Georgia Panel Greenlights $8M Cancer Death Verdict

By Y. Peter Kang

Law360 (June 1, 2023, 8:00 PM EDT) – Two doctors and a medical clinic on the hook for an $8.5 million jury verdict in a lawsuit alleging they failed to timely diagnose a pregnant woman’s abdominal cancer can’t get a new trial, after a Georgia appeals court rejected their argument that the jury’s verdict was inconsistent.

A three-judge panel of the Court of Appeals of Georgia on Wednesday denied the health care providers’ bid for a re-do in a medical malpractice and wrongful death suit against Drs. Byron Dickerson and Mary Long and Preferred Women’s Healthcare LLC. They were accused of failing to diagnose an abdominal mass that appeared on patient Debbie Sain’s ultrasound while the 36-year-old was pregnant in April 2012. The patient gave birth in November 2012, and died of cancer in December 2013, according to the opinion.

The verdict consisted of $7 million for Debbie Sain’s noneconomic damages, such as pain and suffering, about $1 million for past medical expenses, $500,000 for widower Jason Sain’s loss of consortium and $7,000 for funeral expenses, but nothing for wrongful death, court papers show.

The health care providers had argued that because the jury awarded zero damages for wrongful death, but found them liable for funeral expenses, the verdict was impermissibly inconsistent and warranted a new trial.

The panel disagreed on Wednesday, however, saying the caselaw upon which the providers relied, the Georgia Court of Appeals’ 2016 ruling in Bunch v. Mathieson Drive Apartments, was not comparable because in Bunch, the decedent died in an apartment fire due to the building’s failure to install a smoke detector.

In Bunch, zero damages for wrongful death and $7,050 for funeral expenses was deemed a contradictory verdict and overturned because there was no other indication the decedent would’ve died of anything other than the fire, the judges noted. But for Sain, one defense expert testified that she had a high chance of dying of the aggressive cancer just as quickly had it been identified, diagnosed and removed in a timely manner, according to the opinion.

“The jury reasonably could have found that, while the defendants’ negligence was the immediate cause of Debbie’s death (thus justifying the award of funeral expenses), Jason did not meet his burden as the plaintiff of establishing by a preponderance of the evidence a meaningful, reasonable monetary value for the jury to award as damages on his wrongful death claim, given the sharply conflicting evidence that was presented as to Debbie’s life expectancy,” the opinion states.

The panel said given the jury’s finding that the health care providers were negligent, a reasonable reading of the verdict “is that the jury found against the appellants on the wrongful death claim, but also found that Jason did not meet his burden of establishing a reasonable, meaningful amount of damages on that claim.”

An attorney for Jason Sain, Mark Meliski, told Law360 on Thursday he was satisfied with the ruling.

“This well-reasoned and correct decision is a just affirmation of the hard work put in by 12 Gwinnett County jurors last March, all of whom fully understood how tragic and preventable Debbie Sain’s course of treatment was,” he said via email.

An attorney for the health care providers did not immediately respond to a request for comment.

Debbie Sain died in December 2013, approximately 11 months after she was first diagnosed with squamous cell carcinoma arising from a mature ovarian teratoma, according to court papers.

The July 2014 complaint alleged the 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 Jason Sain or his wife, he said, and the providers never followed up on what they saw.

About two months after giving birth, Debbie Sain went to an emergency room complaining of abdominal pain, and a CT scan of her abdomen showed the mass had ruptured, according to the complaint.

Debbie Sain was hospitalized repeatedly for extended periods of time, and underwent several complex surgeries following the rupture, the suit said, but ultimately died as a consequence of the ruptured mass.

Had the providers properly assessed the mass early on, followed it and treated it, Debbie Sain would likely have lived longer and with less pain, her husband contended, saying the doctors’ failure to do so constituted medical negligence.

Judges Herbert E. Phipps, Sara Doyle and Elizabeth Gobeil sat on the panel.

Sain is represented by Mark D. Meliski, Roy E. Barnes and John R. Bevis of The Barnes Law Group LLC.

The health care providers are represented by Sarah E. Akinosho, R. Page Powell Jr. and Daniel J. Huff of Huff Powell & Bailey LLC.

The case is Preferred Women’s Healthcare LLC et al. v. Sain et al., case number A23A0413, in the Court of Appeals of Georgia.

–Additional reporting by Kelcey Caulder. Editing by Covey Son.