The Georgia Supreme Court has declined to grant certiorari in a high-stakes medical malpractice case arising from complications following a knee replacement surgery, leaving undisturbed an $8.3 million verdict against Georgia Bone & Joint Surgeons PC. The court’s unanimous denial preserves not only a substantial compensatory damages award, but also a significant attorney fee ruling and a Court of Appeals decision addressing the scope of required jury instructions in medical malpractice trials.
Although the Supreme Court issued no majority opinion, a concurring statement by Justice Charles Bethel offers important guidance for trial courts and litigators, particularly on the interpretation of prior precedent governing jury charges related to expert testimony about personal clinical practices. For attorneys litigating professional negligence cases, the concurrence clarifies the limits of Condra v. Atlanta Orthopaedic Group and reinforces trial court discretion in tailoring jury instructions to the evidence presented.
Factual Background and Alleged Postoperative Failures
The underlying malpractice action arose from a knee replacement surgery performed on plaintiff Margaret Keel in 2018. According to the trial record, the surgery itself was completed without complication. Postoperatively, Keel was transferred to a post-anesthesia care unit (PACU), where she was administered narcotic pain medications.
Because narcotics are known respiratory depressants, Keel was placed on a CPAP machine to assist with breathing and maintain adequate oxygen saturation. During the overnight postoperative period, however, Keel was found unresponsive, with her CPAP mask removed. Nursing staff were unable to detect a pulse, necessitating defibrillation and an emergency transfer to a hospital.
Keel was placed in a medically induced coma in an effort to preserve neurological function. She later alleged that the cardiac arrest and resulting hypoxic event caused permanent brain damage, leaving her unable to live independently and requiring long-term assisted living care.
Keel filed suit against Georgia Bone & Joint Surgeons PC, the operating surgeon, and a nurse involved in her postoperative care. Her claims centered not on the surgical procedure itself, but on alleged failures in postoperative monitoring, staffing, and institutional protocols designed to protect patients receiving narcotics.
Jury Verdict and Allocation of Responsibility
Following trial, the jury returned a verdict finding Georgia Bone & Joint liable for Keel’s injuries. The jury awarded $6.5 million in compensatory damages, reflecting medical expenses, future care costs, and loss of quality of life. The trial court also awarded $1.8 million in attorney fees.
Notably, the jury declined to impose liability on either the individual surgeon or the nurse named as defendants. This allocation of fault reflects a critical distinction often litigated in modern medical malpractice cases: the difference between individual clinical decision-making and systemic or institutional failures.
Jurors apparently concluded that the harm resulted not from a physician’s exercise of professional judgment, but from broader deficiencies in staffing levels, patient monitoring, and postoperative safety systems attributable to the practice itself. For healthcare entities and their counsel, the verdict underscores the increasing exposure associated with organizational practices rather than bedside conduct alone.
Appellate Challenge and the Jury Instruction Dispute
Georgia Bone & Joint appealed, asserting that legal errors during trial required reversal or a new trial. Central to the appeal was a challenge to the jury instructions relating to expert testimony.
The practice argued that the trial court erred by failing to instruct jurors on how to evaluate testimony regarding a medical expert’s personal clinical practices. Relying on the Georgia Supreme Court’s 2009 decision in Condra v. Atlanta Orthopaedic Group, the appellant contended that when experts testify about how they personally perform procedures or manage patient care, jurors must be instructed that differences in professional opinion alone do not establish a breach of the standard of care.
Absent such an instruction, Georgia Bone & Joint argued, jurors could improperly conflate disagreement among physicians with actionable malpractice—particularly in cases involving competing expert testimony about postoperative protocols and monitoring.
The Court of Appeals rejected this argument, and the Supreme Court declined to review that decision.
Justice Bethel’s Concurrence: Clarifying Condra’s Reach
While the denial of certiorari leaves the lower court ruling intact without precedential force, Justice Bethel’s concurrence provides meaningful clarification for practitioners. Addressing the appellant’s reliance on Condra, Justice Bethel explained that the 2009 decision addressed only the admissibility of personal-practices testimony, not a mandatory requirement for a specific jury instruction whenever such testimony is introduced.
“As Condra addressed only the narrow question of the admissibility of personal practices testimony in the medical malpractice context, its discussion about using jury instructions to head off potential juror confusion is not necessary to its result,” Justice Bethel wrote. “Our reflection on jury instructions thus was not a holding.”
In other words, Condra does not stand for the proposition that trial courts must give a particular jury charge whenever an expert discusses how they personally practice medicine. Any language in Condra suggesting the usefulness of jury instructions was dicta, not binding law.
For appellate attorneys, this distinction is critical. Arguments premised on alleged “mandatory” jury instructions must be grounded in actual holdings, not judicial commentary.
Reinforcing Trial Court Discretion Over Jury Charges
Justice Bethel’s concurrence also reinforces long-standing principles regarding jury instructions more broadly. He emphasized that pattern jury instructions are not binding law and should not be treated as rigid templates. Instead, trial courts have an obligation, and discretion, to tailor jury charges to the evidence and legal issues actually before the jury.
“It is black-letter law that jury instructions must be adjusted to the evidence in the particular case before the jury,” Justice Bethel wrote. “And trial courts should not hesitate to do so.”
The concurrence further clarified that testimony regarding an expert’s personal practices may be admissible both as substantive evidence and for impeachment, provided it otherwise satisfies evidentiary rules. How jurors assess that testimony, particularly in relation to the applicable standard of care, is ultimately a credibility determination entrusted to the jury.
Practical Implications for Medical Malpractice Litigators
The Supreme Court’s decision, and Justice Bethel’s concurrence, carry several practical implications for attorneys litigating medical malpractice cases in Georgia.
For defense counsel, the ruling highlights the uphill battle of overturning verdicts based on nuanced jury instruction arguments, particularly where no explicit legal mandate exists. Claims of instructional error must identify clear misstatements of law or omissions required by binding precedent, not merely the absence of language counsel would have preferred.
For plaintiffs’ attorneys, the decision affirms the viability of institutional liability theories grounded in staffing, monitoring, and systemic safety practices. It also reinforces trial courts’ flexibility in crafting jury instructions that reflect the realities of complex medical evidence, rather than defaulting to rigid pattern charges.
Finally, for trial judges, the concurrence serves as a reminder that jury instructions are a tool, not a script. Courts are encouraged to exercise discretion and adapt instructions to ensure jurors are properly guided without being constrained by nonbinding formulations.
By declining review, the Georgia Supreme Court has left intact a substantial malpractice verdict that underscores the legal and financial risks healthcare practices face when postoperative care systems are alleged to fall short of patient safety standards, and has quietly clarified the limits of one of the defense bar’s most frequently cited jury instruction arguments.
