Motion to Dismiss Negligent Administration Claim: Holloway v. Emory
Plaintiff Response
State Court of Gwinnett County
State of Georgia
LINDA HOLLOWAY,
Plaintiff,
— versus —
KAISER PERMANENTE INSURANCY COMPANY; THE SOUTHEAST PERMANENTE MEDICAL GROUP, INC.; KAISER FOUNDATION HEALTH PLAN OF GEORGIA, INC.; KAISER FOUNDATION HEALTH PLAN, INC.; KAISER FOUNDATION HOSPITALS, INC.; SAINT JOSEPH’S HOSPITAL OF ATLANTA, INC.; EMORY HEALTHCARE, INC.; CHEICKNA DIARRA, M.D.; DARRYL J. TOOKES, M.D., and
JOHN/JANE DOE(S) 1-10,
Defendants.
Civil Action
File No. 22-C-00688-S4
Hon. Ronda Colvin-Leary
Plaintiffs’ Response to Emory’s Motion to Dismiss
TABLE OF CONTENTS
Georgia law recognizes a cause of action for negligent administration.
A complaint need only give general notice of a claim. The details can be fleshed out in discovery.
The Complaint pleads a claim for negligent administration.
Emory does not — and cannot — show it is impossible they are liable for negligent administration.
[T]he problem of medical errors is not fundamentally one of “bad apples” (though there are some), but rather one of competent providers working in a chaotic system that has not prioritized safety.
— Understanding Patient Safety (3d Ed.)
INTRODUCTION
Emory has filed a motion to dismiss a negligent administration claim in Linda Holloway’s medical malpractice case. The standard on a motion to dismiss is extremely demanding. Emory does not meet that standard. Emory does not come within sight of the standard.
On a motion to dismiss, the law asks only two questions: First, does the asserted cause of action exist? That is, does the law generally recognize the type of claim asserted. If yes, then the law asks the second question: Accepting all the allegations in the complaint as true, and drawing all reasonable inferences in favor of the plaintiff, can the Court find that no possible set of facts could exist to prove the defendant liable? If no, then the law rejects dismissal.
Here, the answer to the first question is yes, and the answer to the second question is no. Linda Holloway asserts a claim for negligent administration by Emory. The first question on Emory’s motion to dismiss that claim is this: Does Georgia law recognize negligent administration as a potential cause of action in a medical malpractice case? The answer is yes. For example, in Dent v. Memorial Hospital (1998), our Supreme Court reversed a judgment in favor of the hospital, because the jury instructions did not make clear that both ordinary negligence and professional malpractice would authorize a verdict against the hospital.[1] Emory does not say otherwise.
Since the law recognizes negligent administration as a cause of action, the law’s second question on a motion to dismiss is this: Accepting all allegations in the Complaint as true, can the Court exonerate Emory, by ruling that it is impossible Emory committed negligent administration that contributed to harm Linda Holloway? The answer is no. Emory does not really say otherwise. Emory grumbles and fusses at length about the negligent administration claim, but Emory makes no attempt to show how it is impossible that Emory committed negligent administration.
The standard for dismissal is high, and Emory doesn’t come close. The law rejects Emory’s motion to dismiss.[2]
ARGUMENT
1. The Complaint pleads a claim for negligent administration, and the law does not authorize dismissal of the claim.
A cause of action for negligent administration exists in Georgia law, and the Complaint pleads it. That’s all the law requires, to defeat a motion to dismiss.
Georgia law recognizes a cause of action for negligent administration.
Negligent administration is just a form of ordinary negligence. Our Supreme Court and Court of Appeals have repeatedly held that negligent healthcare administration can coexist alongside medical malpractice and is actionable. E.g.:
· Dent v. Memorial Hospital, 270 Ga. 316 (1998) (reversing, where jury was not clearly instructed that they could find both negligent administration and medical malpractice).
· Lowndes County Health v. Copeland, 352 Ga. App. 233 (2019) (re. defense motion for directed verdict based on lack of expert testimony for plaintiff: “A jury found Holly Hill liable for both professional and ordinary negligence. … The trial court rejected Holly Hill’s argument and denied its motion for directed verdict. We find no error.”)
Negligent Administration differs from professional malpractice and does not require an affidavit of merit under OCGA 9-11-9.1.
