Carlock Copeland Health Law and Regulation Update

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Carlock, Copeland & Stair, a civil litigation firm, has a reputation for forceful, creative and cost-effective advocacy on behalf of its clients. Formed in 1970 with five attorneys operating out of a downtown Atlanta office, we now have over 80 civil litigation attorneys handling legal matters across the Southeast from offices in Atlanta, GA, Charleston, SC and Chattanooga, TN.

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Georgia Legislature Enacts Statute Protecting High-Low Agreements

On April 9, 2019, the Georgia General Assembly sent HB128 to the governor for signing. HB128 modifies the rules regarding insurance company and physician reporting of the “low” amount of a high-low agreement. Now, when the “low” amount is paid, the insurance company does not have to report the payment as a settlement to the Composite Medical Board and the physician does not have to update their profile. This makes Georgia law square up with the National Practitioner Databank Reporting rules and seemingly overturns a 2016 Georgia Attorney General opinion.

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South Carolina Supreme Court Interprets Statute of Repose

The South Carolina Supreme Court interpreted South Carolina’s statute of repose applicable to medical malpractice actions, which requires an action to be commenced within “six years from [the] date of occurrence,” and, in a split decision, found the statute begins to run after each occurrence rather than the first occurrence.

In Marshall v. Dodds, Marshall was treated multiple times by Dr. Dodds over the course of many years, beginning in July 1999 and ending in September 2005.  In July 1999 Marshall presented to Dr. Dodds and Dr. Dodds noted elevated protein levels in Marshall’s urine but failed to run a test that would have shown that the protein was cancerous.  Over the course of Dr. Dodds’ treatment of Marshall, he repeatedly noted the increased protein levels but never ran the test to determine if the protein was cancerous.  The last time Dr. Dodds treated Marshall was in September 2005. In February 2010, Marshall was diagnosed with a rare type of blood cancer.  In February 2011, Marshall sued Dr. Dodds and another doctor for a failure to diagnose.

Defendants’ argued that the statute of repose began to run in July 1999 when Dr. Dodds first failed to diagnose Marshall with cancer, requiring Marshall to file suit by July 2005.  Because suit was not filed until February 2011, Marshall’s claims were time barred. The South Carolina Supreme Court disagreed.  The Court interpreted the statute, which it noted stated “occurrence” and not “first occurrence,” and determined that each time Dr. Dodds treated Marshall and failed to diagnose her, it was an “occurrence” under the statute.  Because suit was filed in February 2011, Marshall could maintain claims for any occurrences from up to six years prior, February 2005.  The last time Dr. Dodds treated Marshall and failed to diagnose her was in September 2005.  Accordingly, Marshall could maintain an action for those damages occurring within the statute of repose, but not for those occurring outside the statute of repose.

Take-home:  If a practitioner fails to diagnose a patient on multiple occasions, both within and outside of the statute of repose, that patient is not time barred from bringing an action for damages.  The patient, however, can only recover for those damages occurring within the statute of repose.

The case is Marshall v. Dodds, Case No. 27873 (S.C. Sup. Ct. filed March 27, 2019).

To read the Supreme Court’s opinion, please click here.

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Georgia Court of Appeals Reverses Defense Verdict on Hearsay Ruling

The Georgia Court of Appeals has reversed a defense verdict in a medical malpractice case because the trial court improperly admitted hearsay testimony under the “learned treatise” exception. In Moore v. Wellstar Health, plaintiff sued a surgeon and an anesthesiologist after her husband died when he aspirated during rapid sequence induction.

The evidence showed that the patient had a high grade bowel obstruction. Plaintiff’s expert anesthesiologist contended that the standard of care required placement of a nasogastric tube before induction of anesthesia. The defense countered that placement of an NG tube after rapid sequence induction was reasonable.

The defense cross-examined plaintiff’s expert with a document published by the American Society of Anesthesiologists entitled “Committee on Expert Witness Testimony Review and Findings” regarding the testimony of a different expert in a different case. In the document, the ASA sanctioned an expert for testifying that the standard of care required placement of a nasogastric tube before rapid sequence induction. The Moore defense used the document to cross-examine plaintiff’s expert over objection. The jury returned a defense verdict.

The Court of Appeals reversed, holding that the document was hearsay and did not qualify as a “learned treatise” because it was not a published treatise, periodical, or pamphlet. Rather, relying on cases from other jurisdictions, the Court held that the “learned treatise” exception to the hearsay rule is limited and does not include documents that are litigation-inspired, even if they are published by a reputable entity. In addition, the Court held that the error was harmful because the use of the document implied that the plaintiff’s expert’s testimony was sanctionable and therefore not worth of belief.

