In the State Court of DeKalb County

State of Georgia

Stefan Lane

Janet Lane,

                        Plaintiffs,

— versus —

Emory Healthcare, Inc.

The Emory Clinic, Inc.

Principals of the Individual Defendants 1-5

Abrar Chaudhry, MD

Ryan A. Marten, MD

Bryan Lee Mays, RN

Charice Jordan, PA-C

Mahmoud Obideen, MD

John/Jane Doe 1-5,

                        Defendants

Civil Action

File No. 19 A 77517

Jury Trial Demanded

Hon. Alvin K. Wong

Plaintiffs’ Third Amended Complaint[1]

Nature of the Amendment

1.             This Third Amended Complaint adds a claim for non-professional negligence against Emory Healthcare, Inc. and The Emory Clinic, Inc., based on information developed through fact discovery in this case.

2.             This Third Amended Complaint incorporates the allegations and claims asserted in the original Complaint filed on November 6, 2019, and the “Second Amended Complaint” filed on December 22, 2020.

Count 7 – Non-Professional Negligence by Emory Healthcare, Inc. and The Emory Clinic, Inc.

Nature of this Claim & Exclusion of Professional Negligence

3.             In addition to the medical negligence described in the previously filed complaints, Emory Healthcare, Inc. and The Emory Clinic, Inc. committed negligence that does not come within the definition of “professional negligence” of OCGA 9-11-9.1 and is not subject to the affidavit requirement of that statute.

4.             In a healthcare setting where professional negligence occurs, Georgia law recognizes two general categories of negligence not subject to OCGA 9-11-9.1:

Category 1:    Negligence by individuals not licensed by the State of Georgia for professions listed in OCGA 9-11-9.1(g),[2] and

Category 2:    Negligence by individuals who are licensed professionals but who committed negligence in a purely managerial or administrative function.[3]

5.             The courts have of course never catalogued an exhaustive list of purely managerial or administrative functions in the healthcare setting. However, a variety of cases have identified the following as “non-professional” negligence in the cases in which they occurred: staffing decisions based on cost factors;[4] failure to have appropriate equipment;[5] hospital employees’ failure to follow instructions;[6] a nurse’s failure to activate an alarm as ordered by a doctor.[7]

6.             The intent of this Count is to address managerial and administrative negligence, not medical negligence.

7.             This Count is limited to acts of “ordinary” negligence — that is, negligence that falls outside the scope of OCGA 9-11-9.1. To the extent the trial Court and appellate courts determine in this case that an act of negligence is subject to Section 9.1, this Count excludes that act of negligence.

Background: Patient Safety Principles

8.             In 2000, the Institute of Medicine estimated that 44,000 to 98,000 Americans died each year from medical error at that time.

9.             After that, the healthcare industry, academia, and policymakers started to focus on patient safety.

10.          Nevertheless, in 2016, researchers at John Hopkins Medicine concluded that over 250,000 Americans die each year from medical error.

11.          The John Hopkins study identified medical error as the third-leading cause of death in the United States, behind only heart-disease and cancer.

12.          It is now generally accepted that medical errors result largely from system failures.

13.          That is, medical errors are not caused solely by “bad apple” individual clinicians directly involved in patient care.

14.          Instead, medical errors are often the result of systemic failures attributable to failures of healthcare management rather than poor decisions by clinicians.

15.          The system and processes created by management establish the quality of outcomes independent of workers’ actions. Workers can only use the system they have been given.

16.          As one authority[8] explains:

17.          Several systemic sources of medical error are well recognized. They include:

a.    Failure to identify, create, implement, or enforce necessary protocols.

b.    Failure to train, supervise, or support healthcare providers, especially lower-ranking and less-experienced providers.

c.     Leadership failures leading to lack of teamwork and communication.

d.    Flaws in procedures meant to prevent breakdowns in communication. 

e.     Defects in procedures for the handoff of patient care.

f.      Understaffing, particularly overnight, weekends, and holidays.

g.    Problems with morale — from overwork, understaffing, unfair employment practices, and poor management.

h.    Shortages of equipment, instruments, supplies, or medications.

i.      Gaps in the systems for preventing medication mix-ups and delays.

j.      Failure to build a culture that values patient advocacy — for example, failing to encourage providers to speak out on patient-safety issues.

k.    Failing to create mechanisms to escalate patient-safety issues in real-time, without fear of retaliation. 

l.      A culture that discourages the recognition and remediation of errors. A culture that condones incompetence, sloppiness, laziness, or apathy.

m.  Flaws in procedures for credentialing providers.

n.    Failure to implement and enforce effective procedures for triggering and responding to automatic emergency medical records (“EMR”) alerts.

18.          The Joint Commission defines a culture of safety as the collection of “beliefs, values, attitudes, perceptions, competencies, and patterns of behavior that determine the organization’s commitment to quality and patient safety.” (Joint Commission, Issue 57, March 1, 2017.)

19.          A culture of safety includes the perceived freedom of people to speak up when something doesn’t fit with the goals of safety and quality.

Background: Healthcare Management Principles

20.          Managing a healthcare organization differs from treating patients. Management is a separate discipline, a separate function.

