How a Georgia Supreme Court ruling might affect a $3M verdict in a Hall County medical malpractice case

Feb. 27—A footnote in a Georgia Supreme Court opinion may affect a Hall County medical malpractice case in which a jury previously granted a $3 million verdict against Northeast Georgia Medical Center, according to court documents.

A Hall County Superior Court jury granted a $3 million verdict March 23, 2021, favoring the family of Frances "Suzi" Mitchell, 42, of Jackson County. Mitchell's two adult children were listed as the plaintiffs against Northeast Georgia Health System, the medical center and Dr. Andrew Green.

The original lawsuit claimed Green pierced Mitchell's small intestine during a May 3, 2016, surgery to remove an ovarian mass. Mitchell died four days later.

"An autopsy revealed that a small perforation or hole in her bowel had caused an abdominal infection, resulting in her death," according to a summary from the Georgia Court of Appeals. "The medical examiner who conducted the autopsy concluded that the perforation occurred during the surgery performed by Green."

The Georgia Court of Appeals vacated the judgment in March 2022, ruling that Mitchell's estranged husband was the proper party to file the wrongful death claim.

The Georgia Supreme Court granted review to consider a Thomas County wrongful death medical malpractice case, Hamon v. Connell. The wrongful death case was brought by the deceased man's daughter instead of his wife, who had been separated from the man for some time.

The high court reviewed the case to see if the trial court made a mistake in allowing the man's daughter to pursue the wrongful death case. The Georgia Court of Appeals previously reversed the trial court's decision regarding Connell, which was used to decide Mitchell's case.

The Wrongful Death Act in Georgia states that a decedent's child or children can pursue a claim if there is no surviving spouse.

"However ... under certain circumstances, Georgia courts have applied equitable principles to allow someone other than the decedent's surviving spouse to pursue a wrongful death claim to benefit a decedent's children," the Georgia Supreme Court justices wrote in their unanimous opinion on Feb. 7.

In a footnote before the last page of the opinion, the justices wrote that they "overrule" the Northeast Georgia Medical Center ruling that relied on the Georgia Court of Appeals prior ruling in the Connell case

The attorney for Mitchell's family, Kenneth Lewis, filed a motion Feb. 16 to reinstate the March 2021 verdict citing the Connell case.

Lewis also filed an amicus brief for the Georgia Supreme Court's consideration in the Connell case, according to a footnote in the court's decision.

Typically, a ruling like the Feb. 7 opinion would apply to all subsequent cases.

Lewis, however, argued in his motion that this falls under an exception when an "interpretation of the law involves a statute that has been interpreted differently by the Georgia Supreme Court."

"In addition, neither side would be inappropriately injured by the reinstatement of the judgment," Lewis wrote. "Reinstatement conserves judicial resources as well."

Attorney M. Scott Bailey, who is representing the health system, wrote in an email to The Times that he was not authorized to comment "beyond saying that we disagree with the premise that the decision 'overturns'" the case.

NGHS spokesman Sean Couch said the hospital would not add anything beyond Bailey's response to The Times over email.