Take-home: a similar theory has been leveled against a number of publications, including the widely-used ACOG guidelines regarding neonatal encephalopathy (the “Green Book”), among others. Practitioners should look carefully at documents they intend to use for cross-examination to make sure that they are admissible. Notably, the Court did not delve into whether the issue was admissibility into evidence versus use on cross-examination solely for impeachment.

The case is Moore v. Wellstar Health, 2019 Ga.App. LEXIS 170 (March 12, 2019).

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Georgia Court of Appeals Reverses Immunity for Ambulance

The Georgia Court of Appeals reversed the grant of summary judgment for an ambulance service based on the emergency responder statute. Plaintiff was the wife of a deceased driver and the mother of a son injured in a car accident. Plaintiff alleged that when the ambulance service responded, they failed to treat her husband, resulting in his death. Plaintiff also alleged that the ambulance service improperly treated her son, resulting in additional injuries.

The ambulance service moved for summary judgment under Section 31-11-8, which grants immunity to ambulance services who provide services in good faith and without remuneration. The trial court granted the motion, ruling that the statute applied even though Plaintiff alleged omissions and that the ambulance service did not receive remuneration.

The Court of Appeals reversed, holding there was a fact dispute as to whether the ambulance service received remuneration within the meaning of the statute. The evidence was the ambulance service received compensation for mileage and for “ALS1.” Under the CMS manual for reimbursement, ALS1 is for charges related to emergency services and not an administrative cost like mileage. Accordingly, the ambulance service received remuneration and was not entitled to immunity as a matter of law.

The case is Ortega v. Coffey, 2019 Ga.App. LEXIS 86 (Feb. 26, 2019).

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Georgia Court of Appeals Reverses Summary Judgment in Fraudulent Billing Case

The Georgia Court of Appeals has reversed the grant of summary judgment to the defendant in a case alleging billing fraud. Plaintiff sued her podiatrist, claiming the defendant did not perform the procedures for which she was billed. Plaintiff did not file an expert affidavit with the complaint. Defendant moved for summary judgment and the trial court granted the motion, holding that the question was one of professional judgment and therefore an affidavit was required.

The Court of Appeals reversed. As an initial matter, the Court pointed out that a motion to dismiss for failure to state a claim is the proper vehicle to dispose of a complaint in which there is no expert affidavit. Next, the Court held that the question of whether an expert would need to testify about the procedures was separate from the question of whether an expert affidavit is required with the complaint. The latter question turns on whether the claim is one for professional negligence as opposed to fraud. The Court relied on a long line of cases that distinguish claims for intentional conduct from claims for negligence. And the Court reaffirmed the rule that if a claimant alleges intentional conduct in the complaint and does not attach an affidavit, then cannot later change the case into a negligence claim, citing Walker v. Wallis, 289 Ga. App. 676 (2008).

Take-Home:  The lines between what is considered to be ‘simple’ negligence, professional negligence, or intentional acts and when an affidavit is required remain as cloudy as ever.

The case is Williams v. Murrell, 2019 Ga.App. LEXIS  80 (Feb. 22, 2019).

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Georgia Court of Appeals Holds Treating Doctor Must Be Identified as Expert Witness

The Georgia Court of Appeals affirmed the exclusion of a treating physician who was not identified as an expert witness on standard of care during discovery and only on the eve of trial. Plaintiff claimed she was injured by the defendant physician following three foot surgeries. The defendant recommended additional treatment, including removal of bone spurs. The defendant physician then recommended the plaintiff seek a second opinion from Dr. Light.

Plaintiff sued the defendant and attached the affidavit of a specially-retained expert witness, who offered three opinions regarding deviation from the standard of care. The parties also had a scheduling order, which was modified three times, but included specific deadlines for the identification of experts, including “rebuttal” experts. During discovery, defendant asked plaintiff to identify “any witness whom you expect to call as an expert witness at trial, including any . . . treating physicians from whom you may elicit standard of care or causation testimony at trial.” Initially, Plaintiff responded that she had not decided who she was going to call. During the extended discovery period, Plaintiff identified the affiant/specially-retained expert, who only testified to the three deviations set forth in the affidavit.

After the close of the discovery period per the scheduling order, the trial was set for over a year later. Less than a month before trial, plaintiff served supplemental discovery responses, identifying the treating physician, Dr. Light, as a witness and stating that he would offer three new opinions regarding deviations from the standard of care. Defendant deposed Dr. Light and established what he reviewed to form his opinions, which included records and imaging studies that he had not reviewed while he was caring for plaintiff.

