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 Court of Appeals Tosses Hospital Claim on Deficient Affidavit

In Ziglar v. St. Joseph’s Cander Health System, the Georgia Court of Appeals affirmed the dismissal of a claim against a hospital due to a deficient expert affidavit. Plaintiff alleged he arrived at the hospital unconscious and developed a stage IV pressure ulcer during his stay. In his complaint, Plaintiff alleged that the hospital, nursing staff, and support staff, failed to assess properly and treat the ulcer and failed to advocate for him while he was unconscious.

With the Complaint, Plaintiff filed an affidavit of an expert nurse. The hospital answered and filed a motion to dismiss under Section 9-11-9.1 based on the failure to set forth at least one negligent act or omission and the factual basis for the allegation. According to the opinion, the following was the salient paragraph from the affidavit:

“Based on my review of the above-described medical records, it is my opinion within a reasonable degree [*3]  of medical probability that the staff of St. Joseph’s Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat Jason Keith Ziglar’s wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.”

The Court held that this paragraph and the rest of the affidavit were deficient because the affidavit did not specify discrete instances of alleged “failure to . . . treat, assess, and advocate.” Likewise, the affidavit did not include any factual basis, such as dates and times. Plaintiff attempted to argue that the case was really one for simple negligence, but the Court disagreed.

The take-home of this case is that challenges to the sufficiency of an expert affidavit are case specific. This opinion does give some credence to the idea that a plaintiff has to set forth some specifics to state a claim.

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Georgia Court of Appeals Affirms Verdict in Death of Child Born Prematurely

The Georgia Court of Appeals has affirmed a verdict in favor of the parents arising out of the death of a child born prematurely. In the case of Central Ga. Women’s Health Center v. Dean, Plaintiffs alleged that Dr. Henry Davis and Central Georgia Women’s Health Center were liable for failure to diagnose an incompetent cervix, leading to the premature delivery and death of their child. The jury returned a verdict of $4.5 million, but apportioned 50% of the fault to Dr. Davis. Defendants sought a directed verdict on causation and a motion in limine on Dr. Davis’ post-operative documentation. After verdict, the defendants sought JNOV, which was denied. The Court of Appeals affirmed.

Mrs. Dean became a patient of CGWHC at 6 weeks pregnant. She gave a history of two prior miscarriages and a loop electrosurgical excision procedure (LEEP), which put her at risk for an incompetent cervix. The first obstetrical provider ordered frequent ultrasounds throughout the pregnancy. At 22 weeks, an ultrasound showed a shortened cervical length and Ms. Dean was told to rest. Six days later, Mrs. Dean began to experience thick, dark vaginal discharge. She and her husband went to the emergency department at a local hospital. Along the way, they spoke with Dr. Davis and told him about Mrs. Dean’s history and the recent ultrasound. Dr. Davis told the Deans that the discharge was probably old blood and that the hospital would likely send them home. The Deans proceeded to the hospital, where she was examined by a nurse. The nurse called Dr. Davis, but he did not come to the hospital.

After discharge, Mrs. Dean continued to be symptomatic. In the early morning hours of the day after discharge, Mrs. Dean again called Dr. Davis to report the worsening symptoms. Dr. Davis asked Mrs. Dean to come to the office for a scheduled visit at 9:00 am. Mrs. Dean kept the appointment and was seen by a different provider, who recommended that Mrs. Dean see a maternal-fetal specialist that day. In between, Mrs. Dean was sent to the labor and delivery department at the hospital for complaints of increased pain. Mrs. Dean then went into premature labor and delivered the child at 23 weeks. The child then passed away due to extreme prematurity.

After delivery, Dr. Davis wrote two post-delivery notes about examining Mrs. Dean in the hospital. Mrs. Dean denied that Dr. Davis visited on the first day and Mr. Dean testified that a different provider was in the room that day. Dr. Davis later struck through the note to indicate it was written in error, indicating that Mrs. Dean was not in the room. The Deans testified they were in the room and a nursing note indicated they were. Dr. Davis also documented another note of an exam, which Mrs. Dean denied happened.

Causation – the question was whether Plaintiffs proved causation to a reasonable degree of medical probability. Plaintiffs’ expert testified that a “stitch would have saved this pregnancy” and resulted in a 2-4% better chance of survival each day the baby stayed in the womb. The Court held that despite some waffling by the expert, the inferences to be drawn were enough to survive directed verdict.

