s professional malpractice.
Task 3: Attend to a patient admitted overnight for a suspected closed loop bowel obstruction
Requirement
186. When a general surgeon comes on duty at a hospital in the morning to make rounds, the standard of care requires the surgeon to survey the patients needing his or her care, and to set priorities for making rounds.
187. A patient admitted overnight for a suspected closed loop bowel obstruction is a high-priority patient — particularly one in Linda Holloway’s situation, who by 0700 hrs on Feb 6 had been suffering severe pain for at least 16 hours.
188. Unless other higher-priority patients delay the surgeon — or unless the systems in place at the hospital make it impracticable to identify the priority of patient conditions — the standard of care requires the surgeon coming on duty to immediately attend to a patient admitted overnight for a suspected closed loop bowel obstruction.
Facts
189. Dr. Darryl Tookes was a general surgeon who came on duty the morning of February 6, 2020.
· See Dr. Diarra’s HPI, at EJa 61
190. Dr. Tookes did not see Linda Holloway until after noon — 5 hours after the typical start time of 0700 hrs.
Negligence
191. Dr. Tookes violated the standard of care by failing to evaluate Linda Holloway urgently, at the start of his shift.
Causation & Damages
192. If Dr. Tookes had assessed the priority of his patients and attended to Linda Holloway promptly upon beginning his shift, less of Linda Holloway’s small bowel would have had to be cut out.
Cause of Action 2: Negligence (the Kaiser Defendants & the Emory Defendants)
General Notice of the Claim
193. The Kaiser Defendants and the Emory Defendants owed duties of care to Linda Holloway.
194. More specifically, the Kaiser Defendants and the Emory Defendants owed duties of ordinary care to Linda Holloway
195. The Kaiser Defendants and the Emory Defendants violated duties of ordinary care to Linda Holloway.
196. More specifically, the Kaiser Defendants and the Emory Defendants violated their duties of ordinary care, (a) through the actions of their non-professional administrators, and (b) through the actions of their professional staff in performing purely administrative tasks.
197. Negligent administration by the Kaiser Defendants and the Emory Defendants created unreasonable potential for medical errors by the physicians and nurses involved in the care of Linda Holloway. That is, mal-administered systems and organizational cultures promoted, rather than prevented, medical error.
198. By violating their duties of ordinary care, the Kaiser Defendants and the Emory Defendants harmed Linda Holloway.
199. The individuals directly responsible for acts of negligent administration were actual and/or ostensible agents or otherwise servants and/or employees of the Kaiser Defendants and/or the Emory Defendants.
200. The Kaiser Defendants and Emory Defendants are vicariously liable for the negligence of the individual administrators whose negligence contributed to injure Linda Holloway.
More Detailed Notice of the Claim
201. The foregoing averments suffice to state a claim. The following averments are not needed in order to give the required notice of the claim. They are presented instead to give the Defendants additional notice, to narrow the disputes, and to simplify discovery and trial.
Negligence, not Professional Malpractice
202. This is not a claim for professional malpractice as defined in OCGA 9-11-9.1. This is a claim for negligence — that is, “ordinary” or “simple” negligence.
203. This claim is premised largely on the negligence of individuals who are not licensed for professions listed in OCGA 9-11-9.1.
204. Any negligence by an individual not licensed for a profession listed in OCGA 9-11-9.1(g) is ordinary negligence, not professional malpractice.
205. Georgia law recognizes that ordinary negligence in the form of negligent administration can contribute to a chain of events that includes medical malpractice and harms a patient.[3]
206. Georgia law recognizes that both ordinary negligence & medical malpractice can exist and combine to cause harm — creating liability for both ordinary negligence and medical malpractice.
207. The Georgia courts have not catalogued every purely administrative duty in a hospital.
208. To the extent this claim is premised on the negligence of individuals who are licensed for professions listed in OCGA 9-11-9.1, this claim addresses only actions that could permissibly be performed by people who are not so licensed.
209. To the extent the trial and appellate courts ultimately determine that any particular act constituted professional malpractice as defined in OCGA 9-11-9.1, Plaintiff stipulates that the act does not support a claim ordinary negligence.
