Network Firm News

Tuesday, December 11, 2007

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC partner Carol Michel and associate Shubhra Mashelkar won summary judgment for their client, a medical doctor, in an action seeking contribution and indemnity in connection with 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 the doctor and the third-party defendants.

WWHGD's client was working as a physician at an Atlanta area hospital under contract from an organization that which provides professional staff to emergency medical facilities. The plaintiff arrived at the emergency room complaining of shortness of breath and an elevated temperature. WWHGD's client 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 alleging negligence and that the doctor was acting as an agent of the staffing company or an employee. When the staffing company failed to file a timely answer to the complaint, the plaintiff moved for and won a default judgment. Subsequently a jury held the defaulting staffing company liable for $900,000. The plaintiff dismissed the action against the other defendants and the staffing comopany cross-claimed for contribution and indemnity against the doctor and the remaining third-party defendants.

The third-party defendants moved for summary judgment, arguing that the indemnification and contribution claims were barred by the staffing company's failure to raise available defenses that would have prevented the entry of default judgment against it. The argued that the indemnity provision in his physician agreement with the staffing company did not apply in the case of a default judgment against the staffing company. The trial court granted summary judgment to all third-party defendants and the staffing company 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. The appeals court also held that the indemnification claim in the physician agreement ordinarily would obligate the doctor to indemnify the staffing company but not where the staffing company'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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