Motion in Limine – the Court held the trial court was within its discretion to allow cross-examination of Dr. Davis about the post-operative notes as indicative of his capacity to tell the truth under Rule 608. The Court held that the jury could determine whether Dr. Davis’s note “involved in deliberate deception rather than a simple mistake.”

The take-home from this case is that claimants can prove causation by multiple data points, not just single sentences from an expert witness. This is the prevailing trend on causation per the Court of Appeals, so causation attacks must address all of the data points, not just weak witness opinions.

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Eric Frisch to Present at the ACI Obstetric Malpractice Claims Conference

Eric Frisch will present Neonatal Brachial Plexus Palsy at the ACI Obstetric Malpractice Claims Conference. The conference will run from June 26-27 at The Union League of Philadelphia, 140 South Broad Street, Philadelphia, PA 19102.

Eric’s presentation will be on June 26 at 10:30 a.m. Please click here for more information.

Neonatal Brachial Plexus Palsy
• Brachial plexus: injury with and without shoulder dystocia
• Fundal pressure, expulsive forces and clinician applied forces
• Failure to detect macrosomia
• Understanding the key risk factors for shoulder dystocia, how they should be managed, and the delivery note
• The Expulsion Defense and its impact on juror’s perception of defense credibility and verdicts

Clients, contacts, and colleagues are eligible for a speaker discount referral rate valid until May 5th. As a speaker referral, the attendee will be registered at an unpublished rate (not available online).

Register by May 5th and your clients, contacts, and colleagues can register at the referral rate of $1,885.50. This rate is available only through Esther Ro at ACI and not online.

Please contact Esther directly with your contact information.

Esther Ro, Esq.
Sr. Legal Analyst & Program Director
American Conference Institute
Business Information in a Global Context
45 West 25th Street, 11th Floor, New York, NY 10010
Phone: 212-352-3220 ext. 5225
Email: e.ro@americanconference.com

Please book your hotel rooms at The Union League of Philadelphia as rooms are booking fast.

Please call 215-587-5570 and mention “Obstetric Malpractice” to get the preferred rate.

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Georgia Court of Appeals Holds Fact Dispute on Causation in Two Cases

The Georgia Court of Appeals held that the jury should decide two medical malpractice cases on issues of causation.

Everson v. Jordan – in this case, Plaintiffs are the parents of a man who died after running in front of a truck two days after presentation to the emergency department. The Court held that whether the man’s death was reasonably foreseeable to the emergency physician was a jury issue.

Fields v. Taylor – Plaintiffs were the surviving children and estate of a nursing home patient, who developed pressure sores before passing away. Plaintiffs sued the nursing home and the treating physician. The nursing home settled. The trial court granted summary judgment to the physician, ruling there was no evidence to link any alleged acts of the physician to the outcome. On appeal, Plaintiffs alleged they had an expert to opine on violation of standard of care and the treating medical examiner opined the cause of death was sepsis from infected pressure sores. The Court of Appeals reversed summary judgment, holding there was no requirement of a specific “proximate cause” expert and that the jury should decide the link between the alleged negligence and the outcome.

The take-home in both cases is the statement that proximate cause can be proven by linking together disparate pieces of evidence from multiple witnesses. In addition, it remains unclear the extent to which cause-in-fact is an essential element within the proximate cause analysis (compare the holding in the Swint v. Mae case).

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Georgia Court of Appeals Affirms Summary Judgment on Causation

The Georgia Court of Appeals recently affirmed summary judgment for a defendant doctor and nurse in a compartment syndrome case. Plaintiff alleged that he developed compartment syndrome in his arm from positioning during prostate surgery. Plaintiff contended that the standard of care was to reposition during surgery to relieve pressure and avoid surgery. Plaintiff produced two experts, but neither was able to say whether the initial position or the failure to reposition during the procedure caused the injury. At best, both experts could only say that the failure to reposition “may have contributed” to the outcome, but neither expert could say whether it was more likely than not. The trial court granted summary judgment and the Court of Appeals affirmed.

This case is an outlier in a series of opinions regarding causation in medical malpractice cases. The take-home is that there may be an opportunity to reestablish the formerly brighter line of causation evidence. The case is Swint v. Mae, 2017 Ga.App. LEXIS 85 (March 6, 2017).

