Clayton State Court hears argument on whether nursing actions in c-section suit are professional or ordinary negligence

Judge Tammy Long Hayward heard competing arguments Oct. 1 in Shamburger v. Harrington, a medical-malpractice suit over the death of an infant after an emergency C-section, about whether two of the plaintiff’s claims sound in ordinary negligence or require expert proof as professional negligence.

The dispute centers on two discrete allegations: that labor-and-delivery staff did not promptly notify the neonatal intensive-care unit (NICU) when the emergency C‑section was ordered, and that the operating room lacked two working infant warmers for a twin delivery. Defense counsel argued those issues require medical judgment and thus professional‑negligence treatment; plaintiff’s counsel said they are administrative tasks and therefore ordinary negligence.

Plaintiff attorney Mark Stuckey said evidence supports ordinary negligence on both points. “Those warmers are supposed to be there good to go for whenever there's a c section,” Stuckey told the court, and he quoted deposition testimony saying only one warmer was available and the single unit was not working, creating delay while staff secured a second. Stuckey said the record shows the C‑section call went out at 5:50 a.m. but the NICU’s own notes indicate NICU staff were not contacted until about 6:10 a.m., a 20‑minute gap the plaintiff contends contributed to the death of one twin, identified in the hearing as Dario Coleman.

Defense counsel Brandon Sargent (transcript referenced as Sarton/Sargent) urged the court to dismiss the ordinary negligence counts under a Rule 12(b)(6) standard. He argued that whether and when the NICU should be notified and whether infant warmers must be in the operating room are clinical judgments a jury cannot resolve without expert testimony. “Whether a labor and delivery nurse needs to consult with the physician or staff in another department is a medical question that requires medical judgment,” Sargent said, and he argued Georgia precedent and statutory rules governing professional‑standard proofs apply.

Both sides cited case law in argument. Defense counsel relied on a Georgia appeals decision (referred to at hearing as Patman) and the rule that where causation or other elements require medical expertise, the claim sounds in professional negligence. Plaintiff relied on Dent and other authorities to contend that failures to keep or operate equipment or to carry out non‑discretionary tasks can be ordinary negligence.

The parties also told the court they have experts who will offer opposing causation opinions: plaintiff said an obstetrician and a neonatologist will testify that an earlier delivery would have changed the outcome; defense said experts will say the obstetrician could have moved forward without warmers and that causation requires medical proof. Neither side asked for an immediate ruling at the hearing.

Judge Hayward heard argument from both sides and told counsel she would issue a written order. The court did not rule from the bench on Oct. 1.