Mother's Death Is Case Study for Tort Reform

The Bonner family's lawyer, Jason B. Branch, an attorney with Columbus, GA's, Philips-Branch, said the trial offers a case study as to how proposed tort reform in the Georgia Legislature would have made it more difficult to hold the doctor and hospital responsible for the woman s death and might have limited the damages. “This case should be the poster child of the unbelievable and egregious effects that Senate Bill 3 would have on the rights of the everyday citizens of Georgia.”

The lawyer defending the hospital, W. Scott Barber, and the physician's counsel, Jonathan C. Peters, agree it's a good case to investigate how proceedings would have been handled differently if the current changes to the civil justice code had been written into law. Peters wouldn't go so far as to say it would have changed the verdict. Both defendants have filed notices of appeal and are analyzing whether to pursue them, they said. “It would have changed the manner in which damages were proven, but whether it would have changed the outcome is uncertain,” said Peters, of Atlanta's Love Willingham Peters Gilleland & Monyak.

The Case

During the 2-week trial, jurors learned that Bonner grew up across the state border in Russell County, AL. She had worked several jobs, including as an assistant manager at a printing service. She married Joseph Daniel “Danny” Bonner in 1995, and by 2002 she was a stay-at-home mom with three young children. Like most homemakers, Tracy Bonner juggled a busy schedule preparing meals for the family, completing chores and taking care of her children – who were 2, 4 and 6 when she died – from the time they woke up to the time she put them to bed.

According to testimony, Bonner visited Beck, her gynecologist, after suffering from heavy bleeding during her menstrual cycle. On Aug. 8, 2002, Bonner underwent exploratory laparoscopic surgery, a procedure that required Beck to direct a scope inside her inflated stomach by placing three sharp-pointed surgical instruments called trocars around the pelvic area, one near the navel and two just below the beltline on each side of the body. While probing Bonner, Beck found only a simple cyst on her right ovary, which he drained. As he prepared to finish the surgery and remove the trocars, a problem developed: Removing the lower right trocar caused heavy bleeding, according to operation notes and court testimony. Beck tried to cauterize the bleeding with an operative scope — a high-tech foot-pedal-controlled device — but it would not function. As a nurse frantically checked the voltage, changed the settings and tried to find another cord for the equipment, Bonner s bleeding continued. Beck decided he had to act immediately and obtained a hand-controlled electrocautery unit to stop the blood flow. As he maneuvered the device, the scope fogged up. A nurse pulled it out to clean it but accidentally pulled the trocar out as well, essentially deflating the stomach on top of the still activated, hand-controlled electrocautery unit, according to Branch. When Bonner's stomach was reinflated, testimony revealed, Beck saw a small peritoneal tear and what Branch said could have been a burn – but no evidence of bleeding. At that point, a nurse finally got the operative scope running after discovering it had been plugged into the wrong electrical outlet, Branch said. The doctor then used the device to cauterize the bleeding trocar site, but he did not try to cauterize the tear.

Beck testified that he looked at the tear carefully but did not think it was a concern because there was no bleeding, his attorney Peters said. It later was discovered that a major artery to the leg had been scorched on the other side of the tear. After the operation, Beck told Bonner about the bleeding to her trocar site but not about the problems with the equipment, the burn or the tear. “Nobody thought it was of any significance,” Peters said. In Beck's operative report, he also did not mention the tear or the burn. The report said Bonner had “tolerated the procedure well” and left the hospital “in good condition.”

That night, Bonner's husband recalls her waking up three times, complaining that she needed to use the bathroom but could not. The next thing he remembers is hearing the crash of a glass of water falling off her bedside table. Scrambling to her side, he found his wife vomiting, moaning and gasping for air. He rushed her to the medical center, where an on-call surgeon found a mass of blood inside her pelvic area. The surgeon found the small tear, opened it and discovered behind it a burned artery that had ruptured in the night. Bonner died later that day, 1 day after her surgery. Her distraught husband left his job as a land surveyor shortly after her death to care for the couple's children. He soon took a job maintaining vending machines, but left that in the summer of 2004 because of the demands of raising three young children by himself. Since then, he has been working odd jobs for a brother-in-law who is a contractor. A family friend put him in touch with Branch's firm in September 2002, and the legal story begins there.

