Linda Smith v. Khaliah Monique Shaw

• Court: Court of Appeals of Georgia
• Decided: March 6, 2025
• Docket: A24A1722
• Status: Published

Opinion

FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, P. J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

March 6, 2025

In the Court of Appeals of Georgia A24A1536, A24A1722. SHAW v. SMITH; and vice versa.

RICKMAN, Presiding Judge.

These related appeals arise from a negligence and malpractice action filed by

Khaliah Monique Shaw against Linda Smith and several other defendants. In Case No.

A24A1536, Shaw contends that the trial court erred in entering its judgment, reduced

for apportionment, and in denying Shaw’s motion to enter judgment for the full

amount of the verdict. In Case No. A24A1722, Smith argues that the trial court erred

in denying her motion for a directed verdict and motion for judgment notwithstanding

the verdict. For the reasons that follow, we affirm in both cases.

“On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we

construe the evidence in the light most favorable to the party opposing the motion[.]” (Citation and punctuation omitted.) Central Ga. Women’s Health Center v. Dean, 342

Ga. App. 127, 133 (1) (b) (800 SE2d 594) (2017). So viewed, the evidence shows that

on December 19, 2013, Shaw sought treatment for depression at River Edge

Behavioral Health Center. The next day, Julie Sanders, a nurse practitioner,

prescribed Lamictal (lamotrigine) for Shaw.

The manufacturer’s prescribing information for Lamictal contains a black box

warning that Lamictal “can cause a severe, life-threatening rash including Stevens-

Johnson syndrome and toxic epidermal necrolysis.” The prescribing information also

warns that “to avoid an increased risk of rash, the recommended initial dose and

subsequent dose escalations should not be exceeded[.]”

The manufacturer of Lamictal recommends that the dosage of the drug be

started low and increased gradually — 25 milligrams per day for the first two weeks,

and 50 milligrams per day for weeks three and four. The manufacturer recommends

an increase to 100 milligrams per day for week five.1

Shaw’s December 20 prescription for Lamictal was for one 25-milligram tablet

each day for the first week, followed by two 25-milligram tablets each day for the next

1 The recommended dosage schedule was frequently referred to at trial as a “titration schedule.” 2 three weeks. Sanders did not inform Shaw about potential side effects of the

medication. The prescription was sent to the pharmacy at River Edge and filled by

Smith, an independent contractor who worked as a pharmacist at River Edge. Shaw

went to the River Edge pharmacy and picked up the medication. No one at the

pharmacy advised Shaw about any side effects of Lamictal or offered counseling.

On January 6, 2014, Shaw returned to River Edge and saw Sanders again.

During that visit, Sanders informed Shaw that she should increase her daily dose of

Lamictal to 100 milligrams starting the next day. Sanders told Shaw to take four 25-

milligram tablets per day until her supply of those ran out, and then begin taking one

100-milligram tablet each day from a new prescription. The new prescription was sent

to the River Edge pharmacy on January 6, and Smith saw the prescription and checked

the dosage that day. Shaw picked up the 100-milligram tablets from the River Edge

pharmacy on January 13, four days before she would have been scheduled to start

taking a 100-milligram dose under the manufacturer’s recommended schedule. Again,

no one at the pharmacy warned Shaw about side effects or offered counseling.

Shaw began feeling tired on January 13, the same day she picked up the 100-

milligram tablets. On January 15, she started feeling sick, like she was “coming down

3 with the flu.” By January 18, Shaw was in an intensive care unit and had been

intubated. She was diagnosed with Stevens-Johnson syndrome and toxic epidermal

necrolysis. Shaw was transferred to Grady Memorial Hospital on January 19, where

she remained for six weeks. Shaw has required multiple surgeries, has permanently

lost all of her fingernails and all but one of her toenails, and her hair cannot fully grow

back due to scarring. Shaw developed severe vision problems and sensitivity to light.

In 2017, Shaw filed a complaint in the State Court of DeKalb County against

five named defendants2 - Smith, River Edge, Dr. Debra Osborne (Sanders’s

supervising physician), Affordable Business Solutions, LLC (“ABS”) (Dr. Osborne’s

employer), and Dajo, Incorporated (Dr. Osborne’s company). Shaw asserted claims

for, inter alia, negligence and malpractice. River Edge was dismissed from the case,

which was then transferred to the State Court of Bibb County. The trial court

subsequently entered a consent judgment in the amount of $800,000 in favor of Shaw

against ABS. The trial court later entered a consent order dismissing Dr. Osborne and

Dajo, Inc., from the case.

