In the State Court of Fulton County

State of Georgia

MYUNG JA OH Individually, and

SUSAN OH, as Administrator of the Estate of BYUNG (BEN) OH, deceased,

                  Plaintiff,

— versus —

WELLSTAR ATLANTA MEDICAL CENTER, INC.

WELLSTAR HEALTH SYSTEM, INC.

ADEFISAYO M. ODUWOLE, MD

MOREHOUSE HEALTHCARE, INC.

BARRY JEFFRIES, MD

DIAGNOSTIC IMAGING SPECIALISTS, P.A.

AMY D. WYRZYKOWSKI, MD

WELLSTAR MEDICAL GROUP, LLC

KHALID IQBAL, MD

ATLANTA SOUTH NEPHROLOGY PC

THOMAS W. SCHOBORG, MD

ATLANTA UROLOGICAL GROUP, P.C.

JOHN P. OUDERKIRK, MD

AIDS HEALTHCARE FOUNDATION (INC)

JOHN/JANE DOE 1-10,

                  Defendants

CIVIL ACTION

FILE NO. 20-EV-002508

Hon. Myra Dixon

Plaintiffs’ Fourth Amended Complaint for Damages

Summary of Amendment

1.             This Fourth Amended Complaint incorporates the entirety of the original Complaint and the First, Second, and Third Amended Complaints in this action (with the modifications made by successive amendments, including this amendment).

2.             This amendment adds a claim for ordinary negligence against Wellstar Atlanta Medical Center, Inc. and Wellstar Health System, Inc.

3.             The newly asserted claim for ordinary negligence arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.

4.             The newly asserted claim for ordinary negligence therefore relates back to the date of the original pleading.

5.             The original Complaint in this case included Wellstar Health System, Inc. (“WHS”) as a Defendant.

6.             WHS was timely served.

7.             In the First Amended Complaint, Plaintiffs withdrew a claim against WHS for vicarious liability for negligence by certain nurses.

8.             WHS has not been removed from this case as a Defendant.

General Principles of Hospital Management & Patient Safety

9.             In 1999, the Institute of Medicine estimated that 44,000 to 98,000 Americans died each year from medical errors.

10.          Since then, the healthcare industry, academia, and federal and state policymakers have started to focus on patient safety.

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

12.          The John Hopkins study revealed that medical error ranks as the third-leading cause of death in the United States, behind only heart disease and cancer, and ahead of respiratory disease.

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

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

15.          Medical errors generally result from a combination of failures by multiple persons within an organization, rather than from individual failure alone.

16.          Leaders, managers, and administrators of hospitals and other healthcare organizations are responsible for acting affirmatively to prevent systemic failures that enable individual error.

17.          Leaders, managers, and administrators owe patients an ordinary duty to safeguard their safety.   

18.          Leaders, managers, and administrators do not require professional licensing.

19.          While leaders, managers, and administrators work with and through licensed healthcare professionals, the ultimate responsibility for patient safety rests with leaders, managers, and administrators. The buck stops with them.

20.          Certain systemic sources of medical error are well recognized. They include, in no particular order:

a.    The failure to implement or enforce protocols for various aspects of patient care.

b.    Defects in the policies and procedures for the handoff of a patient’s care.

c.     The failure to implement or enforce protocols for teamwork and communication.

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

e.     The failure to train, supervise, and support healthcare providers, especially lower-ranking and less-experienced providers such as medical residents and nurses.

f.      Gaps in the systems for preventing medication mix-ups.

g.    Inadequate staffing, particularly overnight, weekends, and holidays.

h.    Absence of mechanisms to escalate patient-safety issues in real time, without fear of retaliation. 

i.      A culture that punishes providers who speak out on patient-safety issues.

j.      A culture that discourages the recognition and remediation of errors.  

k.    The failure to build a culture that values and rewards patient advocacy.

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

m.  Flaws in procedures for credentialing competent providers.

21.          Safeguarding patient safety thus requires, among other things:

a.    Ensuring that systems are in place to avoid known sources of medical error. Such systems include technologies (like electronic medical-record systems) as well as effective policies, protocols, and practices.

b.    Ensuring that individual providers understand and are trained on policies, protocols, and practices, and are prepared to implement them.

c.     Ensuring proper training, supervision, and support of individual providers, particularly nurses and residents.

d.    Ensuring compliance through assessments, evaluations, and audits.

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

f.      Maintaining provider morale through (among other things) institutional transparency, accountability, and responsiveness.

g.    Cultivating a culture of safety that (i) vigilantly mitigates systemic sources of medical errors and (ii) acknowledges and remediates medical errors to prevent their recurrence.

