In the State Court of Gwinnett County

State of Georgia

WILLIE EVA SAMPSON, as Guardian of DOROTHY ANN ANTHONY,

                  Plaintiff,

— versus —

DOCTORS HOSPITAL OF AUGUSTA, LLC

ADAM M. ROSS, MD

JONATHAN PRESTON, MD

JAMES A. CATO, MD

EKMINE WIJESINGHE, MD

JDG CIRCLE INPATIENT SERVICES LLC

CSRA MEDICAL ASSOCIATES

JOHN/JANE DOE 1-10,

                  Defendants

CIVIL ACTION

FILE NO. 20-C-07088-S5

JURY TRIAL DEMANDED

Hon. Pamela South

Plaintiff’s First Amended Complaint

Nature of the Action & Amendment

53.          This action arises out of injuries to Dorothy Anthony in October and November 2018 from the negligence of the Defendants.

54.          This First Amended Complaint incorporates, without restating, all the allegations and claims included in Plaintiff’s original Complaint for Damages.

55.          This amendment adds a claim for corporate negligence in the management and administration of Doctors Hospital of Augusta.

Count 2 – Negligence by Doctors Hospital of Augusta, LLC

Nature of this Claim & Exclusion of Professional Malpractice

56.          In addition to the medical malpractice described in the previously filed complaints, Doctors Hospital of Augusta, LLC committed negligence that does not come within the definition of “professional malpractice” of OCGA 9-11-9.1 and is not subject to the affidavit requirement of that statute.

57.          In a healthcare setting where professional malpractice 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),[1] and

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

58.          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;[3] failure to have appropriate equipment;[4] hospital employees’ failure to follow instructions;[5] a nurse’s failure to activate an alarm as ordered by a doctor.[6]

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

60.          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

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

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

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

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

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

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

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

68.          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.

69.          As one authority[7] explains:

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

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

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

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

h.    Poorly designed systems for ordering and administering medications.

i.      Organizational cultures that fail to value patient advocacy — for example, failing to encourage providers to speak out on patient-safety issues.

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

k.    Organizational cultures that discourage the recognition and remediation of errors. Cultures that condone incompetence, sloppiness, laziness, or apathy.

l.      Flaws in procedures for credentialing providers.

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

71.          The Joint Commission — the primary credentialing organization for hospitals — 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.)

72.          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

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

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

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

76.          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). 

77.          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.

78.          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.

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

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

c.     Ensuring that financial, human, and facility resources are allocated in a manner consistent with clinical priorities.

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

e.     Organizing the creation and enactment of patient assessment and reporting parameters.

f.      Analyzing data to identify areas of concern, and maintaining processes designed to follow up on them.

g.    Coordinating performance-improvement activities. 

h.    Overseeing and confirming staff development.

i.      Assessing and identifying services, facilities, and personnel to address the healthcare needs of the patient population.

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

82.          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.

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

84.          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.

85.          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 to prevent medical error, including technologies as well as protocols and procedures.

c.     Organizing the training of healthcare providers and others on policies and procedures. 

d.    Providing supervision and support to 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.

86.          In connection with policies concerning medical matters, some tasks require medical expertise, and some tasks are purely managerial. Deciding the content of a policy on a medical issue generally requires medical judgment and therefore is not a purely managerial function. Other matters are purely managerial.

87.          Purely managerial functions concerning medical policies include:

a.    Organizing a review to determine what policies are needed.

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.

88.          The functions described above, and others, do not involve, much less require, medical training or judgment.

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

90.          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

91.          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.

92.          Doctors Hospital of Augusta, LLC 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.    Organizing the creation and implementation of procedures for preventing pressure wounds, and treating pressure wounds promptly after they are discovered.

c.     Organizing the creation and implementation of procedures procedures for communicating information about new or worsening pressure wounds.

d.    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.

93.          Doctors Hospital of Augusta, LLC acted negligently in one or more of the purely managerial or administrative functions described above.

94.          The managerial and administrative negligence of Doctors Hospital of Augusta, LLC caused harm to Dorothy Anthony. Dorothy, through her Gaurdian, is entitled to recover from Doctors Hospital of Augusta, LLC for that harm.

Damages

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

96.          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.

97.          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.

November 22, 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

Thomas D. Trask

Georgia Bar No.

TRASK LAW FIRM

One Atlantic Center

1201 W. Peachtree Street NW

Suite 2300

Atlanta, GA 30309

(404) 795-5010

trask@trasklawfirm.com

Attorneys for Plaintiff

In the State Court of Gwinnett County

State of Georgia

WILLIE EVA SAMPSON, as Guardian of DOROTHY ANN ANTHONY,

                  Plaintiff,

— versus —

DOCTORS HOSPITAL OF AUGUSTA, LLC

ADAM M. ROSS, MD

JONATHAN PRESTON, MD

JAMES A. CATO, MD

EKMINE WIJESINGHE, MD

JDG CIRCLE INPATIENT SERVICES LLC

CSRA MEDICAL ASSOCIATES

JOHN/JANE DOE 1-10,

                  Defendants

CIVIL ACTION

FILE NO. 20-C-07088-S5

Hon. Pamela South

Certificate of Service

The foregoing document, PLAINTIFF’S FIRST AMENDED COMPLAINT, has been served on all counsel of record through the Court’s e-filing system.

November 22, 2021

/s/ Lloyd N. Bell                    

Georgia Bar No. 048800

[1] 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.”

[2] 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.”

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

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

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

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

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