Defendant moved to exclude Dr. Light’s standard of care testimony because he had not been identified as an opinion witness during the discovery period. The trial court granted the motion and the Court of Appeals affirmed. On appeal, plaintiff conceded she failed to identify Dr. Light as an expert witness, but argued that she was not required to do so under what she called the “treating physician exception.” The Court rejected the idea of such an exception, holding that once Dr. Light reviewed materials that he did not have while he was treating the patient and offered standard of care opinions, he was an expert witness for purposes of disclosure during discovery. The Court distinguished cases in which a treating provider is called to offer opinions derived solely from firsthand observation and those opinions are not standard of care opinions, writing “a party may present expert testimony from a fact witness (i.e., a witness who does not have to be identified pursuant to Rule 26), who is testifying as to facts he or she observed or learned” while treating the patient, but that “such a witness may not, however, provide expert opinion testimony on the standard of care and whether that standard was breached, unless the witness has been identified as an expert” under Rule 26.

Take-Home:

This is the clearest declaration by the Georgia appellate courts regarding the distinction between an “expert witness” and what is labeled a “percipient witness” in Federal court. In the course of discovery, if a treating physician is going to review data that they did not have at the time they were taking care of the patient and they are offering standard of care testimony, that witness must be disclosed. In our practice, we ask two separate interrogatories, one regarding witnesses who have been specially-retained for purposes of litigation and a separate interrogatory regarding any witness who will offer opinion testimony at trial regarding standard of care, causation, or damages.

The case also supports the notion that Georgia courts are strongly enforcing scheduling orders and doing so against all parties. All parties should be mindful that, within the confines of a scheduling order, the deadlines are meaningful and discovery and disclosure should be focused on full compliance.

The case is Glover v. Atkinson-Sneed, 2019 Ga. App. LEXIS 73 (Ga.Ct.App. Feb. 20, 2019).

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Georgia Court of Appeals Holds that Statute of Repose Prevents Adding New Doctor to Case

The Georgia Court of Appeals has held that a doctor could not be added to an existing lawsuit filed against her practice group and a physician in her practice group more than five years after the date of the negligent act or omission. In Preferred Women’s Healthcare v. Sain, the plaintiff originally sued an obstetrician and the group for malpractice arising out of an alleged failure to diagnose a malignancy on ultrasound. The ultrasounds allegedly showing the malignancy were performed in April 2012. The patient died of cancer in December 2013.

Plaintiff filed the original lawsuit in 2014 and only named one obstetrician and the practice group. In February 2017, Plaintiff deposed the ultrasound technologist, who testified that a second doctor’s “squiggly line” mark appeared on the ultrasound reports. In May 2017, Plaintiff deposed the second doctor, who confirmed that she provided care in April 2012 and reviewed the reports.

In June 2017, Plaintiff moved to add the second doctor. The second doctor opposed and claimed that the case against her was barred by expiration of the five year statute of repose. The trial court granted the motion to add and this appeal followed. The Court of Appeals reversed the trial court, holding that the five year statute of repose “destroys” the cause of action against the second doctor and that the otherwise liberal rules for adding parties and relation back of amendments do not apply once the statute of repose has expired.

Take-home: the statute of repose has always been a hard stopping point for medical malpractice claims and this case reaffirms this principle. The decision is timely as other cases support the notion that parties and claims may be added at various points before expiration of the statute of repose.

The case is Preferred Women’s Healthcare v. Sain, 2019 Ga. App. LEXIS 30 (Ga.Ct.App. Jan. 28, 2019

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Practice Group Pays $125k to Settle HIPAA Claim

A Connecticut physician group recently agreed to pay $125,000 to settle a claim of “reckless disregard” for a patient’s privacy rights. The group contacted the local television station to give a statement about a dispute between its patient and one of its doctors. A reporter contacted the doctor, who “impermissibly disclosed the patient’s protected health information.” The Office of Civil Rights investigated and concluded that the doctor had shown “reckless disregard” after the doctor was instructed by the group’s privacy officer to respond with “no comment.” The group failed to discipline the doctor or take corrective action.

Take-home: while a patient has an unfettered right to disclose their private health information in public and to the media, a covered entity does not. There is no “media exception” to the Privacy Rule.

To read the report and corrective action plan, please click here.

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Georgia Court of Appeals Holds that Metastatic Cancer is New Injury

The Georgia Court of Appeals has held that metastatic cancer constitutes a “new injury” for purposes of calculating the statute of limitations. Plaintiff went to an obstetrician/gynecologist in August 2013 with complaints of abnormal bleeding from a large uterine fibroid mass. Plaintiff and the doctor discuss treatment options, including robotic hysterectomy. The doctor then referred the patient to a gynecological oncologist.