Principles of Healthcare Administration
210. The averments in this “Principles of Healthcare Administration” section and its subsections are drawn primarily from the Joint Commission accreditation standards for hospitals and from the United States Health & Human Services regulations for hospitals that participate in the Medicare program (which includes virtually all American hospitals). The averments in this section also draw from the literature on hospital administration, patient safety, and quality improvement.
The Scale of Medical Error, & System Failures as a Cause
211. Preventable medical error is the third leading cause of death in America.
212. The Institute of Medicine’s 1999 report, To Err is Human, became, and still is, widely known in the healthcare industry, including by the healthcare organizations in this case.
213. The Institute of Medicine’s 1999 report, To Err is Human, estimated that in American hospitals 44,000 to 98,000 patients died each year from medical errors — with a financial cost between 17 and 29 billion dollars.
214. Approximately one third of medical errors cause harm. Most medical errors do not cause harm. If all medical errors could be identified and addressed promptly, many if not all medical errors could be prevented before they cause serious harm.
215. One central function of healthcare administration is to create systems and organizational cultures that facilitate exposing medical errors before they cause serious harm.
216. The federal government has invested billions of dollars to promote patient safety programs.
217. The complexity of hospital care creates potential for medical errors of various kinds — for example, inattention, failures of communication, lack of preparedness, mistaken assumptions that someone else is addressing a problem, and others.
218. Medical errors usually involve both (a) error by the individual clinicians directly involved in a patient’s care, and (b) system failures that create unnecessary potential for error.
219. For at least 20 years, it has been generally known among hospital administrators — including by the healthcare organizations in this case — that system failures contribute substantially to medical errors that hurt patients.
220. Human error in hospitals can be reduced by well-designed systems. And system failures in hospitals can be reduced by a culture of safety and a program of continuous improvement — continually working to expose vulnerabilities and to fix them before they hurt patients.
221. Protecting patients’ safety requires identifying and fixing system failures and harmful parts of an organization’s culture.
222. One central function of healthcare administration is to create and maintain systems and organizational cultures that protect patients against medical error.
Patient Safety & Healthcare Administration
Management or Administration as a Distinct Discipline
223. Managing or administering a healthcare organization is not the same as practicing medicine or nursing. Management or administration involves different roles, different actions, different responsibilities.
224. Hospital administrators need education, training, and skills different from those required to be a physician or nurse. Non-professional hospital administrators must have education or training in management, but need not have gone to medical or nursing school. Physicians or nurses need not have training in managing organizations.
225. Hospital administrators are not generally required to be physicians or nurses, except for specific positions such as Chief Medical Officer or Chief Nursing Officer.
226. Physicians and nurses working in a hospital typically have not studied healthcare administration or obtained any degree or certification in it.
227. OCGA 9-11-9.1(g) does not include hospital administrators in the list of professionals to which OCGA 9-11-9.1 applies.
228. Non-professional hospital administrators — because they are not medical professionals — do not apply medical judgment in their work.
229. Where physicians or nurses occupy administrative roles, some of their duties include administrative tasks that do not require being a physician or nurse — for example, checking to make sure a certain policy has been communicated to hospital staff, or checking to make hospital staff has undergone certain training.
Non-Professional Administrators & Patient Safety
230. Clinicians treating patients are not in a position to fix problems with the systems and organizational culture in a hospital.
231. Frequently, hundreds of individual physicians practice in a given hospital. The individual physicians practice within the systems and organizational culture maintained by hospital administrators. The individual physicians must rely on, and are constrained by, the work of hospital administrators.
232. Patient safety is not solely the responsibility of the physicians and nurses treating a patient.
233. Hospital administrators acting in a purely administrative capacity have responsibilities for protecting patient safety.
234. Negligence by non-professional administrators can and does foreseeably cause harm to patients. Within the healthcare industry, this principle is accepted and well understood by clinicians and non-clinicians alike.
Responsibilities of Hospital Administrators for Patient Safety
The Fact of Responsibility
235. Federal regulations impose requirements on hospital administrators concerning patient safety.
236. The Joint Commission’s accreditation standards impose requirements on hospital administrators concerning patient safety.
237. Industry standards indicate requirements for hospital administrators concerning patient safety.
238. Federal regulations, Joint Commission standards, and industry standards inform — but do not conclusively dictate — what counts as reasonable conduct by hospital administrators under a given set of circumstances.