Second Cause of Action: Ordinary Negligence by Wellstar Atlanta Medical Center, Inc. (“WAMC”)[1]

22.          Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

23.          Wellstar Atlanta Medical Center, Inc. (“WAMC”) is partly responsible for the management and administration of Wellstar Atlanta Medical Center Hospital at 303 Parkway Drive NE, Atlanta GA 30312-1212 (“the Hospital”).

24.          Wellstar Health System, Inc. (“WHS”) owns WAMC.

25.          WHS is the sole Member of WAMC.

26.          The direction and management of the affairs of WAMC and the control and disposition of its properties and funds is vested in part in the Board of Trustees of WHS.

27.          WHS pays the salaries of multiple trustees, officers, and other employees of WAMC.

28.          Multiple trustees, officers, and other nominal employees of WAMC receive no pay from WAMC but are paid by WHS.

29.          WHS supervises the operations and activities of WAMC.

30.          WHS participates in the management of the Hospital.

31.          The State of Georgia does not require or issue a professional license to serve on the Board of Trustees of a hospital.

32.          The State of Georgia does not require or issue a professional license to serve as an officer of a hospital.

33.          For multiple leadership, management, and administrative roles in a hospital, the State of Georgia does not require or issue a professional license.

34.          Multiple members of the Board of Trustees of WAMC have no professional license.

35.          Multiple members of the Board of Trustees of WHS have no professional license.

36.          Multiple members of the senior management/administration of WAMC have no professional license.

37.          Multiple members of the senior management/administration of WHS have no professional license.

38.          WAMC owed the patients of the Hospital an ordinary duty to manage the healthcare services at the Hospital to safeguard patients against medical error.

39.          WHS owed the patients of the Hospital an ordinary duty to manage the healthcare services at the Hospital to safeguard patients against medical error.

40.          WAMC, through its leaders, managers, and administrators, breached that duty, by failing to implement practices sufficient to safeguard patients against medical error.

41.          WHS, through its leaders, managers, and administrators, breached that duty, by failing to implement practices sufficient to safeguard patients against medical error.

42.          The repeated confounding failures by the individual Defendants and other individuals not named as Defendants reveal and exemplify those systemic failures.

43.          The systemic breaches by WAMC and WHS contributed to Byung Oh’s injuries. 

44.          The systemic breaches by WAMC and WHS include but are not necessarily limited to the following. The specific breaches identified below are not intended as an exhaustive list:

i.          Task: Institute supervision and support for residents

Requirement

45.          Hospital management and attending physicians are responsible for ensuring that residents are properly supervised and supported. Failure to do so endangers patients.

46.          The overall responsibility lies with hospital management, who need not be licensed physicians or nurses. The managers must recruit the efforts of the hospital’s medical and nursing staff.

Violation

47.          The clinical failings in the treatment of Byung Oh indicate that the hospital management and supervising physicians failed to act reasonably to ensure proper supervision and support for the resident physicians involved in the treatment of Byung Oh.

48.          This violation caused harm to Byung Oh.

ii.        Task: Institute patient safety systems

Requirement

49.          Hospital management, working through clinical staff, is responsible for developing and implementing patient safety systems. This includes, among other things, leading efforts to create protocols to avoid or mitigate known risks, efforts to promulgate and train staff concerning such protocols, efforts to monitor compliance, and efforts to remediate deficiencies.

Violation

50.          The clinical failings in the treatment of Byung Oh indicate that the hospital management failed to act reasonably to develop and implement patient safety systems.

51.          This violation caused harm to Byung Oh.

iii.     Task: Institute medication reconciliation procedures

Requirement

52.          Hospital management, working through clinical staff, is responsible for developing and implementing systems to ensure proper recording of patient medications, both for new patients and for patients transferred between organizational units at the hospital.

Violation

53.          The multiple failures to properly record Byung Oh’s home medications indicate that the hospital management failed to act reasonably to develop and implement proper medication reconciliation systems.

54.          This violation caused harm to Byung Oh.

iv.       Task: Institute communication protocols

Requirement

55.          Hospital management, working through clinical staff, is responsible for developing and implementing communication protocols to ensure proper communication among various medical service providers responsible for a patients.

56.          Such protocols must ensure that potentially critical medical problems are brought to the attention of the responsible service provider in a timely manner.

57.          Such protocols must ensure follow-up where potentially critical medical problems have not been addressed timely.

