- Court
- Court of Appeals of Georgia
- Year
- 2025
- Case
- Ga. Bone & Joint Surgeons v. Keel
- Citation
- 376 Ga. App. 79
- Decided
- June 26, 2025
Expert testimony that understaffing made it impossible to perform a full ACLS code and that proper staffing would have improved the patient's condition was sufficient evidence of causation. The trial court also acted within its discretion in considering a contingency-fee agreement, along with hours and rates, when awarding fees under OCGA 9-11-68.
Summary
The Court of Appeals of Georgia affirmed a $6.5 million medical-malpractice judgment and a $1.82 million attorney-fee award against Georgia Bone & Joint Surgeons, P.C. The case involved a patient who suffered a hypoxic brain injury after cardiac arrest while recovering from knee surgery at a surgical center.
The appellate court affirmed the liability and fee rulings, but vacated and remanded a supersedeas-bond order for further findings on the defendant’s claim of indigence.
Issues Decided
Causation evidence in an understaffing case
Decision
The court held that the plaintiff presented sufficient evidence of causation to support the jury’s verdict against the surgical center.
Facts
Margaret Keel suffered a hypoxic brain injury due to cardiac arrest while recovering from knee surgery. At the time, Georgia Bone & Joint had two nurses on duty. The plaintiff’s expert testified that the center violated the standard of care by understaffing the recovery area, which prevented the nurses from performing a full Advanced Cardiac Life Support code.
The expert testified that a full ACLS code requires at least four people and that proper staffing would have improved Keel’s outcome by reducing oxygen deprivation to the brain.
Reasoning
The court found that this testimony gave the jury a sufficient basis to connect the staffing breach to the patient’s injury. The expert did not merely say that more staff would have been preferable; he linked the breach to a specific inability to perform standard emergency care and to an improved clinical outcome if proper staffing had been present.
Jury instructions
Decision
The trial court did not commit reversible error by refusing requested instructions on experts’ personal practices and the absence of a guaranteed medical result.
Facts
The defendant requested a “differing view” instruction and a “no guarantee” charge. The trial court refused them, relying instead on the general standard-of-care instructions.
Reasoning
The Court of Appeals found the jury was adequately charged on standard of care and expert credibility. Any omission of the “no guarantee” charge was harmless because the jury was otherwise instructed that negligence cannot be inferred from the mere occurrence of an injury.
Attorney fees under OCGA 9-11-68
Decision
The trial court did not abuse its discretion in awarding $1.82 million in attorney fees based partly on a 40 percent contingency-fee agreement.
Facts
Keel made a $2 million settlement offer that Georgia Bone & Joint rejected. The jury’s verdict exceeded 125 percent of the offer, triggering OCGA 9-11-68(b)(2). Keel’s counsel submitted evidence of the contingency agreement, attorney experience, and more than 700 hours of work.
Reasoning
Georgia law permits a court to consider a contingency-fee agreement as evidence of usual and customary fees. The award stood because the trial court did not rely on the contingency agreement alone; it also considered hours, rates, attorney experience, and litigation complexity.
Supersedeas bond and indigence
Decision
The trial court erred by imposing a $7.5 million supersedeas bond without addressing the defendant’s affidavit of indigence.
Facts
An affidavit filed for Georgia Bone & Joint stated that the practice could not pledge sufficient collateral for a bond. The trial court granted the plaintiff’s motion for a bond without holding a hearing or making findings on indigence.
Reasoning
Under OCGA 5-6-47, an affidavit of indigence acts as a supersedeas unless traversed and resolved by the trial court. Because the trial court did not address the affidavit, the bond order had to be vacated and remanded.
Commentary
The causation ruling is the most useful part of the opinion for understaffing cases. The plaintiff’s expert connected the staffing breach to a specific failed emergency response: two nurses could not perform a full ACLS code, and a full code would have reduced oxygen deprivation. That was enough to support causation without requiring the expert to quantify the exact probability of a better outcome.
The fee ruling is also practical. A contingency agreement can support an OCGA 9-11-68 fee request, but the safer record includes time, rates, attorney experience, and case complexity. The trial court’s award survived because the contingency percentage was not the only evidence of reasonableness.