239. Pursuant to industry standards: Non-professional hospital administrators are responsible for the systems and organizational culture of the hospital — and for ensuring they protect patient safety.
240. Non-professional hospital administrators are not on their own, to invent solutions to system failures from scratch. To the contrary, hospital administrators have tools and assistance available from multiple patient-safety organizations.
Overall Responsibilities
241. Non-professional hospital administrators must learn about the common sources of medical error industry-wide and ensure that those general sources of error are addressed effectively in the administrators’ own hospital.
242. Non-professional hospital administrators must organize efforts to identify common sources of medical error in the administrators’ own hospital, and to address those sources of error effectively.
243. Concerning policies or protocols for medical care, non-professional hospital administrators have limited but important responsibilities.
244. Concerning policies or protocols for medical care, non-professional hospital administrators are responsible for:
a. making sure need-assessments are performed to identify what policies or protocols should be created,
b. making sure policies and protocols are communicated effectively to hospital staff (instead of just papering the file),
c. making sure training is given so that hospital staff understand how to apply the policies and protocols in practice,
d. making clear that the policies and protocols must be followed (that is, that the policies and protocols are not bureaucratic formalities which staff can disregard),
e. monitoring compliance, and
f. ensuring remedial actions are taken where compliance problems arise.
245. Non-professional hospital administrators must engage all hospital staff in actively seeking out problems in the hospital’s system and culture — and fixing the problems before they cause further harm.
246. Non-professional hospital administrators must ensure the hospital is actually implementing practices that protect patients. Just papering the file is not enough.
Specific Areas of Responsibilities
247. Non-professional hospital administrators have important responsibilities in a variety of specific areas. The following is a non-exhaustive list:
a. Culture of Safety
b. Quality Monitoring & Improvement
c. Staffing & Training
d. Communication and Patient Hand-offs
e. Patient Rights & Grievance Process
f. Sentinel Events.
Professional Malpractice Contrasted with Ordinary Negligence
248. Negligence in the following tasks would constitute professional malpractice. This list is not exhaustive.
a. Deciding whether a policy is needed for a specific medical task based on the intrinsic difficulty of the task (e.g., whether a policy is needed concerning the ordering or placement of supra-pubic catheters).
b. Writing the substantive medical content of a policy concerning a specific medical task (e.g., the ordering or placement of supra-pubic catheters).
c. Writing the substantive medical content of a training program on a medical policy or other medical topic (e.g., the ordering or placement of supra-pubic catheters).
d. Implementing a medical policy in the course of treating a patient.
249. Negligence in the following tasks would constitute ordinary negligence. This list is not exhaustive.
a. Reading the literature on patient safety in order to identify common sources of medical error that have been identified industry-wide.
b. Sending out surveys to physicians, nurses, or patients to get feedback on a given patient safety issue; organizing a discussion group for the same purpose.
c. Analyzing statistical data available to the hospital to identify problem areas in the hospital's medical care that require assessment.
d. Promoting a "Culture of Safety" — that is: (i) telling hospital staff that patient safety is the first priority in all aspects of hospital operations, (ii) telling hospital staff that the goal is zero medical errors, (iii) telling hospital staff that every individual is empowered and required to raise any concerns they have about a patient's care and to press the concern until it is addressed —bregardless of status or authority hierarchies, and without fear of criticism or reprisal, (iv) giving these instructions consistently and repeatedly, so they actually take hold and govern conduct, (v) consistently monitoring the culture of the hospital through surveys.
e. Organizing medical staff to assess the need for a policy on a given medical task. Making sure the assessment gets done.
f. Organizing medical staff to write policies, where a need assessment determines a policy is needed.
g. Disseminating the policy to hospital staff.
h. Requiring staff to read the policy.
i. Telling the hospital staff that the policy is meant to be complied with — that it's not a bureaucratic formality that can be ignored.
j. Organizing the medical staff to assess the need for training on a given medical policy.
k. Where training is determined to be needed, organizing the medical staff to develop the substantive content of the training.
l. Deciding administrative matters concerning training - e.g., whether to conduct it online, in person, through simulation; whether to give a test after the training; scheduling and verifying attendance; etc.
m. Making the training available to hospital staff.
n. Monitoring compliance with policies by surveys or statistical analysis.
o. Creating a patient-grievance program.
p. Telling patients about the hospital's patient-grievance program.
q. Administering the patient-grievance program.
r. Creating a sentinel-event policy.
s. Administering a sentinel-event program.
t. Determining the level of resources (staff, time, money) required to support the implementation of policies, and providing the resources.