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Georgia Supreme Court Reverses $3.7 Million Verdict on Foreseeability Grounds

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Goldstein Garber & Salama v. J.B., decided February 27, 2017, and determined that the Defendant was entitled to a directed verdict at trial.  Plaintiff was one of a number of patients who were sexually assaulted while sedated by a certified registered nurse anesthetist (CRNA) who worked at the Defendant’s dental practice as an independent contractor.  The acts of the CRNA were captured on his cell phone which was later discovered hidden in the practice’s employee restroom.  Prior to the discovery, the practice was unaware of the CRNA’s actions.  Plaintiff filed suit against the CRNA and the dental practice.  Plaintiff later dismissed the CRNA when he pled guilty to criminal charges and received a life sentence, but the case continued against the dental practice.  Plaintiff claimed that the Defendant was negligent in its supervision of the CRNA, and negligent per se based on O.C.G.A § 43-11-21.1(a) for failing to have required permitting to administer or supervise a CRNA administering general anesthesia.  After trial, a jury awarded the Plaintiff $3.4 million and apportioned 100% of the fault to the Defendant.  The Court of Appeals affirmed the trial court 4 to 3.

After granting certiorari, the Supreme Court determined that the CRNA was an independent and intervening third party wrongdoer responsible for the Plaintiff’s injury.  In this scenario, the Defendant may only be held liable for the actions of the CRNA if those actions were reasonably foreseeable, and a natural consequence of the Defendant’s failure to properly supervise him.  The Court was not persuaded by the Plaintiff’s argument that dentists are generally aware of instances where patients are abused while under anesthesia.  In this matter, the Court found that the Defendant had no prior knowledge of the CRNA’s intervening criminal acts, and that those acts were not reasonably foreseeable.  Furthermore, sexual assault is not the probable or natural consequence of failing to supervise an otherwise qualified nurse anesthetist.  Accordingly, a directed verdict was warranted.

The Supreme Court further held that the Court of Appeals erroneously found that sexual assault was a harm contemplated by the statute governing dentists and general anesthesia, O.C.G.A § 43-11-21.1.  In order for the Defendant to be found negligent per se for a violation of the statute, the Plaintiff must be considered to be within the class of persons that the statute was designed to protect.  Additionally, the harm suffered by the Plaintiff must be one that the statute contemplates guarding against.  In its ruling, the Court of Appeals cited a section in the same chapter as the above statute which stated the chapter’s purpose was to guard against unlicensed activities that negatively affect the “public health, safety and welfare,” and therefore would include sexual assault.  While the Supreme Court found that the statute applied to patients like the Plaintiff, it did not find that the statute applied to the harm.  The Court stated that the statute clearly applies to concerns regarding medical complications which may arise in a dental setting from the improper administration of anesthesia.  Because this would not include sexual assault, the trial court should have granted a directed verdict.  After ruling in favor of the Defendant, the Supreme Court declined to address whether the Defendant waived any objection to the apportionment of fault.

This is not the first time that the acts of this particular CRNA have been the basis of a lawsuit against a medical group.  In 2011, Carlock, Copeland & Stair, LLP defended a group of plastic surgeons who had hired the CRNA as an independent contractor to administer anesthesia.  A similar video of a patient was discovered and that patient later filed a complaint alleging ordinary and professional negligence.  At the motion for summary judgment, Wade Copeland successfully argued that the CRNA’s acts were not reasonably foreseeable and that the surgical practice had no prior knowledge of the acts.  The Cobb County trial court’s decision to grant the Defendant’s motion for summary judgment was not appealed.

The take-home is that unforeseeable criminal acts, such as sexual assault, committed by an independent contractor may not be imputed to the hiring party without prior knowledge of wrongdoing by that particular actor.  Such acts are also not contemplated by statutes designed to regulate health care and medical professionals, and therefore may not be the basis of a negligence per se claim.

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Georgia Court of Appeals Remands for Further Finding on Hospital-Doctor Agency Issue

In a second ruling in the Thomas v. Atlanta Medical Center matter, the Georgia Court of Appeals remanded the case back to the trial court for further determination of whether the defendant emergency physician and radiologists were agents or in a joint venture. The emergency physician contracted with a practice group, who, in turn, contracted with the hospital. The group-hospital contract designated the doctor as an independent contractor. The doctor, however, did not have an agreement with the hospital. The radiologist was a member of a professional corporation who also contracted with the hospital. The radiology group-hospital contractor also designated the radiologist as an independent contractor. Plaintiff alleged that both doctors formed a “joint venture” with the hospital to provide medical services for profit.