2 Shaw’s complaint also included unnamed “John Doe” defendants. 4 One of Shaw’s expert witnesses, Dr. Joseph Calabrese, a medical doctor,

testified that it was his opinion, to a reasonable degree of medical probability, that the

incorrect titration of Lamictal caused Shaw’s Stevens-Johnson syndrome and the life-

threatening rash, and was completely avoidable. According to Dr. Calabrese, Smith

should have realized that the prescription was incorrectly written and should have

communicated with the provider, who would have then understood that the titration

schedule was incorrect “and all of this wouldn’t have happened.”

Another of Shaw’s expert witnesses, Dr. Matthew Perri, a professor and

pharmacist at the University of Georgia College of Pharmacy, testified that the

combination of taking Lamictal at too high a dose in too rapid an escalation caused

Shaw’s Stevens-Johnson syndrome and toxic epidermal necrolysis. He testified that

Smith should not have filled either the December 20 or the January 6 prescriptions as

written. Dr. Perri explained that the December 20 prescription, which started with a

dose of 25 milligrams for the first week and increased to 50 milligrams after only one

week, was twice the dose it should have been for the second week, and that the dose

should not have been increased to 100 milligrams until week five. If the

manufacturer’s guidelines are followed, according to Dr. Perri, “there’s virtually no

5 chance you’re going to have a problem[,]” but increasing the dose too rapidly causes

problems. Dr. Perri stated, “You can get a rash and that rash can be severe, including

leading to death.”

Dr. Perri testified that when Smith received the January 6 prescription, she

should have assumed that it was going to be filled that day unless she had information

that led her to believe otherwise. Dr. Perri stated that for both the December 20

prescription and the January 6 prescription, Smith should have called the prescriber

and explained the problem. According to Dr. Perri, the prescriber probably would

have agreed to fix the problem. He explained, “in my experience, that’s what happens

and that would have solved the problem. That would have avoided the entire

situation.” Dr. Perri testified that if Smith had called Sanders and she did not change

the prescription, Smith should have called Dr. Osborne to let her know about the

problem, and if Dr. Osborne wanted the prescription filled as written, Smith should

have refused to fill it.

Dr. Osborne testified that she would not have allowed Sanders to prescribe 25

milligrams of Lamictal for the first week and 50 milligrams for the next three weeks

if she had known about it.

6 Smith moved for a directed verdict on the issue of causation, which the trial

court denied. The jury found in favor of Shaw in the amount of $40,309,502.97 and

apportioned two percent fault to Smith, eighteen percent fault to ABS, and eighty

percent fault to River Edge. Shaw filed a motion for the trial court to enter a judgment

against Smith for the full amount of the jury’s verdict, which the trial court later

denied. The trial court entered judgment against Smith in the amount of $806,190.06,

which is two percent of $40,309,502.97. Smith filed a motion for judgment

notwithstanding the verdict, which the trial court also denied.

These appeals followed.

Case No. A24A1536

1. Shaw argues that the trial court erred by entering its judgment, reduced for

apportionment, and by denying her motion to enter judgment for the full amount of

the verdict. Shaw contends that OCGA § 51-12-33 (b) does not apply because this was

a case brought against a single defendant. We disagree.

At the time Shaw filed her complaint, OCGA § 51-12-33 (b) (2005) provided

that

[w]here an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total

7 amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person.

As previously indicated, River Edge, Dr. Osborne, and Dajo Inc. were dismissed from

the case prior to trial, and the trial court entered a consent judgment in favor of Shaw

against ABS. Shaw contends that, as a result, at the time of trial, this action was being

brought against a single named defendant, Smith. However, although the consent

judgment against ABS provided that “[t]here are no further issues to litigate

between” Shaw and ABS and “ABS is therefore excused from having to further

participate in this case including trial[,]” the pre-trial order expressly stated that

“[a]lthough it does not appear in the caption and has been excused from further

participating in this case, including trial, per the Court’s June 6, 2018 Order, [ABS]

is technically still a party, having entered a consent judgment.” Thus, the record

shows that ABS was a defendant at the time of trial. “Even if the consent judgment

insulated [ABS] from any real threat of liability, it did not remove [ABS] from the case

. . . . [T]he entry of a consent judgment does not equate with a discharge from liability

or dismissal . . . .” Bostick v. CMM Properties, 327 Ga. App. 137, 139 (1) (755 SE2d 895)

8 (2014), rev’d on other grounds by Bostick v. CMM Properties, 297 Ga. 55 (772 SE2d

671) (2015). Accord Nalley v. Baldwin, 261 Ga. App. 713, 715 (583 SE2d 544) (2003).