250. As to issues of negligent administration that would involve new or revised policies, the breakdown of non-professional, administrative tasks vs. professional tasks is generally as shown in the following chart. (This averment incorporates the chart below.)
Non-Professional Task
Professional Task
Direct an assessment of sources of medical error at this healthcare organization, and the need for a new or revised policy.
Perform the assessment.
Includes both professional and non-professional tasks.
Non-professional administrators can perform surveys and analyze relevant statistical data.
Medical professionals can qualitatively evaluate evidence of care provided to patients.
Where a new or revised policy is needed, direct the medical staff to create it.
Identify and allocate the resources (staff time, staff support, money) necessary to develop the policy.
Create the substance of the policy.
With input from clinical staff, develop a plan for implementing the policy effectively, with accountability.
Identify and allocate the resources (staff time, staff support, money) necessary to implement the policy effectively.
Disseminate the final policy to all relevant staff.
Direct an assessment of the need for training on how to understand and implement the policy properly.
Perform the assessment.
Includes both professional and non-professional tasks.
Non-professional administrators can perform surveys and analyze relevant statistical data.
Medical professionals can qualitatively evaluate evidence of care provided to patients.
Direct the creation of training on how to understand and implement the policy properly.
Create the training.
Includes both professional and non-professional tasks.
Non-professional administrators can participate in general issues concerning the method of training.
Medical professionals must address the substantive issues — for example, helping residents to identify the limits of their abilities and to know when to seek help.
Direct the provision of training, and allocate resources and support needed for it to be effective (e.g., trainer time, trainees time, facilities, mandate to participate).
Implement the policy in day-to-day patient care.
Monitor the effectiveness of policy implementation.
Note: Monitoring can take various forms, from the simple (e.g., patient surveys, physician or nurse surveys) to the complex (e.g., statistical analysis of aggregate data available through the electronic health record system).
If implementation is ineffective, direct the creation of remedial actions.
Design remedial actions.
May be a professional or non-professional task (or a combination), depending on the issue.
Review the proposed remedial actions for personnel, logistical, and efficacy issues.
Direct the implementation of the final remedial actions.
Implement the remedial actions.
May be a professional or non-professional task (or a combination), depending on the issue.
[continue the monitoring/remediation cycle]
Accountability for Hospital administrators
251. Purely administrative negligence can contribute substantially to medical error that hurts patients.
252. It would be dangerous to exempt hospital administrators from accountability for their own negligence.
253. Exempting hospital administrators from accountability for their own negligence would remove an important incentive for administrators to work diligently to create systems that protect patients.
Negligent Administration in This Case
254. The Kaiser Defendants and Emory Defendants violated duties of ordinary care, through administrative negligence, and in so doing they caused harm to Linda Holloway.
255. Without discovery, Plaintiff cannot pinpoint the precise acts of administrative negligence that contributed to injury. Unlike the facts of the medical treatment that appear in the medical records, the facts of hospital administration are not recorded in documents available pre-suit. However, the facts of the medical care permit inferences of administrative negligence in various respects.
256. The facts of the medical care of Linda Holloway permit inferences of administrative negligence in the following respects. The following list does not necessarily exhaust the administrative negligence in this case:
a. Nighttime Problems: Both the Kaiser Defendants and the Emory Defendants failed to properly address the known, industry-wide problem of negligent care in hospitals at night. This problem requires focused attention and remedial measures. Important parts of that work (though not the whole of it) are purely administrative. These entities committed administrative negligence in this respect. The failure caused harm to Linda Holloway.
b. Patient Hand-Offs: Both the Kaiser Defendants and the Emory Defendants failed to take reasonable efforts to ensure effective patient hand-off systems and practices. Important parts of that work (though not the whole of it) are purely administrative. These entities committed administrative negligence in this respect. The failure caused harm to Linda Holloway by depriving Dr. Darryl Tookes of information that would have identified Linda Holloway as a patient needing urgent care as soon as Dr. Tookes took over in the morning of February 6.
