Carlock Copeland Health Law and Regulation Update

logoHealth Law and Regulation Update

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.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Affirms Summary Judgment on Causation

The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to a defendant hospital. In Edokpolor v. Grady Memorial, the plaintiff claimed her husband died after aspirating Golytely. The doctor’s orders were to administer the medication through a nasogastric tube. The nurse, however, administered it orally.

In support of the complaint, the plaintiff filed an expert affidavit. The expert testified that the nurses were obligated to follow the doctor’s orders and that the administration of the medication by mouth caused aspiration and caused his death. The hospital moved for summary judgment, pointing out there was no evidence the patient aspirated during administration of the Golytely orally, that the patient may have aspirated after ingesting the medication by vomiting, and that administering the medication through a nasogastric tube does not eliminate the possibility of aspiration. Plaintiff did not submit any opposing evidence. The trial court granted the motion and the Court of Appeals affirmed, holding that the affiant’s bare and conclusory allegations about causation did not create a genuine issue of material fact.

The case is Edokpolor v. Grady Memorial, 2018 Ga.LEXIS 507.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Reverses Summary Judgment on Misdiagnosis Statute of Limitations

The Georgia Court of Appeals has reversed the grant of summary judgment to the defendants on expiration of the statute of limitations in a misdiagnosis case. Plaintiff was a doctor who began suffering neurological symptoms in January 2013. She presented to one of her partners for workup and was referred to another physician. The two treating defendants did not order an echocardiogram to determine whether she was experiencing a cardiac condition that could be causing her to suffer neurological symptoms from transient ischemic attacks.

Plaintiff suffered a stroke in September 2013. She sued her treating physicians, claiming they should have ordered an echocardiogram to determine the cause of her symptoms before she suffered the stroke. The defendants moved for summary judgment, arguing their alleged misdiagnosis occurred more than two years before Plaintiff filed suit, thereby triggering the statute of limitations. The trial court granted the motion.

In reversing, the Court of Appeals concluded that Defendants had not carried their summary judgment burden of showing the undisputed facts demanded a finding as a matter of law. The Court held that Defendants failed to show that their misdiagnosis caused the symptoms Plaintiff was experiencing between January and September, as opposed to some other cause. In otherwords, while Defendants were admitting they misdiagnosed the condition during that time frame, they failed to prove that their misdiagnosis was the only cause of the symptoms, thereby precluding summary judgment.

The case is Adams v. McDonald, 2018 Ga.App. LEXIS 401 (June 21, 2018).

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Affirms Exclusion of Hidden Affidavit

The Georgia Court of Appeals has affirmed exclusion of an affidavit of a key witness in a medical malpractice case. Plaintiff worked for a physician office. She suffered a back injury and was referred to the defendant anesthesiologist for pain management. During the second injection by the Defendant, Plaintiff contends she complained of pain shooting down her leg and additional problems.

The issue at trial was when the Defendant learned about the new complaints. The anesthesiologist testified that she did not learn about the complaints for several days until it was too late to do anything. Plaintiff testified that she told Defendant about her complaints much earlier.

During discovery, Defendant sent interrogatories regarding witnesses generally, witnesses who had expressed opinions about Defendant’s care, and requesting documents. Plaintiff’s interrogatory responses identified her employer generally, but not as someone who would opine about Defendant’s care specifically. Later, Plaintiff’s employer executed an affidavit in which he testified he had a phone call with Defendant very early on about the new complaints. Plaintiff did not disclose the affidavit to Defendant in discovery.

At trial, Plaintiff’s employer did not recall his alleged conversation with Defendant. Plaintiff’s counsel then sought to use the affidavit to refresh his memory and to admit it into evidence. Defendant objected because the affidavit had not been disclosed, which Plaintiff admitted, but contended it was work product. The trial court excluded the use of the affidavit.

Plaintiff appealed. The Court of Appeals reversed, but the Georgia Supreme Court vacated the case and remanded the case back to the Court of Appeals for further consideration in light of the 2017 decision of Resurgens, P.C. v. Elliott. The Court of Appeals held the trial court did not abuse its discretion, ruling that Plaintiff’s interrogatory responses required supplementation regarding the employer’s testimony. When Plaintiff did not supplement the discovery after obtaining the affidavit, the initial interrogatory response became misleading, thereby justifying the sanction.

Take-home message: there is tension between Section 9-11-26(e)(2)(B), which does not require supplementation when the response was “complete when made” unless the respondent later learns the original response is no longer true, and Section 9-11-37, which requires supplementation of prior responses that are incomplete, ambiguous, or no longer complete accurate.

The case is Anglin v. Smith, 2018 Ga.App. LEXIS 405 (June 21, 2018).

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Holds that Doctor’s Interest in Outcome is Fair Game on Cross-Exam

The Georgia Court of Appeals has held that a doctor’s lien is fertile ground for cross-examination. In the case of Stephens v. Castano-Castano, the plaintiff sued for injuries arising out of a motor vehicle accident. The evidence showed that her attorney referred her to a treating physician who, in turn, treated her under the terms of a lien based on her recovery. Attempts at presuit settlement ultimately resulted in no settlement (and part of the decision deals with offers and acceptance), so a lawsuit was filed.

At trial, the defense sought to cross-examine the treating physician on the fact the attorney referred the plaintiff to him and his lien. Plaintiff moved to exclude the evidence, which was granted.