Consequently, “this is not a single tortfeasor case and the trial court was required to

follow the parameters of the applicable version of the apportionment statute.”

Southern Oil Refinery v. Price, 372 Ga. App. 427, 430 (2) (903 SE2d 693) (2024). The

trial court thus did not err by entering its judgment, reduced for apportionment, or by

denying Shaw’s motion to enter judgment for the full amount of the verdict.

2. Because of our decision in Division 1, we need not address Shaw’s other

arguments.

Case No. A24A1722

3. Smith contends that the trial court erred by denying her motion for a directed

verdict and motion for judgment notwithstanding the verdict because Shaw’s injuries

are not legally traceable to Smith’s alleged breach of the standard of care. We discern

no reversible error.

In considering the denial of a motion for summary judgment or a motion for

judgment notwithstanding the verdict, “the standard of review is whether there is any

9 evidence to support the jury’s verdict.” (Citation and punctuation omitted.) Dean,

342 Ga. App. at 133 (1) (b).

(a) First, Smith argues that even if she breached the standard of care, there is

no evidence that it would have made a difference in Shaw’s treatment. Smith argues

that Sanders exercised her clinical judgment to intentionally deviate from the titration

schedule and would not have changed the prescription if Smith had called her.

However, Dr. Perri testified that if Smith had called Sanders and Sanders did not

change the prescription, Smith should have called Dr. Osborne to let her know about

the problem. And Dr. Osborne testified that, if she had known about it, she would not

have allowed Sanders write the incorrect Lamictal prescription. Dr. Perri also testified

that if calling Dr. Osborne did not fix the problem, Smith should have refused to fill

the prescription. Thus, there was at least some evidence that Smith’s breach of the

standard of care made a difference in Shaw’s treatment. See Dean, 342 Ga. App. at

137-138 (1) (b) (affirming denial of motions for directed verdict and j.n.o.v. where

plaintiffs presented some evidence of causation).

(b) Next, Smith argues that there is no evidence that she caused Shaw to take

more pills than originally prescribed during weeks three and four of her treatment.

10 Smith testified that she did not know that Sanders told Shaw on January 6 to take

more than the originally prescribed amount, and contends that she, therefore, could

not have caused Shaw to take more pills than originally prescribed during weeks three

and four of her treatment. However, Dr. Calabrese testified if Smith had

communicated with Sanders, Sanders would have then understood that the titration

schedule was incorrect “and all of this wouldn’t have happened.” And Dr. Perri

testified that if Smith had communicated with Sanders, “that would have solved the

problem. That would have avoided the entire situation.” We thus conclude that there

is at least some evidence that Smith’s breach of the standard of care caused Shaw to

take more pills than originally prescribed during weeks three and four of her

treatment. See Dean, 342 Ga. App. at 137-138 (1) (b).

(c) Finally, Smith argues that Shaw’s expert witness testimony was too

speculative to establish causation because it did not distinguish between the two time

periods that Shaw exceeded the manufacturer’s recommended dosage.3 Smith’s

3 Shaw contends the expert witness testimony issue is the only ground that Smith preserved for appellate review because this was the only ground raised in her motions for directed verdict and for j.n.o.v. However, “a party who moved for a directed verdict as to a specific claim will be entitled to a judgment as a matter of law on that claim if she prevails on her argument on appeal that the evidence is insufficient to support the verdict as to that claim.” (Citation and punctuation omitted.) Redmon 11 argument is based on her contention that she had no role in Shaw taking too much

Lamictal in weeks three and four of her treatment. Under the circumstances of this

case, where there is at least some evidence that Smith’s negligence caused Shaw to

take too much Lamictal in both time periods, the fact that the expert witnesses did not

specify which time period resulted in Shaw’s injuries does not make their testimony

too speculative to establish that Smith caused Shaw’s injuries. See Allen v. Family

Med. Center, 287 Ga. App. 522, 525 (1) (652 SE2d 173) (2007) (expert testimony that

plaintiff’s injury could have been avoided if defendants had followed standard of care

sufficient to establish causation).

Judgments affirmed. Mercier, C. J., and McFadden, P. J., concur.

v. Daniel, 335 Ga. App. 159, 163 (1), n.5 (779 SE2d 778) (2015). Because Smith moved for a directed verdict on Shaw’s negligence claim, she is “free to challenge the sufficiency of the evidence as to that claim, even if [she] did not raise in the court below the specific arguments set forth on appeal.” Id. 12