                             FIFTH DIVISION
                            MCFADDEN, C.J.,
                      MCMILLIAN, P.J. and MERCIER, 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.
                                http://www.gaappeals.us/rules


                                                                    October 10, 2019




In the Court of Appeals of Georgia
   A19A1552, A19A1553. LOWNDES COUNTY HEALTH
      SERVICES, LLC v. COPELAND et al; and vice versa.

      MERCIER, Judge.

      Following the death of Bobby Copeland (“Bobby”), Gregory Copeland,

individually and as Bobby’s son, and Marier House, as the administrator of Bobby’s

estate, (collectively, “the plaintiffs”) sued Lowndes County Health Services, LLC

d/b/a Heritage Healthcare at Holly Hill (“Holly Hill”) for wrongful death and other

damages. A jury found Holly Hill liable for both professional and ordinary

negligence. It awarded the plaintiffs over $7.6 million in damages, but allocated fault

between Holly Hill and four non-parties to the trial. Based on the jury’s allocation of

fault, the trial court entered final judgment for the plaintiffs against Holly Hill for

$1,524,240.
      In Case No. A19A1552, Holly Hill appeals the final judgment entered on the

jury’s verdict and the denial of its motion for new trial, arguing that the trial court

erred in (1) rejecting its challenge to the plaintiffs’ use of a peremptory jury strike,

and (2) denying its motion for directed verdict on plaintiffs’ negligent staffing claim.

In their cross-appeal in Case No. A19A1553, the plaintiffs assert that the trial court

erred in (1) denying their motion for directed verdict as to apportionment, and (2)

using a misleading and confusing special verdict form. For reasons that follow, we

affirm.

      Viewed in the light most favorable to the jury’s verdict, see Ford Motor Co.

v. Gibson, 283 Ga. 398, 399 (659 SE2d 346) (2008), the evidence showed that Bobby

lived at Holly Hill, a skilled nursing facility in Valdosta, from 2001 until his death in

2012 at the age of 71. Around 10:45 p.m. on October 25, 2012, Faye Jenkins, a

licensed practical nurse (“LPN”) employed by Holly Hill and assigned to the 11:00

p.m. to 7:00 a.m. “night shift,” entered Bobby’s room and saw brown vomit on his

clothing. Noting that Bobby’s stomach was “slightly distended,” Jenkins listened to

his abdomen with her stethoscope and detected “a lack of bowel sounds in three of

four quadrants[.]” She then called Shawn Tywon, physician’s assistant to Dr. Douglas



                                           2
Moss, Holly Hill’s medical director.1 Jenkins related her observations and asked

whether Bobby should go to the hospital for evaluation. Tywon told her not to send

Bobby to the hospital, but he ordered a blood test, an abdominal x-ray, and nausea

medication for Bobby. Jenkins checked on Bobby throughout her shift. She heard him

moan at one point during the night and noticed no change in his bowel sounds.

      As the end of her shift approached on October 26, 2012, Jenkins reported

Bobby’s condition to the nurse coming on duty at 7:00 a.m., as well as to Registered

Nurse (“RN”) Lisa Sirmans, Holly Hill’s Assistant Director of Nursing, who arrived

at the facility around 6:30 a.m. Concerned about Bobby, Jenkins asked Sirmans “to

please get something done about this resident,” and Sirmans responded that “she

would.” According to Bobby’s medical chart, however, he was not actually assessed

until 9:15 a.m., when Kaye Frazier, an RN who served as Holly Hill’s Director of

Nursing, examined him. Frazier noted that Bobby’s abdomen was distended and that

he was complaining of abdominal pain.

      The x-ray ordered the night before by Tywon was completed at Holly Hill just

before 10:00 a.m. Tywon examined Bobby at 10:15 a.m., and approximately 45

      1
        The plaintiffs originally named Moss and Tywon as defendants in this action,
but they settled with the plaintiffs prior to trial. Although Moss and Tywon provided
care for Holly Hill residents, it appears that they were not employed by Holly Hill.

                                         3
minutes later, an ambulance transported Bobby to South Georgia Medical Center

(“SGMC”), where he was treated in the emergency room by a team that included Dr.

