Motion to Dismiss Negligent Administration Claim: Robinson v. Wellstar
Plaintiff Response
In the State Court of DeKalb County
State of Georgia
DAMIEN ROBINSON
Plaintiff,
— versus —
JAMES A. ARMSTRONG, MD,
ELIZABETH BLEAKLEY, PA,
THOMAS M. HOLMES, MD,
BRETT S. HORGAN, DO,
JEFFREY D. SCHULZE, MD,
RICHARD J. KLEIMAN, MD,
WELLSTAR MEDICAL GROUP, LLC,
PAULDING MEDICAL CENTER, INC., and
KENNESTONE HOSPITAL, INC
QUANTUM RADIOLOGY, P.C.,
APOLLOMD, INC.,
PRINCIPALS OF THE INDIVIDUAL DEFENDANTS
Defendants
Civil Action
File No. 19 A 76120
HON. MIKE JACOBS
Plaintiff’s Response to
Wellstar Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint
TABLE OF CONTENTS
DISCUSSION
Wellstar’s motion to dismiss ignores elementary principles. On a motion to dismiss, Wellstar must show that there is no possible set of facts that could establish ordinary, non-professional malpractice — that is, either:
Category 1: Negligence by individuals not licensed by the State of Georgia for professions listed in OCGA 9-11-9.1(g), or
Category 2: Negligence by individuals who are licensed professionals but who committed negligence in a purely managerial or administrative function.
To justify dismissal of Damien Robinson’s ordinary negligence claim, Wellstar must show that no possible set of facts could show negligence in either Category 1 or Category 2.
Wellstar cannot show that. They haven’t tried to show it. They haven’t even made a bare, unsupported assertion of it. The law therefore does not authorize dismissal of Plaintiffs’ claim for ordinary negligence.
Damien Robinson languished in Wellstar hospitals for over a week as inflammation in his spinal cord destroyed nerve fibers that control motor movement in his legs and bladder and other organs, before Damien finally received the treatment that has been the standard of care for “transverse myelitis” for years — a simple IV with high-dose corticosteroids to reverse the inflammation. This delay in treatment left Damien — an otherwise fit, healthy 18 year-old — with permanent leg, bladder, and sexual dysfunction. This delay in treatment happened, first, because Wellstar’s system allowed an order for IV corticosteroids to go unnoticed, unremarked, unfilled. And second, because the neurologist who first examined Damien wrote him off as a psychiatric patient — a healthy kid with no psychiatric history. The individual clinicians involved in this botched treatment surely bear their share of responsibility. But behind the individual clinicians, there’s a defective system that creates needless opportunity for error and tolerates sloppy, dismissive clinical decision-making. That is, back of the clinician’s negligence, there’s negligence by managers and administrators.
Wellstar is independently accountable for their managerial negligence in creating this dysfunctional system.
Managing a healthcare organization differs from treating patients. Management is a separate discipline, a separate function. Like many hospitals, Wellstar’s management is heavily populated by individuals who are not licensed physicians or nurses — who are not “professionals” as defined by OCGA 9-11-9.1. Wellstar’s CEO, for example, is not a physician or a nurse, but a manager.[1] Broad categories of healthcare managers 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.[2] Nor does becoming a CPPS (a Certified Professional in Patient Safety).[3] As we write, Wellstar advertises a job as “Coordinator Patient Safety - Quality Improvement” which does not require a medical or nursing degree or license.[4]Similarly, Wellstar is advertising for an “Executive Director Patient and Medication Safety.” This role “reports to the AVP of Safety and Accreditation and is a member of the health system’s corporate leadership team, responsible for the strategy and operational structure of the safety and reliability program, including medication safety.” For this senior role, Wellstar “prefers” but does not require a clinical degree.[5] In short, hospitals generally, and Wellstar in particular, have a great many non-licensed managers — outside the category of “professional” within the meaning of OCGA 9-11-9.1 — who nonetheless have important roles in managing healthcare quality. Those managers sometimes act negligently, just as physicians sometimes do.
But Wellstar now moves to dismiss Damien Robinson’s claim for negligence by Wellstar managers. Blame the doctors and nurses, Wellstar says, but management is off limits. Accountability for doctors, but not for managers. The law says otherwise.
Before proceeding, the standard on a motion to dismiss bears reciting, since Wellstar ignores it:
[T]he standard for granting a motion to dismiss is a demanding one. A complaint need only give fair notice of the claim, and a motion to dismiss should be granted only when the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.
Norman v. Xytex, 310 Ga. 127 (2020).
Wellstar does not meet this standard — not remotely. They don’t try to meet it. They don’t say they meet it. They just ignore it, as if by doing so they can make the Court forget the standard, too.