Violation

58.          The persistent failure to investigate the nature and cause of the large volume of discolored fluid draining from the suprapubic catheter placed in Byung Oh indicates that hospital management failed to implement proper communication protocols.

59.          This violation caused harm to Byung Oh.

v.         Task: Institute protocols to prevent hospital-acquired infections

Requirement

60.          Hospital management, working through clinical staff, is responsible for developing and implementing protocols to prevent hospital-acquired infections.

61.          Such protocols must provide, among other things, for hygiene, sterilization, and invasive-procedure routines that minimize the risk of hospital-acquired infections.

Violation

62.          The persistent hospital-acquired infections suffered by Byung Oh indicates that hospital management failed to implement proper protocols to prevent hospital-acquired infections.

63.          This violation caused harm to Byung Oh.

vi.      Task: Institute protocols to ensure proper indications for invasive procedures or operations

Requirement

64.          Hospital management, working through clinical staff, is responsible for developing and implementing protocols to ensure proper indications for invasive procedures or operations.

Violation

65.          The repeated ordering of a suprapubic catheter for Byung Oh, without a proper indication, indicates that hospital management failed to implement proper protocols to ensure proper indications for invasive procedures or operations.

66.          This violation caused harm to Byung Oh.

vii.    Task: Institute protocols to ensure proper investigation of the nature and cause of grossly abnormal drainage from a patient’s body

Requirement

67.          Hospital management, working through clinical staff, is responsible for developing and implementing protocols to ensure proper patient care, including investigation of the nature and cause of grossly abnormal drainage from a patient’s body.

Violation

68.          The failure by multiple physicians over several days to investigate the nature and cause of the grossly abnormal drainage from the suprapubic catheter in Byung Oh indicates that the Hospital management failed to develop and implement protocols to ensure proper patient care, including investigation of the nature and cause of grossly abnormal drainage from a patient’s body.

69.          This violation caused harm to Byung Oh.

*   *   *

70.          These violations do not necessarily exhaust the failures by WAMC and WHS. Plaintiffs reserve their right to identify other instances of ordinary negligence by WAMC and WHS.

71.          Ordinary negligence by WAMC and WHS caused harm to Byung Oh and contributed substantially to his untimely death.

72.          WAMC and WHS are therefore liable to Byung Oh’s estate for the harm suffered before his death. WAMC and WHS are also liable for Byung Oh’s wrongful death.

Damages

73.          Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

74.          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.

75.          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; and

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

September 13, 2021

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

In the State Court of Fulton County

State of Georgia

MYUNG JA OH Individually, and

SUSAN OH, as Administrator of the Estate of BYUNG (BEN) OH, deceased,

                  Plaintiff,

— versus —

WELLSTAR ATLANTA MEDICAL CENTER, INC.

WELLSTAR HEALTH SYSTEM, INC.

ADEFISAYO M. ODUWOLE, MD

MOREHOUSE HEALTHCARE, INC.

BARRY JEFFRIES, MD

DIAGNOSTIC IMAGING SPECIALISTS, P.A.

AMY D. WYRZYKOWSKI, MD

WELLSTAR MEDICAL GROUP, LLC

KHALID IQBAL, MD

ATLANTA SOUTH NEPHROLOGY PC

THOMAS W. SCHOBORG, MD

ATLANTA UROLOGICAL GROUP, P.C.

JOHN P. OUDERKIRK, MD

AIDS HEALTHCARE FOUNDATION (INC)

JOHN/JANE DOE 1-10,

                  Defendants

CIVIL ACTION

FILE NO. 20-EV-002508

Hon. Myra Dixon

Certificate of Service

Plaintiff’s counsel has served PLAINTIFF’S FOURTH AMENDED COMPLAINT FOR DAMAGES on all counsel of record, by filing the document through the Court’s electronic-filing platform.

September 13, 2021

/s/ Lloyd N. Bell                             

Georgia Bar No. 048800

[1] A claim of negligence against hospital managers is not a claim of professional negligence against a licensed professional (or based on negligence by a licensed professional). Therefore such a claim is not subject to OCGA 9-11-9.1 or 24-7-702(c). Rather, such a claim is for ordinary negligence subject to ordinary notice pleading.

OCGA 9-11-9.1 governs claims for professional negligence:

(i)             against “A professional licensed by the State of Georgia and listed in subsection (g) of this Code section,”

(ii)           against a business entity “based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section,” and

(iii)         against a health care facility “based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of this Code section.”

Hospital directors or trustees, hospital management, and hospital administrators are not required to be licensed and are not listed in OCGA 9-11-9.1(g).