LITIGATION DEPARTMENT OF THE YEAR - Mid-Size Firm  ALM's Daily Report   2017 - 2016 - 2014

WWHGD Wins Summary Judgment in Medical Malpractice and Wrongful Death Case

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC partner Carol Michel and associate Shubhra Mashelkar to won summary judgment for their client, Matthew Watson, M.D., in an action for contribution and indemnity stemming an underlying medical malpractice and wrongful death action. The Court of Appeals of Georgia affirmed the trial court’s grant of summary judgment in favor of Dr. Watson and the third-party defendants.

Dr. Watson was working as a physician at Northside Hospital (“Northside”) under contract from Emergency Professionals of Atlanta, Inc. (“EPA”), which provides physicians to staff emergency medical facilities. The plaintiff arrived at the emergency room of Northside complaining of shortness of breath and an elevated temperature. Dr. Watson examined the plaintiff, consulted with a specialist on call, and then treated and discharged the plaintiff. The next day, the plaintiff collapsed and died.

The plaintiff’s estate sued Dr. Watson, the consultant, EPA and Northside, alleging they were negligent in the treatment they provided, and that Dr. Watson was acting as an EPA agent or employee when he treated the plaintiff. When EPA failed to file a timely answer to the complaint, the plaintiff moved for a default judgment and the trial court entered the judgment against EPA. Once the default judgment was entered on the issue of EPA’s liability, a jury trial was held on the issue of damages and the jury found EPA liable to the plaintiff for $900,000 plus costs. The plaintiff dismissed the action against the other defendants and EPA filed a cross-claim for contribution and indemnity against Dr. Watson and the remaining third-party defendants.

The third-party defendants moved for summary judgment, arguing that the indemnification and contribution claims were barred by EPA’s failure to raise available defenses that would have prevented the entry of default judgment against it. In addition, Dr. Watson argued that the indemnity provision in his physician agreement with EPA did not apply to default judgments. The trial court granted summary judgment to all third-party defendants and EPA appealed.

The appeals court found that no indemnity claim exists where the party seeking indemnity was not legally obligated to make the payment and that no indemnification or contribution can be recovered where the alleged tortfeasor could have raised a defense to defeat the action but failed to do so. As to Dr. Watson’s additional defense, the appeals court held that the indemnification claim in the physician agreement would obligate Dr. Watson to indemnify EPA against claims arising from the agreement, but not—as in this case—where EPA’s own conduct in failing to assert an available defense led to the entry of default judgment. The plaintiff has filed a petition to appeal the case to the Georgia Supreme Court.

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