We recently took the deposition of the psychiatrist who finalized the erroneous conversion-disorder diagnosis for Damien Robinson — Dr. Erika Heard. Dr. Heard was then and is now an employee of Defendant Wellstar Medical Group, LLC. In her deposition, Dr. Heard confirmed that conversion disorder is a tricky diagnosis to make, and that a misdiagnosis can be catastrophic because it diverts the patient away from medical treatment toward psychological treatment. Dr. Heard agreed that “there have to be some very good guardrails against misdiagnosis of conversion disorder.” And yet at Wellstar, so far as Dr. Heard knows, management has put in place no policies or protocols governing the use of conversion-disorder diagnoses, management has organized no training on the use conversion-disorder diagnoses, and management has done nothing to identify the error rate of conversion-disorder diagnoses at Wellstar:
Q. So, I mean, the point here that I think we agree on, I just want to make sure, is that conversion disorder is a tricky diagnosis. If it is misdiagnosed, that is potentially catastrophic for the patient, and so there have to be some very good guardrails against misdiagnosis of conversion disorder; is all of that fair?
A. That is fair. …
* * *
Q. At WellStar, are there any policies or protocols governing the use of conversion disorder diagnosis?
A. Not that I am aware of.
Q. Have — are you aware of any training that WellStar management has organized for physician that are psychiatrists or non-psychiatrists, or for physician assistants and other providers, when to refer a patient to a psychiatrist for consideration of conversion disorder?
A. Not that I am aware of.
Q. Are you aware of any efforts by WellStar management to — to gauge the rate of error in diagnosing conversion disorders at the WellStar Hospitals?
A. Not that I am aware of.
That is, on the issue of conversion-disorder diagnoses for people with apparently alarming neurological deficits, Wellstar management has done nothing to prevent a known but preventable problem that is potentially catastrophic for patients. In this respect and others, Wellstar management acted negligently and caused harm to Damien Robinson.
Damien asks the Court to deny Wellstar’s motion to dismiss.
1. Negligence by non-professional employees does not require a Section 9.1 affidavit; and Wellstar cannot show it is impossible to prove negligence by non-professional employees.
The complaint alleges negligence by individuals who are not licensed by the State of Georgia and whose professions are not listed in OCGA 9-11-9.1(g). The law regards such negligence as ordinary negligence for which a Section 9.1 affidavit is not required. The facts accumulated in discovery may prove such negligence. Because such negligence may be proven, the law rejects Wellstar’s motion to dismiss.
The statute itself — OCGA 9-11-9.1 — and our Supreme Court and Court of Appeals make clear that a claim for negligence by hospital staff who are not licensed professionals as defined in OCGA 9-11-9.1 does not require an expert affidavit pursuant to that statute. E.g.:
· OCGA 9-11-9.1: “(a) In any action for damages alleging professional malpractice against [a] professional LICENSED by the State of Georgia AND listed in subsection (g) of this Code section … the plaintiff shall be required to file with the complaint an affidavit of an expert …. (g) The professions to which this Code section shall apply are ….” [listing specific licensed professions]
· 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.”
Plaintiffs’ complaint explicitly states a claim for negligence by non-professional managerial and administrative staff who are not licensed by the State of Georgia and are not listed in OCGA 9-11-9.1(g). But Wellstar moves to dismiss that claim for failure to file a Section 9.1 affidavit. The law says No.
The lack of a Section 9.1 affidavit provides no basis to dismiss the claim for negligence by managerial or administrative staff who are not “professionals” as defined in OCGA 9-11-9.1. And Wellstar does not even attempt to demonstrate that no set of facts could prove such negligence. The law therefore does not authorize dismissal.
Damien Robinson asks the Court to deny the motion to dismiss, as to any negligence by non-“professional” hospital employees.
2. Negligence in purely managerial functions does not require a Section 9.1 affidavit; and Wellstar cannot show it is impossible to prove negligence in purely managerial functions.
The complaint alleges negligence by licensed physicians or nurses acting in a purely managerial or administrative function. The law regards such negligence as ordinary negligence for which a Section 9.1 affidavit is not required. The facts accumulated in discovery may show such negligence. Because such negligence may be proven, the law rejects Wellstar’s motion to dismiss.
The Supreme Court and Court of Appeals hold that even for individuals licensed as “professionals,” when those individuals commit negligence concerning purely managerial or administrative tasks, a Section 9.1 affidavit is not required.
· 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.”
The Court of Appeals holds specifically that a failure to train counts as ordinary negligence, not professional malpractice:
As we discussed in Division 1, the hospital’s purported failure to train its agents and employees is an allegation of ordinary negligence. Thus, no 9.1 expert affidavit is necessary for this claim.
