The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Goldstein Garber & Salama v. J.B., decided February 27, 2017, and determined that the Defendant was entitled to a directed verdict at trial. Plaintiff was one of a number of patients who were sexually assaulted while sedated by a certified registered nurse anesthetist (CRNA) who worked at the Defendant’s dental practice as an independent contractor. The acts of the CRNA were captured on his cell phone which was later discovered hidden in the practice’s employee restroom. Prior to the discovery, the practice was unaware of the CRNA’s actions. Plaintiff filed suit against the CRNA and the dental practice. Plaintiff later dismissed the CRNA when he pled guilty to criminal charges and received a life sentence, but the case continued against the dental practice. Plaintiff claimed that the Defendant was negligent in its supervision of the CRNA, and negligent per se based on O.C.G.A § 43-11-21.1(a) for failing to have required permitting to administer or supervise a CRNA administering general anesthesia. After trial, a jury awarded the Plaintiff $3.4 million and apportioned 100% of the fault to the Defendant. The Court of Appeals affirmed the trial court 4 to 3.
After granting certiorari, the Supreme Court determined that the CRNA was an independent and intervening third party wrongdoer responsible for the Plaintiff’s injury. In this scenario, the Defendant may only be held liable for the actions of the CRNA if those actions were reasonably foreseeable, and a natural consequence of the Defendant’s failure to properly supervise him. The Court was not persuaded by the Plaintiff’s argument that dentists are generally aware of instances where patients are abused while under anesthesia. In this matter, the Court found that the Defendant had no prior knowledge of the CRNA’s intervening criminal acts, and that those acts were not reasonably foreseeable. Furthermore, sexual assault is not the probable or natural consequence of failing to supervise an otherwise qualified nurse anesthetist. Accordingly, a directed verdict was warranted.
The Supreme Court further held that the Court of Appeals erroneously found that sexual assault was a harm contemplated by the statute governing dentists and general anesthesia, O.C.G.A § 43-11-21.1. In order for the Defendant to be found negligent per se for a violation of the statute, the Plaintiff must be considered to be within the class of persons that the statute was designed to protect. Additionally, the harm suffered by the Plaintiff must be one that the statute contemplates guarding against. In its ruling, the Court of Appeals cited a section in the same chapter as the above statute which stated the chapter’s purpose was to guard against unlicensed activities that negatively affect the “public health, safety and welfare,” and therefore would include sexual assault. While the Supreme Court found that the statute applied to patients like the Plaintiff, it did not find that the statute applied to the harm. The Court stated that the statute clearly applies to concerns regarding medical complications which may arise in a dental setting from the improper administration of anesthesia. Because this would not include sexual assault, the trial court should have granted a directed verdict. After ruling in favor of the Defendant, the Supreme Court declined to address whether the Defendant waived any objection to the apportionment of fault.
This is not the first time that the acts of this particular CRNA have been the basis of a lawsuit against a medical group. In 2011, Carlock, Copeland & Stair, LLP defended a group of plastic surgeons who had hired the CRNA as an independent contractor to administer anesthesia. A similar video of a patient was discovered and that patient later filed a complaint alleging ordinary and professional negligence. At the motion for summary judgment, Wade Copeland successfully argued that the CRNA’s acts were not reasonably foreseeable and that the surgical practice had no prior knowledge of the acts. The Cobb County trial court’s decision to grant the Defendant’s motion for summary judgment was not appealed.
The take-home is that unforeseeable criminal acts, such as sexual assault, committed by an independent contractor may not be imputed to the hiring party without prior knowledge of wrongdoing by that particular actor. Such acts are also not contemplated by statutes designed to regulate health care and medical professionals, and therefore may not be the basis of a negligence per se claim.