Doctor's Memo Was Smoking Gun

Eventually, Branch discovered what would be a smoking gun in the case, a memo that Beck had written to himself the day after Bonner's death. It was a document that was not initially provided to the plaintiffs. Because the memo was not a part of the patient's charts, Beck was advised by his previous counsel not to submit it as part of discovery, Peters said. But when Peters took the case, he thought it was appropriate that the document be submitted. In the memo, Beck voices his fear that the device accidentally burned Bonner. “I feel like the [cautery] fired when out of position,” he wrote.

The jury deliberated for 7 hours before assigning Bonner's family $2.5 million in general damages, an award Branch and other trial lawyers claim would not be possible under the restrictions of Senate Bill 3 because of its limit on noneconomic damages. But if SB 3 were made law, it might have consequences – favorable and unfavorable to both sides – beyond the damages award, both sides said.

The Economic Value of a Mother

Arguably the most controversial part of the Senate's tort reform bill is the provision that limits noneconomic damages for each health care provider to $250,000, up to an aggregate of $750,000. Accordingly, the most Bonner's family could secure under SB 3 for noneconomic damages, such as pain and suffering, would have been $500,000. Under current law, the jury isn't required to divide damages into economic and noneconomic categories, so there's no way to know how much of the judgment would have remained.

One change made in the Senate Judiciary Committee likely would have provided some relief to Bonner's family. Sen. Preston W. Smith, the committee's chairman, added “domestic and other necessary services performed without compensation” to the definition of economic damages after hearing testimony from victims advocates who said the original bill would have shortchanged homemakers, retirees and students. Barber, the hospital's lawyer, said he doesn't believe a cap would have made a big difference in Bonner's case because the awards were not based on pain and suffering. “It was about a 29-year-old mother of three and a wife,” said Barber, of Columbus, GA's Tisinger, Tisinger, Vance & Greer. Even with caps, he said, a jury likely would have awarded similar damages.

Under the proposed tort changes, a jury would have been charged with determining how to assign a monetary value to Bonner's homemaker duties. And Branch would have to do his best to highlight the magnitude of her household services. “I think the problem is trying to put that in economic terms as compared to the same woman who may have a corporate job with a W-2 form that says she makes $225,000,” he said. “Shouldn't life be worth more than the economic value associated with cleaning up her house and taking care of her kids?” Branch likely would have hired an economist to quantify his client's economic value, Barber said. And Barber, in turn, would have retained his own expert to dispute those figures, he said.

Who Pays, and How Much?

Currently, co-defendants in Georgia are held jointly liable, and a hospital found only marginally liable could have to pay the bulk of an award. In this case, Barber said, both co-defendants will split the $2.5 million verdict equally, although the plaintiffs could pursue the hospital for an increased portion. Beck, the doctor, had a $1 million insurance policy, while hospitals typically have greater coverage.

SB 3 would abolish joint and several liability, requiring a jury to apportion liability on a percentage basis. Under that bill, if the jury had assigned most of the liability to the doctor, then the plaintiffs conceivably would have had to pursue the doctor s personal assets to secure payment of the entire award, or be satisfied with the amount his insurance company would pay.

While the jury didn't assess relative liability in this case, most of the testimony focused on the doctor's performance. Barber, the hospital's lawyer, argued that Beck was the only at-fault party, while Peters, the doctor's lawyer, contended the hospital's staff didn't know how to handle the equipment properly. “From the very beginning, this case was a dispute not between the plaintiffs and defendants,” Branch said. “It was a dispute between the defendants as to who was more culpable than the other.” This issue has long been a priority for hospitals, and Barber said the Bonner trial is a clear example of why. After delivering their verdict, Barber asked jurors what percentages they would have allotted the hospital and the doctor. He said most jurors told him that they would have apportioned 70% to 75% to the doctor. “If we were only paying 30%, you're looking at saving half a million dollars for the hospital — a pretty substantial amount of money,” Barber said.