Upson County, 246 Ga. App. 386 (2000). Other specific tasks that have been deemed ordinary negligence include:
· staffing decisions based on cost factors — Lowndes County Health Services, v. Copeland, 352 Ga. App. 233, 239 (2019)
· failure to have appropriate equipment — Jenkins County Hospital Authority v. Landrum, 206 Ga. App. 753, 753 (1992)
· hospital employees’ failure to follow instructions — Smith v. North Fulton Medical Center, 200 Ga. App. 464, 466 (1991)
· a nurse’s failure to activate an alarm as ordered by a doctor — Dent v. Memorial Hospital, 270 Ga. 316, 316-18 (1998).
Plaintiffs’ complaint identifies multiple ways in which negligence in non-professional, managerial functions may have contributed to harming Damien Robinson:
· Tolerating procedures that allow breakdowns in communication.
· Failing to train, supervise, and support healthcare providers.
· Failing to staff adequately.
· Failing to provide mechanisms to escalate patient-safety issues without fear of retaliation.
· Permitting a culture that discourages the recognition and remediation of errors.
· Failing to ensure compliance through assessments, evaluations, and audits.
· Creating problems with morale — from overwork, understaffing, unfair employment practices, and poor management decisions.
(Fourth Amended Complaint, ¶¶ 16, 22.)
Like the failure to train which the Court of Appeals addressed in Upson County, these are management functions, not physician or nursing functions. These managerial tasks involve the creation and maintenance of systems of communication, oversight, and culture-building. “Culture building” sounds soft, squishy, and easy to mock; but the literature on healthcare management takes it seriously, and so do hospital systems. For example, in Wellstar’s advertisement for an “Executive Director Patient & Medication Safety,” they list “cultural transformation” among the “required minimum skills.”[6] These tasks are not matters of medical judgment or clinical care. Negligence in these management functions would constitute ordinary negligence that does not require a Section 9.1 affidavit.
To justify dismissal, Wellstar must show that it is impossible, on any set of facts, to prove negligence by a physician or nurse in a purely managerial function. Wellstar must show, for example, that it is impossible to prove that an employee physician fostered a climate that discouraged physician assistants from escalating concerns about patient safety. Wellstar can make no such showing. They haven’t bothered to try. They haven’t even said no set of facts could establish such negligence. The law rejects Wellstar’s motion to dismiss.
3. The possibility of professional malpractice does not exclude the possibility of ordinary negligence.
Our intention in pleading the ordinary negligence claim is to omit potential criticisms of professional malpractice that may have occurred in connection with creating and maintain the dysfunctional system at Wellstar that led to the neglect of Damien Robinson’s spinal cord disorder. Our intent with this claim is to focus solely on management. However, in addition to committing ordinary negligence, Wellstar employees may well have also committed professional malpractice that contributed to the dysfunctional system. The possibility of professional malpractice does not exclude the possibility of ordinary negligence in creating the dysfunction. Wellstar does not say outright that the one possibility excludes the other, but that unspoken premise underlies Wellstar’s argument.
Wellstar’s motion emphasizes language in the complaint that highlights professional malpractice. (See Motion, page 4.) This is a medical malpractice case, so yes, obviously, there is professional malpractice. But on the dysfunctional-system issues where management works together with physicians and nurses, management plays its own important role.
As a general matter, the implementation of any policy for patient care involves both clinical and managerial tasks. For example, most hospitals have policies requiring radiologists to make a phone call to the physician who ordered a CT scan or MRI, if the images reveal a “critical value” — a finding of a serious, urgent danger to the patient. The substantive content of that policy is a matter of professional medical judgment. But once the policy is written, there is purely managerial work to do: First, promulgate the policy, so the radiologists know it exists. Papering the file with nice policies does no good, if the relevant people never hear about the policy. Second, make clear that the policy has teeth, that it is to be followed. A toothless policy is meaningless. Third, provide training to ensure understanding of the policy. Even a policy with teeth won’t do anything, if people don’t know how to apply it. Fourth, monitor compliance with the policy and take corrective action when needed. A policy that’s not enforced might as well not exist. These four functions are purely managerial. Management may commit negligence on one or more of these functions regardless of whether the substantive content of the policy reflects professional malpractice.
In some cases, there may be a gray zone in which it’s not obvious whether an act counts as ordinary or professional malpractice. As to some tasks, it may be obvious even in the abstract whether negligence would be ordinary or professional. But there’s a gray zone, too. If disputes arise, they may require the Court to draw lines and determine which acts are on which side of the line. For tasks in the gray zone, the answer will depend on the specifics — What task is at issue? Who performed it? Under what circumstances? Was any medical judgment beyond ordinary common sense involved? The line-drawing is a question of law for the Court, much like a decision on summary judgment — based on facts. Before we’ve had discovery on these issues, however, the facts are not available. Fact-free line-drawing at the pleading stage would be drawing in the dark.
