Retrial of an Obstetrical Medical Malpractice Case: Better Than Reality TV


I have tried numerous medical malpractice cases in Georgia over the last several years. I represent only plaintiffs, the victims of someone else’s carelessness or negligence. Even after trying cases in Georgia for 25 years I still enjoy watching great trial lawyers try cases. It’s better than anything reality TV can show. So I hope I can carve out some time this week to watch part of the retrial in Sutton v. Bauer, in which jury selection started today in Cobb County State Court. This is the retrial of a medical malpractice (remember: malpractice simply means carelessness by a doctor) case that ended in a hung jury at the close of the first trial because the jury could reach a verdict on one defendant but not all defendants. The Court’s decision to enter a mistrial was appealed by the hospital to the Georgia Court of Appeals in Wellstar v. Sutton, 318 Ga.App. 802 (2012) and the appellate court affirmed the trial judge’s decision. Since that appellate opinion, the hospital, Wellstar, is no longer a defendant in this retrial, which, presumably, means there was a settlement between Wellstar and Plaintiff, but that would be probably be confidential. So this retrial is against the obstetrician who delivered the baby. The plaintiff is represented by well-known and well-respected consummate trial lawyer, Tommy Malone, and his son, Adam Malone, is assisting in the trial. I had the distinct pleasure of trying a medical malpractice (also a retrial after a hung jury in the first trial) with Adam Malone as my co-counsel in October of last year in Fulton County State Court. I hope to be able to watch a little bit of the Sutton trial and will give you my thoughts on how the jury and the evidence. Stay tuned….

Second Trial to Start in Cobb for $50M Med-Mal Case
By Katheryn Hayes Tucker Contact All Articles
Daily Report
January 6, 2014
A potential $50 million medical malpractice case that ended in a mistrial two years ago is set for a new trial starting Monday before Cobb County State Court Judge Kathryn Tanksley.

Plaintiffs’ attorney Tommy Malone asked the jury for a verdict of at least $50 million for the family of a brain-damaged baby in the August 2011 trial, which ended with a hung jury. As they were leaving the courthouse, jurors revealed to Malone that they would have voted against him and in favor of WellStar Health System Inc., but they couldn’t reach an agreement with regard to the liablity of the obstetrician, Dr. Gregg Alan Bauer, and his practice group, OB-GYN Affiliates.

WellStar later appealed the judge’s decision to declare a mistrial instead of asking the jury to give a partial verdict. The judge declined to take a verdict for only one defendant because of the change in the apportionment statute. The Georgia Court of Appeals upheld Tanksley. The Georgia Supreme Court declined to review that case.

The new trial will proceed against the doctor only. The hospital “is no longer a party,” said Henry Green of WellStar’s defense firm, Green & Sapp. Malone confirmed the hospital and the plaintiffs had “resolved” their differences.

In the first trial, Malone and his son and partner, Adam Malone, presented a $20 million life care plan for the baby, and cntended that a C-section would have prevented his problems. The doctor’s defense counsel, Daniel Huff of Huff, Powell & Bailey, argued in the first trial that a C-section was not clearly indicated and that the baby’s brain damage likely started before birth from an infection. The doctor and his practice are insured by MAG Mutual Insurance Co., according to the consolidated pre-trial order. The case is Sutton v. Bauer, No. 2009A81944.

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