The oncologist examined the patient and reviewed films. In November 2013, the oncologist reported to the obstetrician that there was a “very low suspicion” for malignancy. The obstetrician proceeded with the robotic procedure on December 13, 2013 based on the oncologist’s report. During the procedure, the fibroids were cut (“morcellated”) and not removed intact. Pathology reports showed the fibroids were cancerous. Post-operative CT and PET scans were negative until October 24, 2014, when the patient presented with pelvic tumors. The patient passed away on May 19, 2015.

On December 9, 2015, the patient’s husband was appointed administrator of her estate. He then filed suit against the obstetrician, the practice group (Wellstar Physicians), and named several “John Doe” defendants. In April 2017, plaintiff filed an amended complaint to name the oncologist and substitute him in for one of the John Doe defendants.

The oncologist moved to dismiss on the grounds of expiration of the two year statute of limitations. The trial court converted the motion to a partial motion for summary judgment and held that the “new injury” exception to the statute of limitations did not apply.

The Court of Appeals reversed, holding the evidence showed the “new injury” exception did apply.  The general rule in misdiagnosis cases is that the misdiagnosis is the injury because the plaintiff suffers pain and incurs medical expenses from that point forward. In some cases, however, when the injury from the misdiagnosis is relatively benign or treatable but then develops into a more debilitating or “less treatable” condition, the injury is the “subsequent development of the other condition.” In this case, the Court held that the metastasis led to “a substantially reduced likelihood of her survival” and was a result of the morcellation, rather than removal of the fibroids intact.

The Court also held that the statute of limitations was tolled until the administrator was appointed and that the amendment related back to the filing of the original complaint.

The case is Hayes v. Hines, 2018 Ga. App. LEXIS 615 (Oct. 26, 2018).

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Georgia Court of Appeals Affirms Plaintiffs’ Verdict in Gross Negligence ER Case

In the second appellate version of Southwestern Emergency Physicians, P.C. v. Quinney, the Georgia Court of Appeals affirmed a $4.5 million verdict for the plaintiffs. Plaintiffs sued Southwestern Emergency Physicians, a doctor, and the hospital where the care encounter took place. Plaintiffs alleged that the negligence of the physician and two non-party nurses caused Mr. Quinney to become a paraplegic.

On appeal, the main issues were whether the trial court erred in permitting Plaintiffs to argue both gross negligence and the “ordinary” professional malpractice standard of care in light of the previous appellate decision in the case, whether the trial court erred by instructing the jury that the gross negligence standard applied to non-parties for purposes of apportionment, and whether the trial court should have listed the hospital as a separate entity from its employee nurses for purposes of apportionment. The Court of Appeals affirmed the verdict, denying each of the grounds asserted.

In the first appellate case, the defense moved for summary judgment on the issue of “ordinary” professional malpractice because the care provided arose solely out of emergency medical care to which the gross negligence standard applies under Section 51-1-29.5. On appeal, the Court held that the gross negligence standard applied because “emergency medical services” had been rendered, but ruled there were fact disputes about whether the doctor was grossly negligent. After remand and finishing discovery, the defense moved to exclude any testimony or argument about anything other than gross negligence. The trial court denied the motion in part because two defense experts had testified since the first appeal that Mr. Quinney was stable and that the jury should hear the evidence and then decide whether to apply the gross negligence standard or the “ordinary” standard of care. The defense then stated that it intended to discuss gross negligence in opening and Plaintiffs argued they should be allowed to discuss ordinary negligence if that was the case. The trial court agreed and gave “careful” preliminary and jury instructions that were “adjusted to the evidence, apt, and a correct statement of the law” regarding gross negligence. In addition, during the charge conference, Plaintiffs withdrew charges related to “ordinary negligence” leaving only gross negligence as the issue. Accordingly, the Court of Appeals affirmed the denial of the motion to preclude any mention to ordinary negligence.

Next, the defense argued that the trial court should not have instructed the gross negligence standard as it applied to apportioning fault to non-parties, such as the individual nurses. After Plaintiffs withdrew the ordinary negligence jury charge in the charge conference, the defense argued for the charge to apply to the non-parties on the theory that apportionment only requires a finding of fault, not liability. The Court held that the duty the non-parties owed to Mr. Quinney was one of “slight care” (gross negligence) and that the defense was required to prove they did not provide such care if the jury was to apportion to them. Notably, the jury did apportion to two non-parties.

Lastly, the defense argued the hospital should have also been listed as a separate party for apportionment. The Court held that because the defense did not offer any evidence that the hospital would be liable independent of its role as employer of the two non-party nurses who were listed on the verdict form, there was no error.

Take-home: this case highlights the complicated nature of trying a case under the “gross negligence” standard and with apportionment. These cases are highly fact specific and it can be challenging to get the right jury charges for all of the scenarios that might be presented.

The case is Southwestern Emergency Physicians, P.C. v. Quinney, 2018 Ga. App. LEXIS 538

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