Experts Pass Muster

The attorneys on both sides called a total of four experts. All would have passed the stricter requirements set out in the Senate bill, the attorneys said. All were licensed in the state where they worked and had taught or practiced for at least 3 of the past 5 years — requirements for experts under SB 3. A more uncertain aspect would be the pretrial hearings to qualify an expert witness. SB 3 says that upon a motion by either party, the court would have to hold pretrial hearings, which are outlined in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Supporters of the provision hope that adopting the federal witness guidelines will help weed out “junk science” by more closely scrutinizing witnesses.

No Settlement

Branch never offered to settle with the hospital, but he did extend a $1 million offer to Beck. Beck's lawyer, Peters, said that offer was never “hammered out.” Under SB 3, if one party offers to settle and the other refuses, the latter would have to pay both parties' legal fees if a judgment is not at least 25% more favorable than the settlement offer. Presumably, because Beck owes $1.25 million — exactly within the provision's threshold — he would have to pay Branch's attorney fees under SB 3. Of course, a jury also would have to apportion a percentage of liability to Beck, which could change how much he owed. Barber said this provision would have encouraged both sides to reach a settlement. “It forces a realistic look at the value of the case,” he said.

Which Side Loses More Under the Bill?

Value is the theme that Branch comes back to in assessing the impact of SB 3 on his case. While some aspects of the bill wouldn't have hurt his case, or might have helped even, he can't get past the potentially devastating effect of damages caps. Although the value of Bonner s household duties would be included in the economic damages portion, the very notion of caps incenses him, he said. “All of the things that each of us really value in life were taken from her at the young age of 29,” Branch said. “To suggest that $250,000 and a privileged apology would begin to adequately compensate for this loss is completely out of touch.”

Tort reform is a hot topic all over the country, with advocates on both sides of the issue citing to particular cases and their outcomes as evidence for why damages should or should not be limited. Reforms other than damage caps are also being made or proposed, such as limitations on who may testify as a witness, on which cases can actually go to trial and on whether arbitration must first be attempted before trail can commence, among others.

Georgia Senate Bill 3, which the Senate passed and which is expected to pass in the House, is similar in many ways to reform legislation being pushed in other parts of the country. It calls for a cap on noneconomic damages at $250,000, or $750,000 if multiple tortfeasors are found liable, and requires certain minimum qualifications of expert witnesses. It also would force one who refuses a settlement offer to pay both parties' attorney fees if the eventual jury verdict is within 25% of the settlement offer amount. What will the effect of SB 3's final passage be on the typical medical malpractice case in Georgia?

While there may be no “typical” medical malpractice story, the case of Tracy Marie Bonner, a 29-year-old Columbus, GA, homemaker who died in 2002 after what was supposed to be a routine surgery, offers a fair example of the effects SB 3's reforms might have on a litigated medical malpractice case. On Jan. 21 of this year, a Muscogee County, GA, Superior Court jury awarded Bonner s family $2.5 million, jointly assigning liability to Dr. Ronald Beck, a Phenix City, AL, gynecologist; and the hospital, The Medical Center, in Columbus, GA.

The Bonner family's lawyer, Jason B. Branch, an attorney with Columbus, GA's, Philips-Branch, said the trial offers a case study as to how proposed tort reform in the Georgia Legislature would have made it more difficult to hold the doctor and hospital responsible for the woman s death and might have limited the damages. “This case should be the poster child of the unbelievable and egregious effects that Senate Bill 3 would have on the rights of the everyday citizens of Georgia.”

The lawyer defending the hospital, W. Scott Barber, and the physician's counsel, Jonathan C. Peters, agree it's a good case to investigate how proceedings would have been handled differently if the current changes to the civil justice code had been written into law. Peters wouldn't go so far as to say it would have changed the verdict. Both defendants have filed notices of appeal and are analyzing whether to pursue them, they said. “It would have changed the manner in which damages were proven, but whether it would have changed the outcome is uncertain,” said Peters, of Atlanta's Love Willingham Peters Gilleland & Monyak.

The Case

During the 2-week trial, jurors learned that Bonner grew up across the state border in Russell County, AL. She had worked several jobs, including as an assistant manager at a printing service. She married Joseph Daniel “Danny” Bonner in 1995, and by 2002 she was a stay-at-home mom with three young children. Like most homemakers, Tracy Bonner juggled a busy schedule preparing meals for the family, completing chores and taking care of her children – who were 2, 4 and 6 when she died – from the time they woke up to the time she put them to bed.

