Lady Justice
ATLANTA — A Georgia appeals court ordered the state to pay $3 million to the parents of a child who died of complications stemming from the treatment of lymphoma, affirming a sharply lower payout on a case that originally produced a $37 million jury verdict.
A trial judge had reduced the judgement to $2 million under a law limiting the state’s liability to $1 million per “person,” treating the parents as one person and the child’s estate as another. But the Georgia Court of Appeals called that an error and interpreted the sovereign immunity statute to mean each parent qualified as a separate person.
The appeals court increased the judgement to $3 million and added an award of attorney fees and expenses, since the higher amount was more than 125% of the plaintiffs’ pretrial settlement offer of $1.75 million.
Bryce Warren and April Bradshaw sued the University of Georgia after their child died at the August University Medical Center from conditions including Stevens-Johnson Syndrome, which causes widespread destruction of the skin. The child was admitted with a diagnosis of Burkitt’s lymphoma and underwent surgery to insert a port for chemotherapy. He responded to treatment but doctors then had to administer allopurinol, a medication that controls tumor lysis syndrome, which can destroy the kidneys.
Allopurinol can trigger skin sloughing, and jurors were told a dermatologist wasn’t consulted for a week, after which doctors halted the drug. By that time the child had Stevens-Johnson and other complications including bleeding in the lungs and sepsis. He died less than a month after being admitted to hospital.
The parents sued the state and a jury awarded them $37 million plus attorney fees and expenses. Before trial, the parents submitted a brief arguing they were entitled to $3 million under the Georgia Tort Claims Act’s recovery limits, with each parent being defined as a “person.” The trial judge reduced the award to $2 million, however, interpreting the statute to define the parents as a single person. Since that was less than the $2.18 million required to win attorney fees under a separate statute, the judge denied those, too.
The parents appealed and the court of appeals increased the judgment to $3 million plus fees in an Oct. 28 opinion by Judge J. Wade Padgett. The Tort Claims Act limits recoveries to $1 million per person and a total of $3 million defining “person” as a “natural person, corporation, firm, partnership, association, or other such entity.”
Georgia Supreme Court decisions have treated individual parents as separate persons, however, including in a case where one parent recovered nothing for the death a child the jury determined to be largely her own fault, but the father was allowed to sue on his own. In this case, the appeals court said, each parent plus the estate of the child were entitled to $1 million.
The parents argued pretrial a higher verdict was justified because doctors made 14 separate errors justifying $1 million payouts for each. The court rejected that because the parents argued before trial that they were only entitled to $3 million, and the judge issued an order confirming that.
“The pretrial order has been likened to ‘a rudder to the ship of litigation,’” the appeals court said, and the parents weren’t entitled to make a different argument later.
The parents also lost their request for emotional damages, which they said were due to the doctors not informing them of why their child died. But they failed to specify that in pre-suit demands to the state.
“Thus, we conclude that the parents’ ante litem notice did not sufficiently state the nature of loss they allegedly suffered as it concerned their emotional distress,” the court concluded.