Pursuant to OCGA 9-11-9.1, a plaintiff must file an expert affidavit of merit with any claim of professional malpractice. This requirement applies only to claims against professionals licensed for professions listed in the statute. See OCGA 9-11-9.1(g): “The professions to which this Code section shall apply are” specific professions.
As the statute makes plain, the affidavit-of-merit requirement does not apply to anyone else. The appellate courts obviously recognize this. E.g.:
· Carter v. Cornwell, 338 Ga. App. 662 (2016) (“By negative implication, an expert affidavit is not required for claims averred in a complaint that are based on acts or omissions constituting simple negligence rather than professional malpractice.”_
· Upson County Hospital v. Head, 246 Ga. App. 386 (2000) (re. motion to dismiss for failure to file a Section 9.1 affidavit: “To the extent that the hospital agents or employees are not “professionals,” … the affidavit requirements of OCGA 9-11-9.1 do not apply. Thus, Head may maintain her action against the hospital with regard to the negligence of any nonprofessionals.”).
A complaint need only give general notice of a claim. The details can be fleshed out in discovery.
One last legal principle, before we address the pleadings in the Complaint: “Under Georgia law, a complaint need only give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details.” Norman v. Xytex, 310 Ga. 127 (2020).
The Complaint pleads a claim for negligent administration.
Linda Holloway’s Complaint gives abundant notice of a negligent administration claim:
. . .
. . .
The Complaint gives far more than “fair notice of what the claim is and a general indication of the type of litigation involved.” The Complaint pleads a claim for negligent administration.
The law permits dismissal only if the possibility of proving the claim can be ruled out, regardless of any evidence that may turn up in discovery.
The Supreme Court recently reiterated the familiar standard on a motion to dismiss:
[T]he well-established test that must be satisfied before a motion to dismiss can be granted is a demanding one:
A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.
In reviewing such a motion, any doubts regarding the complaint must be construed in favor of the plaintiff. To state a claim sounding in tort upon which relief may be granted, a complaint must identify (1) a legal duty the defendant owes to the plaintiff, (2) the defendant's breach of that duty, and (3) an injury to the plaintiff that is (4) proximately caused by the defendant's breach.
Norman v. Xytex, 310 Ga. 127 (2020). In a footnote to this passage, the Supreme Court went on to note that “under Georgia law, complaint need only give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details.”
Emory does not — and cannot — show it is impossible they are liable for negligent administration.
Emory offers three arguments. We discuss them below. But Emory does not even say, much less show with certainty, that it is impossible they are liable for negligent administration that harmed Linda Holloway. So Emory’s motion to dismiss fails.
2. Emory’s arguments ignore the law and the allegations of the Complaint, and identify no basis to dismiss the claim.
The introduction of Emory’s brief provides a handy summary of their arguments. Instead of any serious attempt to meet the high standard for dismissal, Emory makes three arguments that ignore the law and ignore the allegations in the Complaint. At pages 1 & 2 of their brief, Emory summarizes their arguments as follows:
Each of these three arguments ignores either the law, the allegations of the Complaint, or both. None of these arguments identifies any basis to dismiss the negligent administration claim.
2.1. Emory’s first argument ignores the legal principle that a complaint doesn’t have to identify specific acts of negligent administration. But the Complaint does identify specific acts anyhow.
Emory first says the Court must dismiss the negligent administration claim because “the plaintiff has not identified any ‘failed’ administrative policy of Emory that allegedly contributed to Linda Holloway’s injury.” But under the law, the complaint need only assert administrative negligence generally. The specific violation can be identified through discovery.
“Under Georgia law, a complaint need only give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details.”
Norman v. Xytex, 310 Ga. 127 (2020).
In any event, the Complaint here does specify nine acts of administrative negligence — at paragraph 257(a) through (i). Emory’s first argument provides no basis for dismissing the negligent administration claim.
2.2. Emory’s second argument ignores the Complaint’s allegations that negligent administration caused harm to Linda.
Emory next says the Court must dismiss the negligent administration claim because “the plaintiff has averred that all of her injuries were caused by the negligence of the individual physician defendants and has failed to claim any causal connection between the purported but unspecified ‘administrative’ negligence and the injuries.”