According to testimony, Bonner visited Beck, her gynecologist, after suffering from heavy bleeding during her menstrual cycle. On Aug. 8, 2002, Bonner underwent exploratory laparoscopic surgery, a procedure that required Beck to direct a scope inside her inflated stomach by placing three sharp-pointed surgical instruments called trocars around the pelvic area, one near the navel and two just below the beltline on each side of the body. While probing Bonner, Beck found only a simple cyst on her right ovary, which he drained. As he prepared to finish the surgery and remove the trocars, a problem developed: Removing the lower right trocar caused heavy bleeding, according to operation notes and court testimony. Beck tried to cauterize the bleeding with an operative scope — a high-tech foot-pedal-controlled device — but it would not function. As a nurse frantically checked the voltage, changed the settings and tried to find another cord for the equipment, Bonner s bleeding continued. Beck decided he had to act immediately and obtained a hand-controlled electrocautery unit to stop the blood flow. As he maneuvered the device, the scope fogged up. A nurse pulled it out to clean it but accidentally pulled the trocar out as well, essentially deflating the stomach on top of the still activated, hand-controlled electrocautery unit, according to Branch. When Bonner's stomach was reinflated, testimony revealed, Beck saw a small peritoneal tear and what Branch said could have been a burn – but no evidence of bleeding. At that point, a nurse finally got the operative scope running after discovering it had been plugged into the wrong electrical outlet, Branch said. The doctor then used the device to cauterize the bleeding trocar site, but he did not try to cauterize the tear.

Beck testified that he looked at the tear carefully but did not think it was a concern because there was no bleeding, his attorney Peters said. It later was discovered that a major artery to the leg had been scorched on the other side of the tear. After the operation, Beck told Bonner about the bleeding to her trocar site but not about the problems with the equipment, the burn or the tear. “Nobody thought it was of any significance,” Peters said. In Beck's operative report, he also did not mention the tear or the burn. The report said Bonner had “tolerated the procedure well” and left the hospital “in good condition.”

That night, Bonner's husband recalls her waking up three times, complaining that she needed to use the bathroom but could not. The next thing he remembers is hearing the crash of a glass of water falling off her bedside table. Scrambling to her side, he found his wife vomiting, moaning and gasping for air. He rushed her to the medical center, where an on-call surgeon found a mass of blood inside her pelvic area. The surgeon found the small tear, opened it and discovered behind it a burned artery that had ruptured in the night. Bonner died later that day, 1 day after her surgery. Her distraught husband left his job as a land surveyor shortly after her death to care for the couple's children. He soon took a job maintaining vending machines, but left that in the summer of 2004 because of the demands of raising three young children by himself. Since then, he has been working odd jobs for a brother-in-law who is a contractor. A family friend put him in touch with Branch's firm in September 2002, and the legal story begins there.

Doctor's Memo Was Smoking Gun

Eventually, Branch discovered what would be a smoking gun in the case, a memo that Beck had written to himself the day after Bonner's death. It was a document that was not initially provided to the plaintiffs. Because the memo was not a part of the patient's charts, Beck was advised by his previous counsel not to submit it as part of discovery, Peters said. But when Peters took the case, he thought it was appropriate that the document be submitted. In the memo, Beck voices his fear that the device accidentally burned Bonner. “I feel like the [cautery] fired when out of position,” he wrote.

The jury deliberated for 7 hours before assigning Bonner's family $2.5 million in general damages, an award Branch and other trial lawyers claim would not be possible under the restrictions of Senate Bill 3 because of its limit on noneconomic damages. But if SB 3 were made law, it might have consequences – favorable and unfavorable to both sides – beyond the damages award, both sides said.

The Economic Value of a Mother

Arguably the most controversial part of the Senate's tort reform bill is the provision that limits noneconomic damages for each health care provider to $250,000, up to an aggregate of $750,000. Accordingly, the most Bonner's family could secure under SB 3 for noneconomic damages, such as pain and suffering, would have been $500,000. Under current law, the jury isn't required to divide damages into economic and noneconomic categories, so there's no way to know how much of the judgment would have remained.