21.          The management of healthcare organizations is heavily populated by individuals who are not licensed physicians or nurses.

22.           The management of healthcare organizations is heavily populated by individuals who are not “professionals” as defined by OCGA 9-11-9.1.

23.          Broad categories of healthcare managers or administrators are not licensed physicians or nurses. For example, to become a CPHQ (a Certified Professional in Healthcare Quality) does not require being a physician or nurse.  Nor does becoming a CPPS (a Certified Professional in Patient Safety). 

24.          In short, healthcare organizations have a great many non-licensed managers or administrators — outside the category of “professional” within the meaning of OCGA 9-11-9.1 — who nonetheless have important roles in managing healthcare quality and patient safety.

25.          Managers and administrators of healthcare organizations (including hospitals) are responsible for acting affirmatively to (a) protect patient safety and (b) prevent systemic failures enabling individual medical error.

26.          Managers and administrators are responsible for the systems and operational infrastructure in which licensed professionals provide treatment to patients.

27.          The core responsibilities of managers and administrators include:

a.    Structuring and executing a cohesive plan to ensure the effective and efficient delivery of services.

b.    Ensuring that financial, human, and facility resources are allocated in a manner that is consistent with the organization’s clinical priorities.

c.     Organizing the review and verification of clinical practice guidelines and quality indicators to ensure patient safety and quality of care.

d.    Organizing the creation and enactment of specific patient assessment and reporting parameters in accordance with organizational and accreditation standards.

e.     Analyzing data to identify trends of improvement or areas of concern, and maintaining processes designed to follow up on areas of concern.

f.      Coordinating performance-improvement activities, including maintaining documentation to support credentialing. 

g.    Overseeing and confirming professional and staff development.

h.    Assessing and identifying specific services, facilities, equipment, and personnel needed to address the current and future healthcare needs of the community and the funding required to provide such services.

i.      Supervising the activities of all departments, including clinical, HR, finance, operations, maintenance, and admission and scheduling.

28.          While licensed professionals may substantively develop a treatment policy relying on professional judgment, managers and administrators are responsible for implementing the policy effectively.  

29.          Managerial responsibilities thus include: promulgating the policy, ensuring that providers are trained on and understand the policy, monitoring compliance with the policy, enforcing the policy, and taking corrective action when the policy is not followed or proves ineffective.

30.          Because management and administration are distinct, managers and administrators of healthcare organizations often are not licensed professionals — a fact readily apparent from biographies and job postings for those roles. 

31.          In some cases, licensed professionals perform managerial or administrative functions within a healthcare organization, especially when officially serving in management or administrative roles.

32.          When discharging managerial or administrative duties, managers and administrators do not act as licensed healthcare providers, and do not engage in the practice of medicine, even if they also happen to be licensed professionals.

33.          Whether or not performed by licensed professionals, functions that are purely managerial or administrative include:

a.    Staffing and scheduling.

b.    Organizing the creation and implemention of systems that identify and prevent medical error, including technologies (like EMR) and effective protocols and procedures. 

c.     Organizing the training of healthcare providers and others on patient-safety and quality-assurance policies and procedures. 

d.    Providing proper supervision and support to individual providers, especially nurses and residents. 

e.     Monitoring and enforcing standards through assessments, evaluations, and audits.

f.      Taking administrative action when providers fail to comply with policies or procedures.

g.    Ensuring the competence of providers at the time of credentialing.

h.    Organizing the creation and implemention of systems that ensure operational support to patient care.

i.      Maintaining provider morale through institutional transparency, accountability, and responsiveness.

34.          These functions and others do not involve, much less require, medical training or judgment.

35.          Instead, they involve and require managerial or administrative ability.

36.          While managers and administrators work with licensed professionals, the ultimate responsibility for patient safety rests with management and administration. The buck stops there.

Negligent Management & Administration in this Case

37.          The complaints in this case provide far more detail than the Civil Practice Act requires. However, Plaintiffs do not waive or relinquish the protections of the CPA’s requirement for mere notice pleading. The specifications of negligence included in this Complaint may not be exhaustive. Plaintiffs reserve the right to present evidence at trial of negligence not specified here.

38.          Emory Healthcare, Inc. and The Emory Clinic, Inc. performed one or more of the following general managerial duties negligently:

a.    Putting procedures in place to make sure all medical providers at the facility are competent in the tasks they perform.

b.    Putting procedures in place to make sure all mid-level medical providers (e.g., physician assistants and nurse practitioners) are properly supervised by physicians.

c.     Creating a culture of patient safety — that is, a culture of diligence, attention to potential dangers to the patient, empowerment by every member of the team to raise and escalate safety issues in real time, and recognition and remediation of errors after they occur.

d.    Policy-related tasks (discussed below).

39.          In connection with policies concerning medical matters, some tasks require medical expertise, and some tasks are purely managerial — matters of organization, administration, training, enforcement, etc. For example, deciding the content of a policy on a medical issue generally requires medical judgment and therefore is not a purely managerial function.