In any event, the possibility of professional malpractice in creating WAMC’s dysfunctional system does not exclude the possibility of ordinary negligence in creating the dysfunction.
4. Motion for Sanctions
Wellstar and their counsel must know their motion is frivolous, yet they require the Court and its staff to spend time and energy to address it. If we can be allowed to speak more candidly than politely, any professional lawyer knows there is no merit — none — to an argument that as a matter of law, it’s impossible that Wellstar’s management committed negligence. That’s the unspoken but necessary premise of Wellstar’s motion. On the long-established law governing motions to dismiss, that premise is frivolous.
We have two grounds for saying Wellstar and their counsel know the argument is frivolous. First, anyone who passed law school would have to know it. Second, Wellstar conspicuously fails even to acknowledge the premise of their position. The premise goes unspoken because it’s too obviously meritless to bear saying out loud.
We are lawyers, and we have no interest in impediments to lawyers taking novel, aggressive positions that depart from custom. If that were what Wellstar is doing here, we’d tip our hats out of professional respect. But that’s not what they’re doing.
Too many people need the Court’s time and attention. Wellstar’s tactical wasting of judicial resources burdens not only us, not only the Court, but all the other parties who line up at calendar calls to hear when their cases might be tried. In the interest both of a sort of self-defense by the Court, to safeguard its own resources, and in the interest of all the Georgia citizens with serious disputes to be heard, we suggest the Court should impose just enough of a sanction to remind Wellstar and their counsel that they shouldn’t do this sort of thing. The alternative is to silently signal that it’s OK to waste judicial resources with such motions. There’s no neutral option: It’s either OK, or it’s sanctionable.
We like and respect Wellstar’s highly capable counsel, and we suppose the driving force here is Wellstar, not their counsel. In any event, we suggest an essentially symbolic sanction in the form of costs of $2,000 to be paid to the Atlanta Legal Aid Society.
Georgia statutes authorize such sanctions. See OCGA 9-15-14. See also Contract Harvesters v. Clark, 211 Ga. App. 297, 299 (1993).
CONCLUSION
To justify dismissal, Wellstar must show that it’s impossible any Wellstar employee other than a licensed physician or nurse committed negligence. Wellstar cannot show that. They haven’t tried to show it. They haven’t even made the bare, unsupported assertion.
Additionally, to justify dismissal, Wellstar must also show that it’s impossible any licensed physician or nurse employee committed negligence in a purely managerial or administrative function. Again, Wellstar can’t show that, hasn’t tried to show it, and doesn’t even assert it.
The law rejects Wellstar’s motion to dismiss. Damien Robinson asks the Court to deny the motion.
November 29, 2021
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
dan@BellLawFirm.com
Attorneys for Plaintiff
In the State Court of DeKalb County
State of Georgia
DAMIEN ROBINSON
Plaintiff,
— versus —
JAMES A. ARMSTRONG, MD,
ELIZABETH BLEAKLEY, PA,
THOMAS M. HOLMES, MD,
BRETT S. HORGAN, DO,
JEFFREY D. SCHULZE, MD,
RICHARD J. KLEIMAN, MD,
WELLSTAR MEDICAL GROUP, LLC,
PAULDING MEDICAL CENTER, INC., and
KENNESTONE HOSPITAL, INC
QUANTUM RADIOLOGY, P.C.,
APOLLOMD, INC.,
PRINCIPALS OF THE INDIVIDUAL DEFENDANTS
Defendants
Civil Action
File No. 19 A 76120
HON. MIKE JACOBS
Plaintiff’s Response to
Wellstar Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint
The undersigned has served PLAINTIFFS’ RESPONSE TO WELLSTAR’S MOTION TO DISMISS FOURTH AMENDED COMPLAINT on all counsel of record, by filing the document with Odyssey EfileGA.
November 29, 2021
/s/ Dan Holloway
Daniel E. Holloway
Georgia Bar No. 658026
[1] https://www.wellstar.org/about-us/executive-leadership.
[2] See https://nahq.org/certification/certified-professional-healthcare-quality.
[3] See http://www.ihi.org/education/cpps-certified-professional-in-patient-safety/Pages/default.aspx.
[4] https://www.indeed.com/jobs?q=wellstar%20safety&l=Marietta%2C%20GA&vjk=5ec3b99451d695b3
[5] https://www.indeed.com/jobs?q=wellstar%20safety&l=Marietta%2C%20GA&vjk=43bc5b987abddda2
[6] https://www.indeed.com/jobs?q=wellstar%20culture&l&vjk=43bc5b987abddda2.