One change made in the Senate Judiciary Committee likely would have provided some relief to Bonner's family. Sen. Preston W. Smith, the committee's chairman, added “domestic and other necessary services performed without compensation” to the definition of economic damages after hearing testimony from victims advocates who said the original bill would have shortchanged homemakers, retirees and students. Barber, the hospital's lawyer, said he doesn't believe a cap would have made a big difference in Bonner's case because the awards were not based on pain and suffering. “It was about a 29-year-old mother of three and a wife,” said Barber, of Columbus, GA's Tisinger, Tisinger, Vance & Greer. Even with caps, he said, a jury likely would have awarded similar damages.

Under the proposed tort changes, a jury would have been charged with determining how to assign a monetary value to Bonner's homemaker duties. And Branch would have to do his best to highlight the magnitude of her household services. “I think the problem is trying to put that in economic terms as compared to the same woman who may have a corporate job with a W-2 form that says she makes $225,000,” he said. “Shouldn't life be worth more than the economic value associated with cleaning up her house and taking care of her kids?” Branch likely would have hired an economist to quantify his client's economic value, Barber said. And Barber, in turn, would have retained his own expert to dispute those figures, he said.

Who Pays, and How Much?

Currently, co-defendants in Georgia are held jointly liable, and a hospital found only marginally liable could have to pay the bulk of an award. In this case, Barber said, both co-defendants will split the $2.5 million verdict equally, although the plaintiffs could pursue the hospital for an increased portion. Beck, the doctor, had a $1 million insurance policy, while hospitals typically have greater coverage.

SB 3 would abolish joint and several liability, requiring a jury to apportion liability on a percentage basis. Under that bill, if the jury had assigned most of the liability to the doctor, then the plaintiffs conceivably would have had to pursue the doctor s personal assets to secure payment of the entire award, or be satisfied with the amount his insurance company would pay.

While the jury didn't assess relative liability in this case, most of the testimony focused on the doctor's performance. Barber, the hospital's lawyer, argued that Beck was the only at-fault party, while Peters, the doctor's lawyer, contended the hospital's staff didn't know how to handle the equipment properly. “From the very beginning, this case was a dispute not between the plaintiffs and defendants,” Branch said. “It was a dispute between the defendants as to who was more culpable than the other.” This issue has long been a priority for hospitals, and Barber said the Bonner trial is a clear example of why. After delivering their verdict, Barber asked jurors what percentages they would have allotted the hospital and the doctor. He said most jurors told him that they would have apportioned 70% to 75% to the doctor. “If we were only paying 30%, you're looking at saving half a million dollars for the hospital — a pretty substantial amount of money,” Barber said.

Experts Pass Muster

The attorneys on both sides called a total of four experts. All would have passed the stricter requirements set out in the Senate bill, the attorneys said. All were licensed in the state where they worked and had taught or practiced for at least 3 of the past 5 years — requirements for experts under SB 3. A more uncertain aspect would be the pretrial hearings to qualify an expert witness. SB 3 says that upon a motion by either party, the court would have to hold pretrial hearings, which are outlined in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993). Supporters of the provision hope that adopting the federal witness guidelines will help weed out “junk science” by more closely scrutinizing witnesses.

No Settlement

Branch never offered to settle with the hospital, but he did extend a $1 million offer to Beck. Beck's lawyer, Peters, said that offer was never “hammered out.” Under SB 3, if one party offers to settle and the other refuses, the latter would have to pay both parties' legal fees if a judgment is not at least 25% more favorable than the settlement offer. Presumably, because Beck owes $1.25 million — exactly within the provision's threshold — he would have to pay Branch's attorney fees under SB 3. Of course, a jury also would have to apportion a percentage of liability to Beck, which could change how much he owed. Barber said this provision would have encouraged both sides to reach a settlement. “It forces a realistic look at the value of the case,” he said.

Which Side Loses More Under the Bill?

Value is the theme that Branch comes back to in assessing the impact of SB 3 on his case. While some aspects of the bill wouldn't have hurt his case, or might have helped even, he can't get past the potentially devastating effect of damages caps. Although the value of Bonner s household duties would be included in the economic damages portion, the very notion of caps incenses him, he said. “All of the things that each of us really value in life were taken from her at the young age of 29,” Branch said. “To suggest that $250,000 and a privileged apology would begin to adequately compensate for this loss is completely out of touch.”