Medical device sales representatives are many things. They know their product lines inside and out. They can tell a surgeon exactly where to find a particular screw, rod, or connector in a tray containing dozens of components. They can help ensure the requested hardware is available when needed. What they cannot do is scrub in, take over a surgery, or overrule a surgeon’s medical judgment. But that is essentially the duty plaintiff sought to impose in Spink v. Harms, 2026 Ga. State LEXIS 1133 (Ga. Super. Ct. Apr. 3, 2026).
Plaintiff underwent spinal fusion surgery during which her surgeon implanted bone screws manufactured by defendants. Present during the surgery were two representatives of the manufacturer. Their role was a familiar one in orthopedic and spinal procedures. Because spinal hardware systems contain numerous components in varying sizes and configurations, the representatives were there to help locate and provide the equipment requested by the surgeon. Id. at *2.
The facts regarding their involvement were undisputed. Neither representative was a physician. Neither was a surgeon. They did not scrub in. They did not enter the sterile field. They did not select hardware. They did not advise the surgeon on technique. They did not make treatment decisions. Rather, they monitored the procedure on a nearby screen and assisted the surgical team by identifying and locating the specific components requested by the surgeon. Id. Most importantly, the surgeon testified that all relevant medical decisions were his and his alone. Id. at *3.
A few days after surgery, plaintiff reported nerve deficits. Her claim in the lawsuit was that the deficits were caused by improperly placed screws. Id. Notably absent from the lawsuit was any allegation that the screws themselves were defective. This was not a products liability case. The hardware was not accused of malfunctioning. Plaintiff’s complaint was that the surgeon allegedly put the screws in the wrong place. Id. But she sued the manufacturer and its representatives.
That left plaintiff searching for a theory under which those defendants could nevertheless be held liable. Plaintiff settled on ordinary negligence– not professional negligence, not medical malpractice–just negligence. Which means plaintiff had to establish that defendants owed her a duty of ordinary care. So, plaintiff argued that the manufacturer’s representatives were obligated to “step in and say something” when they allegedly observed the surgeon incorrectly placing the screws. Id. at *5.
The court had little difficulty rejecting that theory. Under Georgia law, a defendant generally has “no duty to rescue” another from a perilous situation the defendant did not create. Id. Here, defendants did not place the screws. They did not direct the placement of the screws. They did not make any surgical decisions. Therefore, the court found no basis for imposing an affirmative duty on the representatives to intervene in the surgeon’s conduct.
Recognizing that problem, plaintiff turned to the voluntary-undertaking doctrine. Under Georgia law, when someone voluntarily undertakes an act that he otherwise has no duty to perform, and another reasonably relies on that undertaking, the act must generally be performed with ordinary or reasonable care. Id. at *5-6. But that doctrine requires an actual undertaking. The representatives never undertook to perform surgery. They never undertook to monitor the surgeon’s technique. They never undertook to evaluate screw placement. They never undertook to act as an independent safety check on the surgeon’s medical judgment. The only thing they undertook to do was assist in providing the hardware requested by the surgeon. Id. at *6. What plaintiff was really arguing was that the representatives should have stepped beyond their limited role and assumed responsibilities they never accepted in the first place. The voluntary-undertaking doctrine does not impose liability for failing to take on additional responsibilities beyond those actually undertaken.
Further, the voluntary-undertaking doctrine only applies when a defendant’s affirmative conduct increases the risk of harm. It does not create liability because someone failed to reduce a risk created by another person. As the court recognized, the representatives’ alleged inaction did not transform properly placed screws into improperly placed screws. Whatever risk existed was created by the alleged surgical error, not by anything the representatives did or failed to do. Id. at *6-7. Their failure to intervene did not increase the risk of harm; at most, plaintiff argued they failed to decrease it. That distinction proved dispositive.
Plaintiff made one final attempt to save her claims by offering an expert in medical device management who opined that the representatives should have intervened. But expert testimony could not bridge the gap. Whether a legal duty exists is a question of law for the court, not a question that can be answered by an expert witness. Id. at *7. An expert may explain industry practices. An expert may describe standards of conduct. What an expert cannot do is create a legal duty where none exists.
The Georgia state court’s decision is a welcome reminder that negligence law still requires an actual duty. Plaintiff’s theory would have transformed non-physician device representatives into de facto surgical supervisors, obligated to second-guess surgeons during procedures and potentially challenge medical decisions they neither made nor controlled. That may be a creative attempt to expand the pool of defendants, but it is not the law.
Medical device representatives may know where every screw, rod, and connector is located in the tray. What they do not have is a legal duty to take over the surgeon’s job.