Motions: Barnett PSJ C — Daniel E. Holloway, Attorney

The Defense does not dispute the meaning of the words “immediate,” “expected,” or “serious” as used in the statutory definition of “emergency medical care” (“EMC”). Nor does the Defense challenge the qualifications of Plaintiff’s expert, Dr. Martin Lutz, a veteran Emergency Medicine physician. Simply applying the plain language of the statutory definition of EMC and crediting, as required, Dr. Lutz’s detailed affidavit, at minimum there is a jury question as to whether the medical care in this case meets the statutory definition that would trigger application of the gross negligence/clear and convincing evidence standard. That suffices to reject the Defense motion to require the jury to apply that same standard, as a matter of law. It really is that simple.

The only real question is whether Jennifer Barnett is entitled to partial summary judgment. The Defense Response calls into question several elementary principles of law. Much of this Reply therefore deals with fundamentals that one might expect to be obvious, but with somewhat of an apology, we recite the fundamentals.

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Our Supreme Court and Court of Appeals take statutory language seriously. Those appellate courts do not ignore statutory text. They do not allow a party’s focus on one part of the text to distract from a different part within a statute. They do not allow rhetorical arguments or feigned outrage to distract from a failure to meet a statutory requirement.

The Defense cannot meet the severity requirement of the statutory text here. They don’t even argue that they meet it. Instead, they ignore the text that imposes the severity requirement — “such that the absence of immediate medical attention could reasonably be expected to result in … serious jeopardy.” That language appears in the first sentence of the statutory definition of EMC. The first sentence states the requirements for moving medical care into the category of EMC. For care that does move into that category, the second sentence of the definition states the requirements for moving it back out.

The Defense ignores the first sentence of the statutory definition, and focuses exclusively on the second sentence (which is not at issue), as if that will make the first sentence vanish into thin air. But that approach is wrong, and an invitation to error. But by wishing away the language that creates the severity requirement, the Defense all but concedes that this case does not satisfy that requirement — and therefore that the regular negligence standard should apply as a matter of law.

To fill the gap in their statutory-interpretation argument, the Defense shovels in a series of mere rhetorical arguments. The Defense tells the Court once again that Jennifer Barnett has entered into multiple “seven-figure” and “eight-figure” settlements with prior defendants. The point, possibly, is to make the Court feel Jennifer has received enough money so that we should not worry too much about getting the statutory interpretation right. Similarly, the Defense emphasizes that Plaintiff did not point out the hole in their gross-negligence argument until the eve of the recently scheduled (and then continued) trial. But the response to that is not legal concern, but “So?” And again, it has nothing to do with the statutory interpretation. The Defense’s reliance on irrelevant rhetoric betrays the hollowness of their position.

The only substantive aspect of the Defense argument is their offering of two expert affidavits. But those affidavits are ambiguous and conclusory, and therefore they do not suffice to create a genuine fact dispute.

Plaintiff asks the Court to enter an order finding there is no genuine fact dispute on this issue. On the evidence, a jury cannot find that the medical care meets the statutory definition of EMC. Therefore, the jury should be instructed only on the regular negligence standard.

ARGUMENT

As a preliminary matter, the Defense disputes that it’s their burden to show the medical care in this case meets the statutory definition of EMC. That position is doctrinally incoherent. The proponent of a thing, whatever the thing is, has the burden of establishing it. Pragmatically, though, the doctrine doesn’t matter: If the factfinder is to decide the statutory definition is met, somebody has to present evidence to show that. We’re not doing that. We’ve done the opposite. Judges don’t present evidence. Juries don’t present evidence. So that leaves the Defense. If there is going to be a showing that the medical care in this case meets the statutory definition of EMC, then the Defense is going to have to make that showing. But they don’t. They can’t.

1. The statutory text creates a severity requirement, and the law rejects the Defense’s invitation to ignore it.

Plaintiff’s opening brief walks through the statutory text that creates the severity requirement, as well as the precedent in which the Supreme Court holds, unsurprisingly, that in order to apply the gross-negligence standard, the factfinder (the jury) must find that all the requirements of the statute are met.

