In the State Court of Athens-Clarke County

State of Georgia

TRUONG VANG Individually and as Administrator of the Estate of KANG MOUA, deceased,

                  Plaintiff,

— versus —

ST. MARY’S HEALTH CARE SYSTEM, INC.

ATHENS-CLARKE EMERGENCY SPECIALISTS, P.C.

TROY E JOHNSON, M.D., P.C.

TROY E. JOHNSON, MD

JOHN/JANE DOE 1-10,

                  Defendants

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION

FILE NO. ___________

JURY TRIAL DEMANDED

Plaintiff’s Complaint for Damages

Nature of the Action

1.             This medical malpractice, wrongful-death action arises out of medical services negligently performed on Kang Moua on August 10, 2019.

2.             Plaintiff Troung Vang is the husband of Kang Moua, deceased.

3.             At the time of her death, Kang Moua was 38 years old with a life expectancy of an additional 44 years.[1]

4.             Kang was survived by her husband and their two daughters.

5.             As Adminstrator, Plaintiff Troung Vang asserts a claim on behalf of the estate of Kang Moua for harm she suffered before she died.

6.             Plaintiff also asserts a wrongful-death claim pursuant to OCGA Title 51, Chapter 4.

7.             Pursuant to OCGA § 9-11-9.1, the Affidavit of Peter Mowschenson, MD, and the Affidavit of Judith Climenson, RN are attached hereto as Exhibits 1 and 2. This Complaint incorporates the opinions and factual allegations contained in those affidavits.

8.             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.

Parties, Jurisdiction, and Venue

9.             The Administrator of the Estate of Kang Moua (for purposes of jurisdiction) is a citizen of Georgia. At the time of her death, Kang Moua was a citizen of Georgia. Pursuant to 28 USC 1332(c), therefore, the Administrator of her estate is a citizen of Georgia.[2]

10.          Truong Vang is now a citizen of California, where he lives with his and Kang Moua’s two daughters. Truong submits to the jurisdiction and venue of this Court.

11.          Defendant St. Mary’s Health Care System, Inc. (“SMH”) is a Georgia corporation with its Registered Office in Athens-Clarke County. SMH may be served through their Registered Agent, D. Montez Carter, at 1230 Baxter Street, Athens, Georgia 30606.

12.          Pursuant to OCGA §§ 14-2-510 and 14-3-510,[3] SMH is subject to venue in this Court because (a) it maintains its registered office in Athens-Clarke County and (b) the cause of action originated in Athens-Clarke County and the corporation has an office and transacts business in that county.

13.          Plaintiff believes that at all relevant times, SMH was the employer of the nurses and resident whose conduct is at issue in this lawsuit. However, if any other entity was the principal of the nurses and resident whose conduct is at issue, 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.

14.          SMH has been properly served with this Complaint.

15.          SMH 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.

16.          Defendant Athens-Clarke Emergency Specialists, P.C. (“ACES”) is a Georgia professional corporation with its Registered Office in Athens-Clarke County. ACES may be served through their Registered Agent, Neil Allan Priest, at 1230 Baxter Street, Athens, Georgia 30606.

17.          Pursuant to OCGA 14-2-510 and OCGA 14-7-2 and -3,[4] ACES is subject to venue in this Court because (a) it maintains its registered office in Athens-Clarke County and (b) the cause of action originated in Athens-Clarke County and the corporation has an office and transacts business in that county.

18.          Plaintiff believes that at all relevant times, ACES was the employer of the Emergency Department physician whose conduct is at issue in this lawsuit (whom we believe to be Defendant Troy E. Johnson). However, if any other entity was the principal of the ED physician, 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.

19.          ACES has been properly served with this Complaint.

20.          ACES 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.

21.          Defendant Troy E Johnson, M.D., P.C. (“PC”) is a Georgia professional corporation with its Registered Office in Lumpkin County. It may be served through its Registered Agent, Joe H. Gailey at 52 Clay Creek Overlook, Dahlonega, GA 30533.

22.          Pursuant to OCGA 9-10-31, PC is subject to venue in this Court because its co-defendant, ACES, is subject to venue in this Court.[5]

23.          Plaintiff believes that at all relevant times, PC was a principal of Defendant Troy E. Johnson. However, if any other entity was the principal of Dr. Johnson, 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.