The hospital moved for summary judgment on the grounds that the group-hospital contracts contained sufficient language under O.C.G.A. §51-2-5.1, which holds a hospital harmless for the acts of independent contractors under certain circumstances. The trial court granted summary judgment. The Court of Appeals reversed on narrow grounds; specifically, the Court ruled that the trial court did not address the relationship between the doctors and the hospital and the language in the group-hospital contracts was not sufficient as a matter of law to comply with the statute. The Court wrote that the hospital may still ultimately be entitled to summary judgment, but not on the record.

The trial court also granted summary judgment on the joint venture issue. Plaintiff complained that the trial court granted the motion sua sponte and without notice. The Court of Appeals agreed and remanded the issue back to the trial court for full briefing.

The take-home message is that Section 51-2-5.1 is defendant-specific and will be applied according to the plain language of the statute.

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Georgia Court of Appeals Holds that Expert Not Required for Proximate Cause in Med Mal Case

The Georgia Court of Appeals reversed summary judgment in favor of a doctor and nursing home in the case of Fields v. Taylor, decided January 18, 2017, holding that the trial court erred in granting the motion on proximate cause. Plaintiffs alleged their mother died as a result of sepsis from a decubitus ulcer that developed during a stay at the defendant rehab facility. Plaintiffs presented the testimony of a well-known medical examiner, who opined that the cause of death was sepsis from the wound in his opinion. Defendants moved to exclude the expert’s opinions as unreliable, which was denied, and moved for summary judgment on the grounds that Plaintiffs failed to present an expert to opine on the connection between the cause of death and the specific acts of negligence, which they called “proximate cause.” (Note – we would call this “cause-in-fact”).

The Court of Appeals affirmed the denial of the motion to exclude, holding that the expert properly used the “differential diagnosis” method and then drew conclusions based on experience. The Court reversed the grant of summary judgment, holding that the Plaintiffs were not required to produce expert testimony specifically on “proximate cause” and that the testimony of several experts can be pieced together to create a fact dispute. In this case, Plaintiffs presented a standard of care expert and the medical examiner expert. Together, their testimony was sufficient to create a genuine issue of fact.

The take-home is that it continues to be difficult to win summary judgment on proximate cause in medical malpractice cases, even when the expert testimony appears weak and disconnected.

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Georgia Court of Appeals Allows Late Addition of “Simple Negligence” Claim

In the case of Thomas v. Atlanta Medical Center, the Georgia Court of Appeals reversed the dismissal of a “simple negligence” claim based on expiration of the statute of limitations. The case arose out of the alleged failure to diagnose a neck fracture and improper spine clearance in the emergency department. Plaintiff alleged the hospital was vicariously liable for the emergency physician and interpreting radiologist. The hospital denied and claimed they were independent contractors. During discovery, an alleged conflict in the evidence arose as to whether the emergency physician and nurse followed hospital protocol for removal of the cervical collar following radiological clearance. Plaintiff amended her complaint to add a claim for “simple negligence” against the hospital and nurse for failure to follow the protocol. The hospital moved to dismiss the claim based on expiration of the statute of limitations and the case of Thomas v. Medical Center of Central Georgia. The trial court granted the motion.

On appeal, the Court of Appeals further limited the application of the Thomas v. Medical Center of Central Georgia case. The Court distinguished that case because it was decided on application of the affidavit statute, not the relation back statute. The Atlanta Medical Center case represents a further erosion of the Medical Center of Central Georgia case and strengthens the ability of claimants to add claims even though the statute of limitations has expired, especially if the claims are couched as non-professional malpractice claims.

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Office of Civil Rights Issues Phishing Email Alert

On November 28, 2016, the Office of Civil Rights of the Department of Health and Human Services, the entity responsible for HIPAA administration, issued an alert about a potential “phishing” email scam. The email purports to come from OCR’s Director, Jocelyn Samuels, and targets employees of covered entities and business associates. The email appears legitimate and includes a link concerning the audit program. By clicking on the link, the user is redirected to a cybersecurity firm marketing website.

For those who may not be familiar with the term, “phishing” refers to an email that looks official or legitimate, but then redirects the person to an unaffiliated website. Common “phishing” emails mimic requests from credit card companies for personal information, auction sites for login information, and banks for updated privacy information. As always, if you have received an email that you did not expect and have questions about it, contact the alleged source directly to verify before opening.

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