In the State Court of Gwinnett County

State of Georgia

GLENDA YARBROUGHIndividually and as Representative of the Estate of RONALD YARBROUGH, deceased,

                  Plaintiff,

— versus —

GWINNETT HOSPITAL SYSTEM, INC.

CARDIOVASCULAR GROUP, P.C.

LANCE B. FRIEDLAND, MD,

COLON AND RECTAL CLINIC, LLC

KOTA VENKATESH, MD

JOHN/JANE DOE 3-10,

                  Defendants

CIVIL ACTION

FILE NO. 20-C-02832-S4

Hon. Ronda Colvin Leary

JURY TRIAL DEMANDED

Plaintiff’s Second Amended Complaint for Damages

Summary of Amendment

1.             Plaintiff hereby amends the prior complaints to add a cause of action for corporate negligence by GWINNETT HOSPITAL SYSTEM, INC., CARDIOVASCULAR GROUP, P.C., and COLON AND RECTAL CLINIC, LLC (the “Corporate Defendants”).

2.             This Second Amended Complaint incorporates the prior complaints in this case.  

Corporate Negligence

Nature of this Claim & Exclusion of Professional Malpractice

3.             In addition to the medical negligence described in the previously filed complaints, the Corporate Defendants 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.

4.             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]

5.             The courts have 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]

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

7.             This Count is limited to acts of negligence that fall outside the scope of OCGA 9-11-9.1. To the extent the trial Court and appellate courts ultimately determine that an act of negligence in this case 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[7] 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.          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. 

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

30.          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.

31.          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.

32.          Additionally, 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.

33.          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.

34.          The functions described above 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.          The Corporate Defendants 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 surgeries are performed only after all necessary medical clearances are obtained.

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.

39.          As for policy-related tasks more specifically, the Corporate Defendants performed one or more purely managerial duties negligently with respect to policies concerning:

a.    Medical clearance for surgeries

b.    Communication of critical information among providers

c.     Creation of medical records

d.    Disclosure of medical error to the patient.

40.          The Corporate Defendants acted negligently in one or more purely managerial or administrative functions.

41.          The managerial and administrative negligence of the Corporate Defendants caused harm to Ron Yarbrough and Glenda Yarbrough. Plaintiffs are entitled to recover from the Corporate Defendants for that harm.

Damages

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

43.          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.

44.          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, including attorneys’ fees;

d.    Punitive damages; and

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

November XX, 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 Gwinnett County

State of Georgia

GLENDA YARBROUGH Individually and as Representative of the Estate of RONALD YARBROUGH, deceased,

                  Plaintiff,

— versus —

GWINNETT HOSPITAL SYSTEM, INC.

CARDIOVASCULAR GROUP, P.C.

LANCE B. FRIEDLAND, MD

COLON AND RECTAL CLINIC, LLC

KOTA VENKATESH, MD

JOHN/JANE DOE 3-10,

                  Defendants.

CIVIL ACTION

FILE NO. 20-C-02832-S4

Hon. Ronda Colvin Leary

Certificate of Service

The undersigned has served this Plaintiff’s Second Amended Complaint for Damages upon all parties to this proceeding by electronically filing the same with the Clerk of Court using Odyssey eFileGA as follows:

Paul Weathington, Esq.

J Gabriel Banks Esq.

WEATHINGTON FIRM

191 Peachtree Street, NE, Suite 3900

Atlanta, GA 30303

Carol O Michel, Esq.

John K Train IV, Esq.

Weinberg Wheeler Hudgins, Gunn & Dial, LLC

3344 Peachtree Rd NE, Suite 2400

Atlanta, GA 30316

November XX, 2021

BELL LAW FIRM

/s/ Lloyd N. Bell                             

Lloyd N. Bell

Georgia Bar No. 048800

Attorney for Plaintiff

1201 Peachtree St NE, Suite 2000Atlanta, GA 30361

(tel) 404-249-6768

Bell@ BellLawFirm.com

[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.