24.          PC has been properly served with this Complaint.

25.          PC 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.

26.          Defendant Troy E. Johnson, MD, is a citizen of Georgia, residing in Oconee County. He may be served with process at his residence: 4091 Price Mill Road, Bishop, Georgia 30621.

27.          Pursuant to OCGA 9-10-31, Dr. Johnson is subject to venue in this Court because his co-defendant, ACES, is subject to venue in this Court.

28.          At all times relevant to this Complaint, Dr. Johnson acted as an employee or agent of ACES.

29.           At all times relevant to this Complaint, Dr. Johnson acted as an employee or agent of PC.

30.          Dr. Johnson has been properly served with this Complaint.

31.          Dr. Johnson 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.          Defendants John/Jane Doe 1-10 are those yet unidentified individuals and/or entities who may be liable, in whole or part, for the damages alleged herein. Once served with process, John/Jane Doe 1-10 are subject to the jurisdiction and venue of this Court.

33.          This Court has subject matter jurisdiction, and venue is proper as to all Defendants in this Court.

Facts

34.          Kang Moua was a 38 year old otherwise healthy woman who underwent total thyroidectomy with neck dissection by Dr. Blake Kimbrell on 8/9/2019. The operation was performed for a diagnosis of papillary thyroid carcinoma which involved the left cervical lymph nodes.

35.          Following an uncomplicated operation, Mrs. Moua was taken to the PACU where she remained stable, and then transferred to a regular floor to recover.

36.          Pathology reports papillary thyroid carcinoma pT3 PN1b.

37.          Postoperative bleeding following thyroidectomy is a well recognized, uncommon complication of the operation.

38.          A postoperative hematoma in the neck is a potentially life-threatening emergency, because the hematoma may lead to compression and/or swelling of the trachea (“windpipe”) and cut off the patient’s air supply.

39.          If a person goes without an air supply for more than a couple minutes, he or she may suffer permanent, catastrophic brain injury or death.

40.          In the event of a postoperative hematoma in the neck that is threatening the airway, the sutures must be removed in an effort to reduce the hematoma.

41.          Removing the sutures usually provides immediate relief to the patient and restores the airway.

42.          Removing the sutures is a fundamental step in this situation and does not require any special surgical skills. Medical students, surgical residents, anesthesiologists, and emergency room physicians are all taught the importance of removing sutures in this situation.

43.          Hospital nurses are trained to remove skin sutures, and routinely do so.

44.          Immediate evacuation of the hematoma at the bedside in a patient with rapidly increasing airway compromise from a hematoma is an essential step in saving the patient’s life.

45.          In a patient who appears to have a rapidly expanding hematoma in the neck, it would be grossly negligent not to decompress the swollen wound immediately, by removing the sutures on the neck.

46.          After her thyroidectomy, at approximately 0245 on 8/10/19, Mrs. Moua was helped to the bathroom by her husband and on returning, she complained of swelling in her left neck. Her husband alerted nursing.

47.          At 0251 Mrs. Moua was noted to be unable to breathe.

48.          A Code Blue was called.

49.          A nurse from St. Mary’s fifth surgical floor called Dr. Byron Norris, the ENT physician who was on call.

50.          According to Dr. Norris’ note, he ordered the neck sutures to be removed and drove to the hospital.

51.          Fifth-floor staff also called down to the emergency room, for the assistance of the on-duty ER physician.

52.          Dr. Troy E. Johnson was the ER physician on duty that night.

53.          Dr. Johnson came up to the fifth floor to treat Kang Moua.

54.          The standard of care required the nurse who spoke to Dr. Norris either personally to remove the sutures on Mrs. Moua’s neck or, if a physician were present, to pass along Dr. Norris’ instruction to remove the sutures.

55.          On information and belief, the nurse did not do so. The nurse thereby violated the standard of care.

56.          Dr. Johnson did not remove the sutures from Mrs. Moua’s neck. Dr. Johnson thereby violated the standard of care.