c. Culture of Safety: Both the Kaiser Defendants and the Emory Defendants failed to take reasonable efforts to create a culture of safety — in which patient safety takes first priority and all hospital staff are empowered and required to raise concerns about patient safety until they are properly addressed. Important parts of that work (though not the whole of it) are purely administrative. These entities committed administrative negligence in this respect. The failure caused harm to Linda Holloway. First, it permitted Dr. Diarra to tolerate a delay that was dangerous to Linda Holloway. Second, this failure disempowered nurses who otherwise could and would have raised concerns about a multi-hour delay in treating a patient suspected to have a closed loop bowel obstruction.
d. Training re. medical errors generally: Both the Kaiser Defendants and the Emory Defendants failed to take reasonable efforts to train hospital staff on general issues of patient safety — including the frequency of medical error and common sources of medical error (such as late night care and cognitive biases). This lack of training contributed to medical error by Dr. Diarra, and lack of follow-up by the nursing staff when Linda Holloway suffered increasing pain.
e. Patient Rights: Both the Kaiser Defendants and the Emory Defendants failed to take reasonable efforts to ensure that patient rights are known and respected by medical staff. These rights include (i) the right to be informed of the risks of one’s medical condition, (ii) the treatment options, and (iii) the risks and benefits of the various treatment options. Important parts of that work (though not the whole of it) are purely administrative. These entities committed administrative negligence in this respect, and it caused harm. If Dr. Diarra had informed Linda Holloway and her husband appropriately, they would not have consented to a multi-hour delay of treatment or further diagnostic imaging.
f. CT Protocols: The Emory Defendants failed to take reasonable steps to create and implement a protocol for ensuring that CT scans are performed with the urgency intended by surgeons — particularly when ordered for a specific future time. Important parts of that work (though not the whole of it) are purely administrative. These entities committed administrative negligence in this respect, and it caused harm to Linda Holloway by creating unnecessary delay beyond even what Dr. Diarra intended, and required even more of Linda Holloway’s small bowel to be cut out.
g. Training re. medical issues: The Emory Defendants failed to take reasonable steps to ensure proper training for nurses. Much of this work is a matter for medical professionals, but non-professional administrators play an important ancillary role even here. These entities committed administrative negligence in this respect and caused harm, by leaving Linda Holloway for several hours solely in the care of nurses who did not understand the urgency of treatment for a closed loop bowel obstruction. This contributed to unnecessary delay that caused additional bowel ischemia.
h. Patient Grievance Process: The Emory Defendants failed to take reasonable steps to implement a proper patient-grievance process. Important parts of that work (though not the whole of it) are purely administrative. These entities committed administrative negligence in this respect. This act of negligence in Linda Holloway’s case specifically did not cause harm, because by the time Linda Holloway had a grievance, the harm was done. However, the broader failure to implement a proper patient-grievance process more likely than not caused harm by allowing dangerous practices to go unnoticed and unremedied — so that Linda Holloway was brought into a system set up for failure.
i. Sentinel Event Process: The Emory Defendants failed to take reasonable steps to implement a proper sentinel-event process. Important parts of that work (though not the whole of it) are administrative. These entities committed purely administrative negligence in this respect. This negligence more likely than not caused harm in the same way the negligent patient-grievance process caused harm.
257. The non-professional, administrative tasks relating to the foregoing issues involve varying levels of sophistication. However, even the simplest ministerial tasks are important. For example, failure to disseminate a policy would be among the simplest possible tasks, but negligence as to that task would cause harm.
258. Pursuant to OCGA Title 51, Chapter 4, Linda Holloway is entitled to recover from the Kaiser Defendants and the Emory Defendants for all damages caused by their negligent administration.
Defense to Arbitration Agreement, with Jury Demand
259. This count is not an affirmative claim, but is a defense against the invocation of a putative arbitration agreement.
Jury Demand
260. Plaintiff demands a jury trial as to the validity of the putative arbitration agreement (which is attached as Exhibit 3).