That’s wrong. The Complaint alleges generally that “By violating their duties of ordinary care, the Kaiser Defendants and the Emory Defendants harmed Linda Holloway.” (¶ 199.) Additionally, as to each of the nine specific acts of administrative negligence, the Complaint alleges, “These entities committed administrative negligence in this respect. The failure caused harm to Linda Holloway.” (¶ 257(a)-(i).)
Emory’s second argument ignores the actual allegations of the Complaint and provides no basis for dismissing the negligent administration claim.
2.3. Emory’s third argument ignores the Complaint’s allegations that specifically limit the negligent administration claim to acts that were or could have been performed by individuals not licensed for professions listed in OCGA 9-11-9.1 — and therefore not subject to that statute’s affidavit-of-merit requirement.
Finally, Emory says the Court must dismiss the negligent administration claim because “these claims involve the professional judgment of healthcare providers as a matter of law and therefore require an expert affidavit [pursuant to OCGA 9-11-9.1], which the plaintiff failed to file here.”
Again, this ignores the actual allegations. The Complaint specifically limits the claim to actions either (a) by individuals who are not licensed for professions listed in OCGA 9-11-9.1 or (b) by licensed professionals in their performance of purely administrative tasks. (Complaint, ¶¶ 203-09.) The affidavit-of-merit requirement in OCGA 9-11-9.1 does not apply to those claims of negligence. Furthermore, the Complaint identifies a wide variety of administrative tasks that can be performed by people who are not licensed professionals but which affect patient safety. (Complaint, ¶¶ 236-251.) Emory’s third argument ignores the actual scope of the negligent administration claim and provides no basis to dismiss that claim.
3. Emory’s general theme — that healthcare administrators do not contribute to medical error — is wrong but irrelevant.
The main thrust of Emory’s brief is that it’s unfair to hold hospital management responsible for negligence in the overall running of the hospital — although Emory is unclear about why such accountability is unfair. Maybe they’re saying negligent management could never, ever, not even possibly contribute to medical error. If that’s what they’re trying to hint at, then no wonder they don’t say it out loud: That would be naïve in the extreme. In any case, Georgia law rejects such a view.
While it doesn’t really matter to the legal issue, it’s worth noting that the healthcare industry recognizes that healthcare administration affects patient safety, that poor administration contributes to medical error, and that mostmedical errors arise in part from poor administration. Indeed, Emory University itself recognizes this. Emory University offers an MBA program in Healthcare Administration. Emory markets the program with the slogan, “Healing People Should Start with Healing Business.” Emory says, “Improving the quality … of healthcare … is a challenge for this and future generations. Business principles and approaches play a vital role in improving healthcare delivery….”[3]
Hospital leaders consist overwhelmingly of non-clinicians — individuals who are not licensed in a healthcare profession. Thus, for example, the American Association for Physician Leadership estimates that only 5% of hospital leaders consisted of physicians.[4]
The consensus view in the healthcare industry is that healthcare administration crucially affects patient safety, and that poor administration contributes to harmful medical errors. The Joint Commission — the primary accrediting body for American hospitals — shares this view. For example, in 2017, the Joint Commission wrote that “leadership’s failure to create an effective safety culture is a contributing factor to many types of adverse events — from wrong site surgery to delays in treatment.” The Joint Commission went on to say, “Inadequate leadership can contribute to adverse eventsin various ways….”
As a defendant, Emory pretends to think — and tells the Court — that poor hospital management and administration does not contribute to medical error. That is not what Emory University thinks. That is not what the Joint Commission or the rest of the healthcare industry thinks. That is a made-for-litigation assertion.
Again, the validity of Emory’s litigation-driven view does not really matter here. The law rejects it. But to the extent Emory is pushing a change in established legal principles, Emory is doing so based on a theory that is utterly rejected by the healthcare industry at large.
CONCLUSION
Linda Holloway’s Complaint properly pleads a claim for negligent administration. The law rejects Emory’s request to dismiss it.
April 25, 2022
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
Attorneys for Plaintiffs
[1] 270 Ga. 316 (1998).
[2] Plaintiff withdraws her claims against Emory that are premised on an attempt to enforce an arbitration agreement. Emory disclaims any such attempt.
[3] https://goizueta.emory.edu/healthcare-mba-concentration.
[4] https://aspioneer.com/dr-peter-angood-empowering-physicians-redefining-healthcare/.