Matthew Shannon, Moss, and Tywon. Bobby was transferred to the hospital’s

intensive care unit around 5:30 p.m. He died later that night from complications

related to aspirating fecal material, a risk associated with bowel obstructions.

      The jury found Holly Hill liable to the plaintiffs in both professional and

ordinary negligence, and it awarded the plaintiffs over $7.5 million in compensatory

damages. Jurors, however, allocated only 20 percent of the fault to Holly Hill. They

apportioned the remainder of the fault to non-parties Tywon (35 percent), Moss (35

percent), SGMC (5 percent), and Shannon (5 percent). The trial court entered

judgment against Holly Hill for 20 percent of the damages awarded, and these appeals

followed.

                                Case No. A19A1552

      1. Holly Hill argues that the trial court erred in denying its motion, brought

pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986),

challenging the plaintiffs’ decision to strike Juror No. 11 from the jury pool. In

Batson, the United States Supreme Court barred the government from striking

prospective jurors from a jury panel based upon race. See id. at 84-89 (II) (A) & (B);

                                          4
AIKG, LLC v. Marshall, 350 Ga. App. 413, 418 (829 SE2d 608) (2019). The Supreme

Court later extended this holding to civil litigants, prohibiting race-based peremptory

strikes in civil trials. See Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630 (II)

(B) (111 SCt 2077, 114 LEd2d 660) (1991); AIKG, LLC, supra.

      In both criminal and civil proceedings, a Batson challenge is analyzed using

a three-pronged test:

      (1) the opponent of a peremptory challenge must make a prima facie
      showing of racial discrimination; (2) the proponent of the strike must
      then provide a race-neutral explanation for the strike; and (3) the court
      must decide whether the opponent of the strike has proven
      discriminatory intent.


AIKG, LLC, supra (citation omitted). On appeal, we are mindful that the trial court’s

resolution of a Batson motion “rests largely upon assessment of the proponent’s state

of mind and credibility; it therefore lies peculiarly within a trial judge’s province.”

Id. (citation omitted). A trial court’s determination as to whether the opponent of a

jury strike proved discriminatory intent is “entitled to great deference and will be

affirmed unless clearly erroneous.” Id. (citation omitted).

      Noting that all six of the individuals stricken by plaintiffs’ counsel were white,

Holly Hill argued at trial that the strikes “ha[d] to do with race.” In response,

                                           5
plaintiffs’ counsel provided the reasoning behind the strikes. As to Juror No. 11,

counsel stated:

      [Juror No. 11] works in a sheet metal factory. He works in South
      Lowndes County which based off our demographic research of this
      group and with our discussion with other counsel who are right in this
      area, suggested that they may not be [an] area that is friendly towards
      African Americans which our client is. So, we have concerns based off
      his blue-collar employment, as well as . . . the demographics of where
      he resides that he may have some innate prejudice toward our client.


      ...

      In addition, . . . this is one of the jurors about whom we have the least
      information. We know that he’s married and is a sheet metal worker and
      works cranes and lives in . . . South Lowndes, . . . and beyond that, we
      don’t really have much information. He was a big question mark in our
      minds because nobody really developed his testimony much.


After the plaintiffs’ explanation, counsel for Holly Hill asserted:

      [T]hat was the basis of my [Batson] objection as we did not have much
      information on him, so the fact that we didn’t have any information on
      him and he was one of their strikes, was a cause of concern for us.


      The trial court rejected the Batson challenge following counsels’ exchange,

stating:


                                          6
      Okay, well, as I understand a Batson Challenge, . . . once they put forth
      an explanation, the burden then shifts to you, [Holly Hill], to prove that
      it was some type of purposeful discrimination. I don’t hear that coming
      forward, so, for that reason the Court’s going to deny your Batson
      Challenge as to Juror Number [11].


The trial court clarified this ruling in its order denying Holly Hill’s motion for new

trial, concluding that the plaintiffs had offered race-neutral reasons for striking Juror

No. 11 and that the strike “was not racially based.”