261. The arbitration agreement form is governed by the Federal Arbitration Act.
· EJa 578
262. The Federal Arbitration Act provides for a jury trial on the validity of an arbitration agreement.[4]
263. The putative arbitration agreement is invalid for two general reasons: (i) defective drafting that appears on the face of the agreement, and (ii) the circumstances in which the agreement was signed (assuming it was in fact signed).
Defective Drafting
264. The putative agreement was drafted unilaterally and exclusively by Emory Healthcare, Inc.
265. The putative agreement is void for indefiniteness.
Circumstances
266. The putative agreement is void because of the circumstances of this case, in at least two respects.
267. First, pursuant to OCGA 13-3-25, the agreement is voidable — and void at Linda Holloway’s election here — because Linda Holloway was “intoxicated” by narcotics at the time her signature was obtained.[5] Her physical and mental abilities were markedly diminished by morphine and hydromorphone.
268. Second, pursuant to OCGA 13-5-6, Linda Holloway signed under duress. An employee of Emory Healthcare, Inc. told Linda that she needed to sign in case surgery was needed. Linda knew she may need surgery to avoid a fatal bowel rupture. So, though she was unable to read the papers or understand them, she signed.[6]
Cause of Action 3: Fraudulent Inducement (the Emory Defendants)
269. This is an alternative claim, which is moot (or which Plaintiff will waive) if the putative arbitration agreement is ruled invalid.
270. Linda Holloway’s signature on the arbitration agreement was fraudulently induced.
271. An employee of Emory Healthcare, Inc. told Linda Holloway sometime between 1130 hrs and 1208 hrs on February 6, 2020, that Linda Holloway needed to sign certain papers in case she needed surgery. The employee pointed out where Linda Holloway was to sign.
272. The employee’s statement was false.
273. Linda Holloway did not know the statement was false.
274. The arbitration agreement itself contradicted the employee’s statement. But Linda Holloway had no way to know that at the time. She was then unable to read the agreement. Her physical and mental powers were markedly diminished by hydromorphone, a narcotic given her for control of acute, severe pain.
275. Linda Holloway relied on the employee’s statement.
276. In reliance on the employee’s statement, Linda Holloway signed where the employee pointed.
277. Linda Holloway’s signature was fraudulently induced.
278. Linda Holloway elects tort remedies for the fraudulent inducement of the arbitration agreement.
279. The fraudulent inducement has caused Linda Holloway to suffer special damages in the amount of at least $25,000.
Cause of Action 4: Breach of Fiduciary Duty (the Emory Defendants)
280. This is an alternative claim, which is moot (or which Plaintiff will waive) if the putative arbitration agreement is ruled invalid.
281. The Emory Defendants hold themselves out to the public as able and willing to provide healthcare services to the sick and infirm. The Emory Defendants invite sick and infirm people to come to them for medical care.
282. Many of the patients who come to the Emory Defendants for care are sick, infirm, suffer disabilities, and are vulnerable physically, intellectually, and emotionally. The Emory Defendants know this.
283. The Emory Defendants offer to give advice and care to the sick and vulnerable.
284. The Emory Defendants invite the sick and vulnerable to rely on them (or the providers made available by the Emory Defendants) for advice and care.
285. The Emory Defendants are obligated not to take advantage of the infirmity and vulnerability of their patients, in order to extract concessions from the patients.
286. The Emory Defendants willingly accept an obligation to behave in a manner that does not involve taking advantage of the infirmity and vulnerability of their patients, in order to extract concessions from the patients.
287. The Emory Defendants purport to behave in a manner that does not involve taking advantage of the infirmity and vulnerability of their patients, in order to extract concessions from the patients.
288. Emory may not adopt used-car salesman morals, or resort to used-car-salesman tactics, in dealing with their patients.
289. The Emory Defendants stand in a confidential relationship with those of their patients who are sick, infirm, vulnerable, and reliant on them or the providers made available by the Emory Defendants.
290. On February 6, 2020, when an Emory employee extracted signatures from her, Linda Holloway had been in severe pain for well over 12 hours, was exhausted by lack of food and restorative sleep, and was drugged by heavy doses of hydromorphone, a narcotic.