The Defense response ignores the text at issue — the first sentence of the statutory definition. The Defense presents no argument for ignoring the text, but instead relies on a grab-bag of assorted irrelevancies and insinuations. Accordingly, we provide a necessary walkthrough of fundamental principles the Defense implicitly disputes.

The entire statutory text matters.

Plaintiff’s motion argues the medical care in this case does not meet the severity requirement created by OCGA 51-1-29.5’s language: “the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy.”

The Defense response skips over that part of the text and focuses instead on the next sentence, which deals with patients who start out in an EMC situation but who then are stabilized. The misdirection is explicit in the point heading for the Defense argument, and is shown visually by their quotation of the statutory definition — putting only the second sentence in boldface:

(Defense Response, page 12.)

To our knowledge, the Supreme Court and Court of Appeals have never been required to state the obvious point that the entire text of a statute matters; that a party cannot obviate one part of the text by focusing on another part. This case should not be the first.

Statutory language governs, even if an appellate court has not yet addressed it.

Another obvious point: Statutory language has the force of law even if an appellate court has not addressed that language yet. The Defense disputes this. At pages 13-15, the Defense Response says there is no case in which a court has ruled that medical care failed to meet the severity requirement in the statutory definition of EMC. The Defense insinuates that since there are no appellate decisions on that issue, the parties and the Court should all pretend that this statutory language does not exist. The Defense in this matter has never been shy about inviting courts into reversible error, but this one might be the clubhouse leader.

Statutes have words, and unless otherwise indicated in the statute, the ordinary meaning of the words govern. Courts look to dictionaries as evidence of ordinary meaning.

The Defense points out that no Georgia case has discussed the meaning of “immediate” in OCGA 51-1-29.5. (Defense Response, page 13.) Along the way, there is an implicit criticism of using dictionary guidance to reach an understanding. (Id., page 3.) But absent some indication in the statute to do otherwise, our Supreme Court gives statutory language its plain, ordinary meaning. And the Supreme Court of course looks to dictionaries as evidence of that meaning. E.g.:

In construing a statute, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. Dictionaries define “on behalf of” as including “as the agent or representative of,” “on the part of,” and “in the name of.” See Black’s Law Dictionary 184 (10th ed. 2014); Bryan A. Garner, A Dictionary of Modern American Usage 78 (1998); see also Webster’s New Collegiate Dictionary 141 (9th ed. 1991).

Smith v. Northside Hospital, 302 Ga. 517, 521 (2017).

Notably, however, the Defense does not dispute the meaning of the word “immediate” as stated in the Merriam-Webster dictionary, which we cited in our opening brief. Nor does the Defense dispute the meanings of “expected” or “serious.” All these words are key to the first sentence of the statutory definition of EMC.

Rulings by prior trial courts do not override statutes — nor do vague, informal statements in emails.

The Defense puts a lot of emotional weight on the idea that Plaintiff “wants this Court to give her a ‘do-over’ for no reason other than the ruling is not in her favor.” There are multiple problems with that point, but the biggest is that even if the Bibb County court really had ruled against Jennifer Barnett on this issue, that hypothetical ruling would not trump the statute (of course). Nor would such a ruling be “law of the case,” as discussed in our opening brief at page 17.

But as discussed in the opening brief, the Bibb County court did not rule against Plaintiff on this issue. The formal, written order was consistent with our position. And it’s not at all clear what that court’s later, informal email meant. Whatever it meant, though, it was not an order. And obviously, hypothetical reversible error in Bibb County would neither compel nor justify actual reversible error in Cobb County. The Defense point is empty.[1]

If a case never moves into the category of “Emergency Medical Care,” then it doesn’t matter whether it would meet the requirements to move back out.

As we’ve said, the Defense Response jumps over the first sentence of the statutory definition of EMC and goes straight to the second sentence — the language about “after the patient is stabilized.” Apart from disregarding the text, the Defense also makes an obvious logical error.

