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Georgia Supreme Court Expands Vicarious Liability and Limits Apportionment

In Trabue v. Atlanta Woman's Specialist (2020 WL 5752376) (September 28, 2020), the Georgia Supreme Court expanded the ability of plaintiffs to allege vicarious liability and limited the ability of defendants to apportion damages.

The Supreme Court held that a complaint sufficiently pleaded the claim for vicarious liability against a medical practice by alleging that the practice is vicariously liable for the negligence of the providers caring for the patient, and that the providers were employees of the practice. The Supreme Court specifically held that a plaintiff does not have to specifically name any provider. However, in discussing the facts of the case, the Supreme Court repeatedly pointed out that the plaintiff in this case did make factual allegations of negligence against an employed doctor of the practice, which was named as a defendant, in addition to allegations of negligence against a named defendant who was also an employee of the practice. The Court found that the fact the plaintiff did not name the other employed doctor as a defendant and did not file a specific count of negligence concerning the actions of the unnamed employed doctor did not prevent Plaintiff from alleging the practice was liable for the alleged negligence of the unnamed employed doctor.

Thus, when a plaintiff sues a any medical organization and alleges that employees are negligent, that will be sufficient to allow the plaintiff to recover against the organization for the action of any employee or agent, including unnamed employees and agents. To address this, I recommend that you serve discovery on plaintiff asking if plaintiff alleges that defendant is liable for the alleged negligence of any other person or entity and if so state all reasons in support of your allegation.

The Supreme Court also held that a defendant employee who wants to apportion damages between herself and her defendant employer based on an assessment of the fault of a non-party co-employee must comply with O.C.G.A. ยง 51-12-33(D)(2) and file a pleading at least 120 days before trial naming the co-employee providing the last known address and briefly stating the basis for the belief that she was wholly or partially at fault for plaintiff's injuries. This will create new potential conflicts between medical practices and organizations and their employees also named as defendants, if the named employed defendant believes that a co-employee or the practice, based on actions separate from herself, should be apportioned damages.

While of no precedential value, Justice Bethel in dissent reasonably points out that a named defendant employee should be able to move to apportion damages between herself and her named defendant employer under the plain terms of the apportionment statute. If the plaintiff can recover against a named defendant employer based on the alleged negligence of a non-party employee, then likewise the named defendant employee should be able to apportion damages to the named defendant employer based on allegations of negligence of a non-party employee.

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