Law360 (February 16, 2023, 8:01 PM EST) – A group of health care providers asked the Georgia Court of Appeals on Thursday to overturn a trial court judge’s denial of their motion for a new trial in a case in which a jury awarded $8.5 million to a widower who alleged that the providers’ failure to diagnose his wife’s cancer caused her death.
Attorney Sarah Akinosho, who represents Preferred Women’s Healthcare LLC, Lisa Dickerson and Mary Long, said the jury verdict was “inconsistent on its face” because it awarded zero damages for wrongful death but found the providers liable for Debbie Sain’s funeral and burial expenses. An award for funeral and burial expenses would only be permitted if the providers had been found liable for Sain’s death, she said, and they were not, rendering the jury’s verdict inconsistent and a new trial necessary.
Akinosho cited the 1996 Georgia Court of Appeals case Bunch v. Mathieson Drive Apartments Inc. as evidence of her position, explaining that in that case the court found that a trial court’s failure to grant a new trial after a plaintiff was awarded “zero” for wrongful death and “100%” for funeral and burial expenses was an abuse of discretion. The court found that verdict to be “inexplicable,” Akinosho said in briefs filed before the hearings on Thursday, and deemed it “too uncertain to be the basis of a valid judgment.”
Judge Sara Doyle asked Akinosho how this differed from a jury “in the criminal world” deciding that they were going to convict someone of one crime but not another in order to be lenient, saying that can sometimes appear inconsistent but is permitted.
“Can’t the jury say, ‘We think you made a mistake here, but we recognize that at some point [Debbie Sain] was going to die because of her cancer, and so while we’re not going to hold you completely accountable for that. He had these funeral expenses, so we’re going to give that to him?'” Judge Doyle asked.
Akinosho said that would not be permitted.
“In this situation, the jury can’t decide that,” Akinosho said. “As humans, I’m sure the jury wasn’t saying her wife was worth nothing. What they were saying is they weren’t awarding any damages, which is in essence a defense verdict on that point. At the same time, they’re saying there are funeral and burial expenses the defendants are responsible for. That’s inconsistent.”
Judge Doyle asked why a new trial would be necessary as to both liability and damages, wondering whether the trial court could fix the purportedly inconsistent verdict by going back to “clarify the damages portion.”
“The jury found against 3 different defendants. Each of those defendants have different arguments as it relates to liability, specifically as it relates to causation, and the jury can find very differently on each of those as to wrongful death and the funeral and burial expenses,” Akinosho said. “So, the only appropriate remedy, I would submit to the court, is a motion for a new trial on both liability and damages.”
Mark Meliski, an attorney representing widower Jason Sain, told the appellate court that a new trial isn’t necessary because the jury’s verdict wasn’t inconsistent. According to him, the case wasn’t only a wrongful death case. There was also a “separate and distinct” estate claim related to the “hastening” of Debbie Sain’s death, he said, contending that the funeral and burial expenses were awarded as part of that claim.
Meliski further argued that in awarding the funeral and burial expenses under the estate claim, the jury did exactly what the health care providers and their attorneys “asked them to do,” saying the providers had asked the jury at trial to consider that Debbie Swain would only have lived a few more years and that issuing an award for the full value of “an otherwise normal life” wouldn’t be appropriate. Specifically, he said they encouraged the jurors to award $1 million a year for two years.
“The negligence question was never in issue,” Meliski said. “What was in issue was: was she going to live, or did she die prematurely? That’d be insufficient to meet the wrongful death standard for causation, but it’s sufficient under the estate claim.”
Judge Phillips asked whether the jury needed to find that the providers “caused” Swain’s death in order to award the expenses under the estate claim.
“There’s a requirement to find that they hastened her death,” Meliski responded. “That’s what we have here. That’s what they conceded to.”
“So then, the award of zero damages for wrongful death, what does that mean in this case?” Judge Phillips asked. “It doesn’t mean the jury found they weren’t responsible at all for the death?”
“It means the jury found them responsible for hastening her death and that she didn’t meet the causation requirements under the wrongful death statute,” Meliski responded.
According to court records, Debbie Sain died in December 2013, approximately 11 months after she was first diagnosed with squamous cell carcinoma arising from a mature ovarian teratoma.
In his lawsuit, filed in July 2014, Jason Sain alleged that ultrasounds taken at Preferred Women’s during Debbie Sain’s pregnancy identified that she had an ovarian mass that made it difficult to see her right ovary. Those findings were never communicated or discussed with him or his wife, he said, and the providers never followed up on what they saw. That remained true even after the c-section delivery of their son, he alleged, even though the doctors performing that procedure should’ve noticed Debbie Sain’s right ovary wasn’t visible and that a mass was present.
Following the birth of their son, Jason Sain said his wife began to experience abdominal pain and visited Gwinnett Medical Center, where a CT scan of her abdomen showed that the mass had ruptured. Debbie Sain was hospitalized repeatedly for extended periods of time and underwent several complex surgeries following the rupture, according to the complaint, but ultimately died as a consequence of the ruptured mass.
Had the providers properly assessed the mass early on, followed it and treated it, Jason Sain contended that his wife would likely have lived longer and with less pain, saying their failure to do constituted medical negligence.
The case went to trial in March 2022, and the jury ultimately awarded $8,520,182.60 in favor of Sain.
According to court records, $1,013,226 went to Debbie Sain’s past medical expenses, $6,956 was awarded for funeral and burial expenses, $500,000 was awarded for Jason Sain’s loss of consortium and $7 million was awarded for “past non-economic damages” for Debbie Sain’s physical, mental and emotional pain, injury, suffering, inconvenience and physical impairment. The jury awarded zero in damages for wrongful death.
The health care providers filed a motion for a new trial in June 2022, claiming the jury’s verdict was inconsistent and therefore void, and the trial court denied that request in August 2022. The providers appealed later that month.
Judges Herbert E. Phipps, Sara Doyle and Elizabeth Gobeil sat on the panel for the Georgia Court of Appeals.
Sain is represented by Roy E. Barnes, Mark D. Meliski and John R. Bevis of The Barnes Law Group LLC.
The health care providers are represented by R. Page Powell Jr., Daniel J. Huff and Sarah E. Akinosho of Huff Powell & Bailey LLC.
The case is Preferred Women’s Healthcare LLC et al. v. Jason A. Sain et al., case number A23A0413, in the Georgia Court of Appeals.