The statutory definition works this way: The definition is in two (long) sentences. The first sentence contains multiple requirements. If the factfinder decides all those requirements are met, then the medical care at issue moves intothe category of “emergency medical care” (EMC). However, the legislature recognized that an emergency patient often gets better and no longer needs emergency care. So the second sentence adds requirements for moving back out of the category of EMC.

OCGA 51-1-29.5(a)(5)

Sentence 1

Sentence 2

Care that satisfies these requirements moves into the category of EMC

Care that satisfies these requirements moves back out of the category of EMC

“Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of IMMEDIATE medical attention could reasonably be EXPECTED to result in placing the patient’s health in SERIOUS JEOPARDY, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

The Defense focuses their entire argument on asserting that Jennifer’s care never met the requirements for moving back out of the category of EMC — as if that somehow shows that Jennifer’s care did at some point move into the category of EMC. But those are two different things. Proving one does not prove the other.

It should be obvious as a matter of basic logic that if medical care never moves into the EMC category, then it doesn’t matter whether it would meet the requirements for moving back out. If you are never put into a given building (an “escape room,” say), then it doesn’t matter whether you would meet the requirements for getting out. And the fact that you would not meet the requirements to get out does nothing to prove you were put in.

For example, suppose a man is at an outpatient physician’s office with a minor cut. To prevent infection, the physician gives the patient a shot of antibiotics. The patient leaves the office. In the parking lot, he suffers anaphylactic shock, goes into cardiac arrest, and dies, without anyone seeing him or providing any medical care. After the anaphylactic shock, that patient never stabilized and became capable of receiving medical treatment as a nonemergency patient. That patient never met the requirements to move back out of the EMC category. But that doesn’t mean the patient ever met the requirements to move into the EMC category in the first place. He didn’t, because the medical care given to him did not meet the timing & sequence requirement of the first sentence of the statutory definition. That is, the medical care came before the acute, severe symptoms, not after.

Jennifer Barnett’s case is similar: Even assuming Jennifer never met the requirements to move back out of the EMC category, that does not mean she ever met the requirements to move into the EMC category. And she did not, because she did not meet the severity requirement of the first sentence of the statutory definition.

This is about the simplest logic possible, but the Defense either fails to grasp it or hopes (forlornly, one expects) that the Court will fail to grasp it.

Getting immediate medical attention doesn’t mean you had a severe condition.

The Defense relies on another lapse of basic logic. The Defense stresses that Jennifer Barnett did receiveimmediate medical attention. For the sake of argument, we assume without conceding that Jennifer did receive immediate medical attention — appallingly negligent attention (or really, misguided and harmful attention), but attention nonetheless. The Defense Response insinuates that this attention would make Jennifer’s care meet the severity requirement of the statutory definition.

That’s wrong. The speed of response does not determine the severity of the condition. A physician can respond immediately to a minor cut, or can delay for an hour before responding to a patient hemorrhaging blood into her brain. Speed and severity are mutually independent things. One does not prove the other. Again the Defense invites the Court into obvious error.

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The severity requirement of the statutory definition of EMC exists, and it applies. The definition is met only if (among other things) Jennifer’s condition was so severe that the lack of immediate medical attention was likely to cause serious harm. Now we turn to the evidence on that question.

2. The statute’s severity requirement is not met in this case, and the Defense’s new affidavits are too ambiguous and conclusory to create a genuine fact dispute.

There are two questions here: whether Jennifer Barnett is entitled to partial summary judgment on this issue, and on the flip side, whether the Defense is entitled to it. The easiest question, first.

The affidavit of Dr. Martin Lutz precludes summary judgment in favor of the Defense.

Plaintiff submitted a long, detailed affidavit by Dr. Martin Lutz, stating that Jennifer’s condition was not such that an absence of immediate medical attention was likely to cause serious harm. The Defense does not argue (nor could they) that Dr. Lutz is unqualified or that his opinion is ungrounded in medical facts. The Defense simply ignores the affidavit, just as they ignore the first sentence of the statutory definition of EMC. Dr. Lutz’s affidavit forecloses any possibility of summary judgment in favor of the Defense on this issue.