      On appeal, Holly Hill argues that the plaintiffs’ explanation for striking Juror

No. 11 was facially discriminatory, which required the trial court to uphold its Batson

challenge and disallow the strike. We disagree. “To qualify as race-neutral, an

explanation need not be persuasive, plausible or even make sense. It must simply be

based on something other than the race of the juror.” O’Hannon v. State, 240 Ga.

App. 706, 707 (1) (524 SE2d 759) (1999) (citation and punctuation omitted). Absent

discriminatory intent inherent in the proponent’s explanation, “the reason offered will

be deemed race neutral.” Id. (citation and punctuation omitted). See also Toomer v.

State, 292 Ga. 49, 54 (2) (b) (734 SE2d 333) (2012) (“[T]o carry the burden of

production at step two, the proponent of the strike need not offer an explanation that

is concrete, tangible, or specific. The explanation need not even be case-related. The

                                           7
explanation for the strike only needs to be facially race-neutral.”) (citation and

punctuation omitted).

      The plaintiffs’ explanation for the strike referenced Juror No. 11’s employment,

his area of residence, and the lack of other information about him. These

characteristics are facially race-neutral. See Trice v. State, 266 Ga. 102, 103 (2) (464

SE2d 205) (1995) (“The nature of a prospective juror’s employment is not a

characteristic that is peculiar to any race.”) (citations and punctuation omitted); Smith

v. State, 264 Ga. 449, 450 (1) (448 SE2d 179) (1994) (prosecutor’s belief that “all

residents, black or white, of a particular neighborhood might be biased against the

State’s witnesses” was racially neutral). Nothing in the plaintiffs’ explanation or the

record associates these characteristics with race; sheet metal workers living in south

Lowndes County can presumably be of any race. See Jones v. State, 240 Ga. App.

339, 341 (1) (523 SE2d 402) (1999) (prosecutor’s fear that prospective juror might

be “overly sympathetic” to the defendant was facially race-neutral because “people

of any race can experience hardships in life”). Compare Congdon v. State, 262 Ga.

683, 684-685 (424 SE2d 630) (1993) (decision to peremptorily strike jurors “because

they were black residents of Ringgold” was not race-neutral).



                                           8
      We recognize that plaintiffs’ counsel expressed a belief that individuals from

south Lowndes County might not be “friendly towards” an African-American

claimant. But the explanation for the strike did not reference the race of south

Lowndes County residents or Juror No. 11. It was race-neutral as to them. And

although the trial court could have determined in addressing the third Batson prong

that counsel’s explanation was pretextual, “the trial court’s decision on the ultimate

question of discriminatory intent represents a finding of fact of the sort accorded great

deference on appeal.” Smith, supra at 451 (1) (citation omitted). We discern no clear

error in the trial court’s conclusion, based on the totality of the circumstances, that

Holly Hill failed to prove racially discriminatory intent with respect to the strike of

Juror No. 11. See id. at 450-451 (1) (noting that a peremptory strike based upon

where a prospective juror resides raises “concerns about the potential for cloaking

discriminatory motives in only marginally neutral justifications,” but finding that the

trial court did not clearly err in deeming the strike race neutral). This claim of error,

therefore, does not require reversal.

      2. Holly Hill further argues that the trial court erred in denying its motion for

directed verdict on plaintiffs’ negligent staffing claim. A trial court may direct a

verdict only “[i]f there is no conflict in the evidence as to any material issue and the

                                           9
evidence introduced, with all reasonable deductions therefrom, [demands] a particular

verdict[.]” OCGA § 9-11-50 (a). In reviewing the trial court’s ruling on a motion for

directed verdict, we construe “the evidence and any doubts or ambiguities in favor of

the party opposing the motion[.]” Strickland v. Hosp. Auth. of Albany/Dougherty

County, 241 Ga. App. 1, 3 (1) (b) (525 SE2d 724) (1999) (citation and punctuation

omitted).

      With respect to staffing, the plaintiffs alleged at trial that Holly Hill negligently

failed to staff the October 25, 2012 night shift with someone who could have properly

assessed Bobby’s condition. Though the plaintiffs couched this claim in terms of

ordinary negligence, Holly Hill countered that the staffing decision required

professional nursing judgment, bringing the claim within the realm of professional

negligence that had to be – but was not – supported by expert testimony. The trial

court rejected Holly Hill’s argument and denied its motion for directed verdict. See

Dent v. Memorial Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998) (whether

negligence alleged by plaintiffs constituted ordinary negligence or professional

malpractice is a question of law for the trial court). We find no error.