40.          Purely managerial functions concerning medical policies include:

a.    Organizing a review to determine what policies are needed to govern the conduct of the medical practice.

b.    Organizing a process to create the needed policies.

c.     Promulgating the policies, to make sure all the relevant people know about them.

d.    Organizing training on the policies, to make sure all the relevant people understand how to apply them.

e.     Monitoring compliance with policies and enforcing them.

f.      Ensuring that care at satellite facilities reflect the same standards as the main facility, to the extent reasonably practicable.

41.          As for policy-related tasks, Emory Healthcare, Inc. and The Emory Clinic, Inc. performed one or more purely managerial duties negligently with respect to policies concerning:

a.    Determination of a stroke patient’s time of last known well

b.    Neurological assessments for patients admitted for observation after a transient ischemic attack

c.     Communication of critical information at patient hand-offs

d.    Communication of critical information between attending hospitalists and consulting physicians

e.     Criteria for calling a Code Stroke

f.      Criteria for administering TPA to a stroke patient

g.    Creation of medical records

h.    Disclosure of medical error to the patient.

42.          Emory Healthcare, Inc. and The Emory Clinic, Inc. acted negligently in one or more of the purely managerial or administrative functions described above.

43.          The managerial and administrative negligence of Emory Healthcare, Inc. and The Emory Clinic, Inc. caused harm to Stefan Lane and Janet Lane. Stefan and Janet are entitled to recover from Emory Healthcare, Inc. and The Emory Clinic, Inc. for that harm.

Damages

44.          Plaintiffs incorporate by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

45.          As a direct and proximate result of the Defendants’ individual and collective conduct, Plaintiffs are 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 Plaintiffs suffered, including physical, emotional, and economic injuries.

46.          WHEREFORE, Plaintiffs demand 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.             The expenses of litigation, including attorney fees;

c.              All costs of this action;

d.             Punitive Damages; and

e.              Such other and further relief as the Court deems just and proper.

November 18, 2021

Respectfully submitted,

/s/ Lloyd N. Bell                             

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

Attorneys for Plaintiffs

In the State Court of DeKalb County

State of Georgia

Stefan Lane

Janet Lane,

                        Plaintiffs,

— versus —

Emory Healthcare, Inc.

The Emory Clinic, Inc.

Principals of the Individual Defendants 1-5

Abrar Chaudhry, MD

Ryan A. Marten, MD

Bryan Lee Mays, RN

Charice Jordan, PA-C

Mahmoud Obideen, MD

John/Jane Doe 1-4,

                        Defendants

Civil Action

File No. 19 A 77517

HON. ALVIN WONG

Certificate of Service

            I hereby certify that I have served a copy of the within and foregoing PLAINTIFF’S THIRD AMENDED COMPLAINT upon all parties to this proceeding by electronically filing the same with the Clerk of Court using Odyssey eFileGA which will send electronic notification to counsel of record as follows: 

David Ladner, Esq.

Alan Payne, Esq.

Bendin Sumrall & Ladner, LLC

One Midtown Plaza, Suite 800

1360 Peachtree Street NE

Atlanta, GA 30309

November 18, 2021

BELL LAW FIRM

/s/ Lloyd N. Bell                             

Lloyd N. Bell

Georgia Bar No. 048800

1201 Peachtree St., NE, Suite 200

Atlanta, GA 30361

404-249-6768(tel)

Bell@Belllawfirm.com

[1] This is actually the second amendment to the complaint in this case, not the third. On December 22, 2020, we filed the first amendment to the original complaint. We erroneously labeled that as the “Second Amended Complaint.” We have named the present document as the “Third Amended Complaint,” in order to avoid two similarly named but distinct documents.

[2] See OCGA 9-11-9.1(a) and (g). See also Gillis v. Goodgame, 262 Ga. 117 (1992): “[T]he affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in [statutes]; Upson County Hospital v. Head, 246 Ga. App. 386 (2000): “To the extent that the hospital agents or employees are not ‘professionals,’ as defined [by statute], the affidavit requirements of OCGA § 9-11-9.1 do not apply. Thus, [plaintiff] may maintain her action against the hospital with regard to the negligence of any nonprofessionals.”

[3] See Creel v. Cotton States, 260 Ga. 499 (1990): “[T]here are instances in which actions performed by or under the supervision of a professional are nevertheless not professional acts constituting professional malpractice, but, rather, are acts of simple negligence which would not require proof by expert evidence.”; Upson County Hospital v. Head, 246 Ga. App. 386 (2000): “[T]o the extent that any acts of negligence by professionals do not involve professional malpractice and are merely clerical, administrative, or routine, [plaintiff] was not required to file a 9.1 expert affidavit to maintain her claim.”

[4] Lowndes County Health Services, v. Copeland, 352 Ga. App. 233, 239 (2019).

[5] Jenkins County Hospital Authority v. Landrum, 206 Ga. App. 753, 753 (1992).

[6] Smith v. North Fulton Medical Center, 200 Ga. App. 464, 466 (1991).

[7] Dent v. Memorial Hospital, 270 Ga. 316, 316-18 (1998).

[8] Buchbinder, Sharon B. and Shanks, Nancy H., Introduction to Health Care Management, Second Edition, Jones & Bartlett Learning, LLC, 2012, at Chapter 7.