The Defense’s new expert affidavits are ambiguous and conclusory, and do not suffice to create a genuine fact dispute.

It is an admittedly closer question whether Jennifer Barnett is entitled to partial summary judgment on this issue. Although the Defense insinuates (wrongly) that expert testimony is unnecessary, they now provide two expert affidavits. The affidavits do not suffice to create a genuine fact dispute.

The affidavits by Drs. Hoekstra and Jagoda are too ambiguous and conclusory to create a genuine fact dispute.

The Defense submits affidavits by two medical experts, Dr. Hoekstra and Dr. Jagoda. If those physicians really support the Defense position — on defensible grounds — then there could be no summary judgment in favor of Jennifer Barnett on the issue. Indeed, we originally assumed the Defense could obtain such expert opinions. If that had happened, we would have withdrawn Plaintiff’s motion for partial summary judgment.

But the affidavits of Dr. Hoekstra and Dr. Jagoda are too ambiguous and conclusory to create a genuine fact dispute. The affidavits offer little explanation of anything. They both focus on whether Jennifer was stabilized after coming into the ED. But as we’ve discussed, that’s irrelevant on this motion. From these affidavits, it is unclear whether either witness intends to say anything about whether Jennifer could or could not tolerate even a short delay of medical attention, without risk of serious harm.

The uncertainty is telling: If either expert was willing to say what the Defense needs them to say, they surely could have said it clearly and unmistakably. They didn’t. Neither of them says they disagree with Dr. Lutz on the issue. Neither of them betrays any awareness of Dr. Lutz’s affidavit, let alone any substantive disagreement. The only point in either affidavit where these experts might possibly be addressing the severity requirement of the statutory definition is a single unexplained, conclusory sentence:

If Dr. Hamilton had not provided immediate medical attention to Mrs. Barnett in the ED, Mrs. Barnett’s her health could reasonably have been expected to have been placed in serious jeopardy.

By itself, that statement would at least be unambiguous. In context, however, it is not clear what the witnesses really intend to say. But even if the statement is taken at face value and as unambiguous, the statement remains utterly conclusory — not a word of explanation.

To our knowledge, the Georgia appellate courts have not addressed the question of whether a purely conclusory affidavit (or portion of an affidavit) suffices to create a genuine fact dispute. However, there is a large body of federal law, both within and without the Eleventh Circuit, holding that conclusory affidavit statements do not suffice. One recent federal case in Georgia discusses the issue at instructive length:

Furthermore, the Court finds that no genuine issue of material fact arises out of Mr. Cummins’s affidavit testimony to the effect that late-fee provisions are not enforced in the industry and that a course of dealing had been established between Plaintiff and Defendant. That affidavit testimony is not supported by any examples of industry custom, and beyond citing industry experience, Mr. Cummins does not explain how he concluded that a course of dealing had been established between the parties. The Court finds that these conclusory and unsupported statements fall short of creating a genuine issue of material fact.

To be clear, the Eleventh Circuit recently clarified that self-serving statements in an affidavit can create a dispute of material fact if those statements are made on personal knowledge and the affiant is competent to testify on the matters stated. United States v. Stein, 881 F.3d 853, 856-57 (11th Cir. 2018) (en banc). But the Eleventh Circuit also reaffirmed the rule that “[a]n affidavit cannot be conclusory.” Id. at 857; see also McKenny v. United States, 973 F.3d 1291, 1303 (11th Cir. 2020) (stating that “conclusory affidavits lack probative value” and determining that materials at issue were conclusory because they did not explain how the relevant conclusions were reached). …