      Kaye Frazier testified that she was responsible for scheduling Holly Hill’s staff,

which included Certified Nursing Aides (“CNAs”), LPNs, and RNs. CNAs are staff

                                           10
members who assist residents with daily living tasks, such as bathing and eating.

CNAs report to LPNs, who, in turn, report to RNs. Although LPNs are licensed

nurses, they are not qualified to perform certain functions that RNs are trained to

perform, such as assessing a patient’s condition and arriving at a nursing diagnosis

that “identifies the nature of the problem from a nursing standpoint and the suspected

causes.”

      For the night shift beginning on October 25, 2012, Frazier assigned three LPNs

to work at the facility. As was routine at the time, RNs were not scheduled to work

the night shift, and no nurse on duty was qualified to perform an independent nursing

assessment of a resident’s medical condition. Frazier explained that governmental

regulations only required Holly Hill to have an RN in the facility eight consecutive

hours per day. She chose to staff the facility with an RN during the day shift, rather

than the night shift, “because at night most of the residents are asleep.” She also

admitted, however, that Holly Hill was required to staff above the governmental

minimum requirements if necessary to meet patient needs.

      Holly Hill’s corporate representative testified that staffing decisions were made

“based on historically what has been done and then based on the judgment of the

nurses who are at the facility and particularly Ms. Frazier, as to what staff members

                                         11
they need and where.” According to the representative, Frazier determined the

numbers and types of staff to place on each Holly Hill unit based on her knowledge

and nursing judgment. But the representative conceded that these decisions were

made in collaboration with the facility administrator, who “is responsible overall for

the operation of the facility.” The evidence further showed that “RNs cost the facility

more than LPNs” because the hourly rate for an RN is greater than that for an LPN.

      “Claims of allegedly negligent administrative acts which do not require

professional knowledge or skill assert ordinary negligence.” Peterson v. Columbus

Med. Center Foundation, 243 Ga. App. 749, 754 (2) (533 SE2d 749) (2000) (citation

omitted). Holly Hill offered evidence that Frazier exercised her professional judgment

when making staff shift assignments. The facility administrator, however, also

participated in staffing decisions. And Holly Hill has cited no evidence that the

overall determination regarding how many RNs were available for Frazier to schedule

was made by a medical professional or constituted a medical decision, rather than a

business decision based on the higher cost of paying RNs.

      The evidence demonstrated that LPNs were not trained to assess the condition

of residents such as Bobby, that Holly Hill routinely elected not to employ an RN on

the night shift, and that nursing home residents “can get sick any time of the day or

                                          12
night.” Plaintiffs also offered expert testimony that the delay in assessing Bobby

caused his condition to progressively worsen, contributing to his suffering and the

“downward quick spiral that . . . ultimately [led] to his death.” Given these

circumstances, the evidence supported the conclusion that Holly Hill engaged in

business-related ordinary negligence by forcing Frazier to choose only one shift in

which to schedule an RN, leaving the night shift staff without anyone trained to

adequately evaluate residents. Because this staffing claim did not sound in

professional negligence, the trial court properly denied Holly Hill’s motion for

directed verdict. See Upson County Hosp. v. Head, 246 Ga. App. 386, 391 (1) (540

SE2d 626) (2000) (claims sound in ordinary negligence when stated against hospital

based on the acts or omissions of (1) employees who were not medical professionals

and (2) medical professionals who were not exercising medical judgment); see also

Lamb v. Candler General Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992) (“A

hospital owes to its patients only the duty of exercising ordinary care to furnish

equipment and facilities reasonably suited to the uses intended and such as are in

general use under the same, or similar, circumstances.”) (citations and emphasis

omitted). Compare St. Mary’s Health Care Sys. v. Roach, 345 Ga. App. 274, 278 (1)

(811 SE2d 93) (2018) (execution of hospital policy regarding availability of

                                        13
radiologists on night shift involved exercise of professional judgment because policy

explicitly allowed immediate consult with on-call radiologist, and emergency room

physician elected not to consult with radiologist after reviewing x-ray herself).