57.          Dr. Johnson did not decompress the hematoma in Mrs. Moua’s neck.

58.          Dr. Johnson attempted to perform an intubation but was unable to secure the airway.

59.          Mrs. Moua went into cardiopulmonary arrest.

60.          Dr. Norris arrived on the scene, removed the sutures, allowing the hematoma to decompress, and was then able to control Mrs. Moua’s airway with an emergency tracheotomy.

61.          Dr. Kimbrell arrived on the scene shortly after Dr. Norris.

62.          Mrs. Moua was taken emergently to the operating room, where Dr. Kimbrell and Dr. Norris completed evacuation of the neck hematoma and identified some bleeding sites which were controlled.

63.          Mrs. Moua was then transferred to the ICU.

64.          Mrs. Moua suffered anoxic brain damage and died.

65.          Autopsy revealed signs of the hematoma, but no other pathology which could have accounted for her death. In particular, Mrs. Moua had only mild coronary artery disease, supporting the impression that she was otherwise healthy.

66.          Kang Moua’s death was avoidable.

67.          Pathology reports papillary thyroid carcinoma pT3 PN1b. Mrs. Moua would have subsequently been treated with radioactive iodine treatment and would have had an excellent prognosis.

68.          Absent the mismanagement of the post-operative hematoma, more likely than not, Mrs. Moua would have lived a normal life span.

Count 1 – Injuries & Wrongful Death from Professional Negligence — SMH

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

70.          The standard of care required the nurse who spoke to Dr. Norris either personally to remove the sutures on Kang Moua’s neck or, if a physician was present, to pass along to the physician the instruction to remove the sutures.

71.          On information and belief, the nurse violated that standard of care.

72.          That violation substantially contributed to the harm that befell Kang Moua.

73.          On information and belief, the nurse was an employee of SMH.

74.          SMH is vicariously liable for the negligence of the nurse, because he or she was acting within the scope of his or her agency for SMH.

75.          Mrs. Moua’s estate is entitled to recover from SMH for the physical, emotional, and economic injuries Mrs. Moua suffered before she died, including special damages such as funeral costs and other direct financial costs, as a proximate result of the Defendants’ negligence.

76.          Pursuant to OCGA Title 51, Chapter 4, Kang Moua’s wrongful death beneficiaries are entitled to recover from SMH for the value of Mrs. Moua’s life lost as a proximate result of the Defendants’ negligence.

Count 2 – Injuries & Wrongful Death from Professional Negligence — ACES, PC, Johnson

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

78.          The standard of care required Dr. Johnson to remove the sutures from Kang Moua’s neck immediately on seeing that a hematoma threatened Kang’s airway.

79.          Dr. Johnson did not remove the sutures.

80.          Dr. Johnson violated the standard of care.

81.          Dr. Johnson’s violation of the standard of care caused Kang Moua to lose her airway and to suffer anoxic brain injury that led to Kang’s death.

82.          Dr. Johnson is directly liable for his own negligence.

83.          ACES is vicariously liable for the negligence of Dr. Johnson, because he was acting within the scope of his employment with, or agency for, ACES.

84.          PC is vicariously liable for the negligence of Dr. Johnson, because he was acting within the scope of his employment with, or agency for, PC.

85.          Mrs. Moua’s estate is entitled to recover from ACES, PC, and Dr. Johnson for the physical, emotional, and economic injuries, including special damages such as funeral costs and other direct financial costs, that Mrs. Moua suffered before she died, as a proximate result of the Defendants’ negligence.

86.          Pursuant to OCGA Title 51, Chapter 4, Kang Moua’s wrongful death beneficiaries are entitled to recover from ACES, PC, and Dr. Johnson for the value of Mrs. Moua’s life lost as a proximate result of the Defendants’ negligence.

Damages

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

88.          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.

89.          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.

May XX, 2020

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] See National Vital Statistics Reports, Vol. 68, No. 7, June 24, 2019, Table 3. Life table for females: United States, 2017, available at https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_07-508.pdf.

[2] “For the purposes of this section and section 1441 of this title … (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent….”

[3] 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.”

Note: 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.

[4] Defining a “professional corporation” as a corporation organized under OCGA Title 14, Chapter 2 (and thus subject to OCGA 14-2-510).

[5] “Subject to the provisions of Code Section 9-10-31.1 [regarding forum non conveniens], 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.”