To that end, one decision from this Court is instructive. Vlessing v. Paka Textile Co., No. 1:04-CV-3722-SSC, 2007 WL 9700636 (N.D. Ga. Sept. 28, 2007). There, a party who worked in the textile industry asserted by declaration that he should have received a commission because under industry custom, a sales agent received commission for sales made within the agent’s territory regardless of how the sale transpired. Id. at *11. Another declarant provided similar testimony. Id. The Court held that this industry custom testimony was “not supported by facts” and consisted of “conclusory statements” that were insufficient to create an issue of fact as to industry custom. Id.; see also Ratha v. Phatthana Seafood Co., 35 F.4th 1159, 1179 (9th Cir. 2022) (finding that conclusory statements about industry standards lacked factual basis and thus failed to raise a genuine issue of material fact); Martinez v. SOC LLC, No. CV 11-232 LFG/SMV, 2012 WL 13081202, at *15 (D.N.M. Jan. 10, 2012) (finding that unsupported contention that an implied contract existed between parties based on an unspecified course of conduct and dealing between the parties did not raise a genuine issue of material fact); In re Sierra Concrete Design, Inc., 463 B.R. 302, 306 (Bankr. D. Del. 2012) (finding that “one-paragraph, conclusory allegation in [a] supporting affidavit” was insufficient to establish the ordinary course of business in an industry). Here, Mr. Cummins’s single paragraph of affidavit testimony regarding late-fee provisions is similarly conclusory, and it is too insubstantial to create a genuine issue of material fact as to whether Plaintiff waived its right to enforce a clear contractual late-fee provision. Accordingly, the Court finds that Plaintiff is entitled to summary judgment regarding late fees under the governing contracts.

Deutz Corp. v. Engine Distributors, Inc., 2022 U.S. Dist. LEXIS 236841, at *28-30 (ND Ga. Sep. 20, 2022).

We believe the federal law is persuasive and likely to be adopted by our appellate courts. It would be proper even now to grant summary judgment in favor of Jennifer Barnett, on the question of whether the medical care at issue meets the statutory definition of EMC. However, if the Court is not inclined to grant Plaintiff’s motion at this point, we would ask the Court to hold a decision until we have taken the depositions of Drs. Hoekstra and Jagoda on their new opinions. It may well be that neither of them will actually testify that Jennifer Barnett was unable to tolerate a delay of even a few minutes of medical attention.[2]

CONCLUSION

The Defense has virtually nothing to say on the question of whether the medical care in this case meets the statutory definition of EMC. Instead, the Defense pretends the key statutory language does not exist.

The Defense motion for partial summary judgment on this issue is precluded by the detailed affidavit of Dr. Martin Lutz. The only real question is whether the affidavits by Dr. Hoekstra and Dr. Jagoda suffice to create a fact dispute preventing partial summary judgment in favor of Jennifer Barnett. Based on the federal law, we think not. However, if the Court has doubts, we would ask the Court to delay ruling on Plaintiff’s motion until after we have deposed Dr. Hoekstra and Dr. Jagoda on their new opinions.

April XX, 2023

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 Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

(404) 249-6764 (fax)

bell@BellLawFirm.com

/s/ Darren Summerville

DARREN SUMMERVILLE

Georgia Bar No. 691978

THE SUMMERVILLE FIRM, LLC

1226 Ponce de Leon Avenue, NE

Atlanta, GA 30306

T: (770) 635-0030

F: (770) 635-0029

darren@summervillefirm.com

Attorneys for Plaintiffs

State Court of Cobb County

State of Georgia

Jennifer Barnett,

Plaintiff,

— versus —

Richisa Johnson, MD. and George Brown III, R.N,

Defendants.

Civil Action

File No. 23-A-526-6

Hon. Diana Simmons

Certificate of Service

The undersigned has served the foregoing document on all counsel of record, by filing the document with the Court’s efiling system.

April XX, 2023

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

[1] Three other problems with this Defense point: First, the law does not despise do-overs. Every appeal is a request for a do-over. Every motion to reconsider is a request for a do-over. Second, other than a ruling not being in a party’s favor, what other reason could there be to appeal or move to reconsider? Does anyone do that when they’ve won? Third, the Defense in this case is energetic about requesting do-overs themselves. Which is fine, but it makes their argument here not only hypocritical, but silly.

[2] Before we filed Plaintiff’s motion, we repeatedly asked the Defense if they could provide expert testimony on the severity requirement. The Defense would not give a straight answer. This suggests the Defense themselves doubted their experts would support them here.

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