                                 Case No. A19A1553

      3. In their cross-appeal, the plaintiffs argue that the trial court erred in allowing

the jury to consider whether to apportion fault to non-parties at the trial. Pursuant to

OCGA § 51-12-33 (c), “the trier of fact shall consider the fault of all persons or

entities who contributed to the alleged injury or damages, regardless of whether the

person or entity was, or could have been, named as a party to the suit.” According to

the plaintiffs, the trial court should have granted their motion for directed verdict on

apportionment as to Moss, Shannon, and SGMC because no competent evidence

supported a finding that these non-parties contributed to the plaintiffs’ damages.2 See

Southwestern Emergency Physicians v. Quinney, 347 Ga. App. 410, 427 (4) (819

SE2d 696) (2018) (“[T]he fault of a non-party cannot be considered for the purposes

of apportioning damages without some competent evidence that the nonparty in fact




      2
          The plaintiffs do not challenge the jury’s decision to apportion fault to
Tywon.

                                           14
contributed to the alleged injury or damages.”) (citation and punctuation omitted). We

disagree.

      Viewed favorably to Holly Hill, the party opposing the motion for directed

verdict, see Strickland, supra, the evidence showed that Moss, Shannon, and a team

of providers treated Bobby after he arrived at SGMC. Holly Hill’s expert testified that

Moss, Shannon, and the SGMC team breached the standard of care by failing to

timely order necessary CT scans of Bobby’s abdomen and, once the scans were

finally ordered, cancelling those scans, leaving Bobby to languish in the emergency

room for hours without proper assessment of his condition. According to Holly Hill’s

expert, Shannon and SGMC also breached the standard of care by not immediately

treating Bobby with antibiotics. Holly Hill’s expert asserted that each breach was

egregious and individually caused Bobby’s death, which resulted from the “negligent

care that he received at [SGMC].” Such testimony provided some evidence that Moss,

Shannon, and the SGMC providers breached the standard of care when treating

Bobby, contributing to his injuries and, ultimately, his death.

      On appeal, the plaintiffs argue that Holly Hill’s evidence failed to meet the

heightened negligence standard applicable to emergency room situations. We

recognize that in medical malpractice actions “arising out of the provision of

                                          15
emergency medical care in a hospital emergency department,” physicians and health

care providers cannot be held liable “unless it is proven by clear and convincing

evidence that the physician or health care provider’s actions showed gross

negligence.” OCGA § 51-1-29.5 (c). But the term “emergency medical care” does not

include “medical care or treatment that occurs after the patient is stabilized and is

capable of receiving medical treatment as a nonemergency patient[.]” OCGA § 51-1-

29.5 (a) (5). And Holly Hill’s expert testified that Bobby’s condition stabilized in the

emergency room, at which point a CT scan should have been conducted. Shannon

(the emergency room physician) further indicated that Bobby was retained in the

emergency department for a period simply because a bed was not available in the

hospital’s intensive care unit. Such testimony raised a question of fact as to the

applicability of OCGA § 51-1-29.5 (c). The trial court, therefore, properly submitted

the issue to the jury. See Bonds v. Nesbitt, 322 Ga. App. 852, 855-856 (1) (747 SE2d

40) (2013) (doctor’s determination that patient was stable raised a jury question as to

whether the patient “at some point had stabilized and was capable of receiving

medical treatment as a nonemergency patient within the meaning of OCGA §

51-1-29.5 (a) (5)”) (punctuation omitted).



                                          16
      Moreover, assuming OCGA § 51-1-29.5 (c) applied, “liability [is] authorized

where the evidence, including admissible expert testimony, would permit a jury to

find by clear and convincing evidence that the [medical providers] caused harm by

grossly deviating from the applicable medical standard of care.” Abdel-Samed v.