291. In the circumstances at the time, Linda Holloway was not capable of reading the arbitration agreement.
292. In the circumstances at the time, Linda Holloway was not capable of understanding the arbitration agreement even if she could have read it.
293. In the circumstances at the time, Linda Holloway was not capable of understanding the arbitration agreement if the employee had read it out loud to her.
294. The employee did not read the arbitration agreement out loud to Linda Holloway.
295. The employee did not summarize the terms of the arbitration agreement to Linda Holloway.
296. The employee did not tell Linda Holloway she was signing an arbitration agreement.
297. The employee just told Linda Holloway — sick, in pain, drugged, at risk of death from a bowel rupture — that she needed to sign a document in order to get surgery if she needed it.
298. The Emory Defendants took advantage of Linda Holloway’s vulnerability to extract concessions that Linda Holloway was not obligated to make and could not, at that time, understand she was even making.
299. The Emory Defendants thereby breached duties it owed to Linda Holloway by virtue of the confidential relationship it invited and accepted.
300. The Emory Defendants’ breach caused harm to Linda Holloway, including special damages of at least $25,000.
Cause of Action 5: Negligence in Connection with the Putative Arbitration Agreement (the Emory Defendants)
301. This is an alternative claim, which is moot (or which Plaintiff will waive) if the putative arbitration agreement is ruled invalid.
302. Plaintiff incorporates the allegations in Counts 3-5, as if restated in this Count.
303. The Emory Defendants owed Linda Holloway a duty of ordinary care to abstain from taking advantage of her in order to extract concessions from her.
304. The Emory Defendants violated that duty, and the violation caused harm to Linda Holloway, including special damages of at least $25,000, which she is entitled to recover from the Emory Defendants.
Damages
305. Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.
306. As a direct and proximate result of the Defendants’ conduct, Plaintiff is entitled to recover from Defendants reasonable compensatory damages in an amount exceeding $10,000.00 to be determined by a fair and impartial jury for all damages Plaintiff suffered, including physical, emotional, and economic injuries.
307. WHEREFORE, Plaintiff demands a trial by jury and judgment against the Defendants as follows:
a. Compensatory damages in an amount exceeding $10,000.00 to be determined by a fair and impartial jury;
b. All costs of this action;
c. Expenses of litigation pursuant to OCGA 13-6-11;
d. Punitive damages; and
e. Such other and further relief as the Court deems just and proper.
February 2, 2022
Respectfully submitted,
/s/ Lloyd N. Bell
Georgia Bar No. 048800
Daniel E. Holloway
Georgia Bar No. 658026
Bell LAW FIRM
1201 Peachtree St. N.E., Suite 2000
Atlanta, GA 30361
(404) 249-6767 (tel)
bell@BellLawFirm.com
dan@BellLawFirm.com
Attorneys for Plaintiff
[1] 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.
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.”
[2] See Atlanta Women’s Specialists v. Trabue, 310 Ga. 331 (2020) (“Georgia is a notice pleading jurisdiction. Generally, our Civil Practice Act (CPA) advances liberality of pleading. … [A] complaint need only provide fair notice of what the plaintiff's claim is and the grounds upon which it rests. ‘It must be remembered that the 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.’”) (cleaned up).
[3] See, e.g.:
Dent v. Memorial Hospital, 270 Ga. 316 (1998) (medical malpractice case; reversing judgment in favor of hospital, because jury instructions did not make clear that both ordinary negligence and professional malpractice would authorize a verdict against the hospital);
Lowndes County Health v. Copeland, 352 Ga. App. 233 (2019) (medical malpractice case; affirming verdict for both ordinary negligence and professional negligence against a skilled nursing facility).
[4] See 9 USC 4 states, “If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue.”
[5] OCGA 13-3-25. “Intoxicated persons. A contract made by an intoxicated person is not void, though the intoxication is brought about by the other party, but is merely voidable at the election of the intoxicated person and may be ratified by him expressly or by conduct inconsistent with its rescission.”
[6] OCGA 13-5-6. “Duress. Since the free assent of the parties is essential to a valid contract, duress, either by imprisonment, threats, or other acts, by which the free will of the party is restrained and his consent induced, renders the contract voidable at the election of the injured party. Legal imprisonment, if not used for illegal purposes, does not constitute duress.”