Dailey, 294 Ga. 758, 765 (3) (755 SE2d 805) (2014) (citation omitted). Holly Hill’s

expert asserted that the breaches of care committed by Moss, Shannon, and SGMC

were egregious, resulting in the provision of “astonishingly poor care” to Bobby in

the SGMC emergency room. Given this testimony, as well as evidence regarding

delays in treatment, the jury would have been authorized to find by clear and

convincing evidence that these non-party medical providers acted with gross

negligence. See id. at 765-767 (3) (evidence that emergency room physician waited

hours to contact and transfer patient to surgeon for emergency hand surgery raised

jury question as to whether physician acted with gross negligence under OCGA § 51-

1-29.5).

      The record evidence raised jury questions as to whether the independent

actions of Moss, Shannon, and SGMC contributed to the damages suffered by the

plaintiffs. Under these circumstances, the plaintiffs were not entitled to a directed



                                         17
verdict on the fault allocation issue, and the trial court properly asked jurors to assess

the individual fault of these non-parties under OCGA § 51-12-33.3

      4. Alternatively, the plaintiffs argue that even if the trial court properly

submitted the apportionment issue to the jury, the special verdict form was confusing

because it listed the four non-parties (Moss, Shannon, SGMC, and Tywon) on

separate lines, allowing an individual assignment of fault as to each. In plaintiffs’

view, Moss and SGMC were – at most – vicariously liable for the actions of Tywon

and Shannon. “[G]enerally, where a party’s liability is solely vicarious, that party and

the actively-negligent tortfeasor are regarded as a single tortfeasor.” Trabue v. Atlanta

Women’s Specialists, 349 Ga. App. 223, 231 (2) (825 SE2d 586) (2019) (citation and

punctuation omitted). Citing this principle, the plaintiffs claim that Moss and SMGC

should not have been listed separately on the verdict form. As found in Division 3,

however, Holly Hill offered evidence that these non-parties independently breached




      3
        Citing Amu v. Barnes, 286 Ga. App. 725 (650 SE2d 288) (2007), aff’d, 283
Ga. 549 (662 SE2d 113) (2008), the plaintiffs argue that apportionment is
inappropriate because “Holly Hill remain[s] accountable for [any] subsequent
malpractice” that occurred at SGMC. The Amu decision, however, involved
intervening negligent actors, not apportionment under OCGA § 51-12-33. See Amu,
supra at 731-735 (2). It has no application here.

                                           18
the standard of care owed to Bobby and proximately caused damage to the plaintiffs.

This argument, therefore, lacks merit.

      The plaintiffs further note that the jury apportioned the same amount of fault

to Moss and Tywon (35 percent) and the same amount to SMGC and Shannon (5

percent). They claim that the jury necessarily found Moss and SGMC only vicariously

liable, but that the structure of the verdict form confused jurors, causing them to

improperly apportion independent fault to them. Again, however, jurors were

authorized to find these non-parties independently at fault, and “we cannot go behind

the jury’s verdict to determine how the damages were apportioned.” City of

Gainesville v. Waters, 258 Ga. App. 555, 558 (2) (574 SE2d 638) (2002).

      Moreover, the plaintiffs’ objection to the verdict form at trial focused on their

claim that, as a matter of law, Moss, Shannon, and SGMC were not independently at

fault and thus should not have been listed separately as non-parties subject to

apportionment. The plaintiffs have not cited – and we have not located – any

evidence that they requested that the verdict form delineate whether jurors found the

non-parties at fault based on direct versus vicarious liability. Although plaintiffs’

counsel reacted at trial to the jury’s verdict by “wonder[ing]” whether the fault

assigned to Moss was derivative of Tywon’s actions, he did not object or request any

                                         19
action by the trial court to clarify the jury’s verdict. To the extent the plaintiffs now

argue that the verdict form was confusing and/or misleading because it failed to

properly distinguish the basis for the jury’s apportionment determination, that claim

has been waived. See Auto-Owners Ins. Co. v. Dolan, 342 Ga. App. 179, 182 (2) (803

SE2d 104) (2017) (“In the absence of . . . specific and timely objections, a party

waives error relating to the manner in which questions on a special verdict form are

submitted to the jury.”) (citation and punctuation omitted).

      Judgment affirmed. McFadden, C. J, and McMillian, P. J., concur.




                                           20