The Court of Appeals reversed, holding that the trial court should have permitted the defense to cross-examine the doctor based on the financial interest. The Court wrote:

“Dr. Chappius’ financial interest in the outcome of the case is highly relevant to the issue of his credibility and potential bias, as Dr. Chappuis has become an investor of sorts in the lawsuit. If Castano receives a large verdict amount, then Dr. Chappuis has a near certain chance of fully and quickly recovering the costs of the treatment provided to Castano at no initial cost. On the other hand, if Castano does not recover at trial, Dr. Chappuis’ chances of being fully reimbursed are more doubtful. Thus, the expert witness has a financial motivation to testify favorably for Castano, and the probative value of this testimony outweighs its prejudicial effect.”

The Court rejected the notion that the attorney’s referral was fair game, however. In so ruling, the Court wrote that “[a]t most, there is a suggestion of unseemliness which creates a danger of unfair prejudice and confusion of the issues before the jury.”

The case is Stephens v. Castano-Castano, 2018 Ga. App. LEXIS 307.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Validates Complaint Filed Without Expert Affidavit

Under Georgia law, a medical malpractice complaint may be filed without an expert affidavit if the statute of limitations is to expire within 10 days and an attorney files an affidavit testifying they were not retained more than 90 days earlier. In a case of first impression, the Georgia Court of Appeals affirmed the denial of a motion to dismiss for failure to file an expert affidavit when an attorney sent a request for medical records 18 months before certifying they had not been retained to file suit.

In Pico v. Brady, the alleged malpractice occurred on August 1, 2014. On December 16, 2014, Plaintiff signed an authorization permitting attorney Chris McClure to obtain medical records from the potential defendant doctor. On the same day, Plaintiff filled out a “New Client Questionnaire” for Mr. McClure in which Plaintiff acknowledged there would be no attorney-client relationship until a “Legal Services Contract” was executed. On July 29, 2016, Plaintiff signed the Legal Services Contract. On August 1, 2016, Mr. McClure filed the lawsuit for Plaintiff.  However, Mr. McClure did not file an expert affidavit; rather, he filed an attorney affidavit stating that he had not been retained until July 29, 2016.

Defendants moved to dismiss and attached the medical records authorization and request as well as the “New Client Questionnaire.” The trial court denied the motion and the Court of Appeals affirmed. The Court ruled that, based on the Georgia Rules of Professional Conduct, the client controlled the scope of the attorney-client relationship.  Plaintiff in this case had expressly limited the scope of representation in December 2014 to only the collection of the records.  Since Plaintiff had not retained Mr. McClure for purposes of filing the lawsuit until July 29, 2016, there was no basis to dismiss the case.

Notably, the subsection of OCGA 9-11-9.1 regarding the filing of an attorney affidavit is silent on whether the attorney is retained for any purpose, including the filing of the lawsuit. Instead, the plain language of the statute reads that the attorney must certify that his or her “law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiff’s claim or claims.”

Pico v. Brady, 2018 Ga. App. LEXIS 293 (2018).

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Remands Case for Pain and Suffering Award

The Georgia Court of Appeals has reversed a jury verdict and remanded the case for retrial when the jury awarded past medical expenses but $0 for future medical expenses, past and future lost wages, and past and future pain and suffering. The Court held that the award of $0 was “so grossly inadequate” as to justify a new trial. The Court further held that it could not remand the case for a trial on damages only because the original jury apportioned 49% of the fault to the plaintiff. The case is Evans v. Rockdale Hospital, Ga.Ct.App. April 12, 2008.

Mrs. Evans presented to the emergency department at Rockdale Hospital after waking with the “worst headache of her life.” She told the nursing staff she thought she had food poisoning and the triage nurse failed to document the complaint of a headache. Mrs. Evans was worked up for digestive complaints and discharged. She followed up with a primary care physician. She continued to experience a severe headache for several days, eventually returning to the hospital. A CT scan showed she had suffered a stroke as a result of a ruptured aneurysm. At the time of trial, she was permanently disabled and required 24 hour attendant care.

At trial, Plaintiffs presented evidence of $1.2 million in past medical expenses, future medical expenses, past and future lost wages, and a day-in-the-life video, among other evidence, of pain and suffering. The jury returned a special verdict for the past medical expenses but $0 for all other items of damages, finding that Rockdale was 51% at fault and Mrs. Evans was 49% at fault based on what she complained of in the emergency department during the initial visit. Judgment was entered for just over $600,000, with an award for loss of consortium.

Plaintiffs moved for additur or for new trial on the ground that the award was so grossly inadequate as to be inconsistent with the preponderance of the evidence. The trial court denied the motion and the Court of Appeals reversed and remanded for a new trial on all issues. The Court held that Plaintiffs had presented evidence of past and future pain and suffering and that the law infers pain and suffering from personal injury. Because the jury awarded the past medical expenses and there was such evidence of pain and suffering, then, as a matter of law, the $0 award was grossly inadequate. The Court distinguished other cases in which there had been awards of special damages, but no pain and suffering.

Take-home message: this case probably does not have a lot of broad application, but is worth reading. We will monitor this case for further appeals.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Supreme Court Reverses Trial Court for Wrongly Giving an Ordinary Negligence Charge in a Medical Malpractice Case

On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.  On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.

On September 16, 2008, patient Ms. Brown had an epidural steroid injection administered by an anesthesiologist at a surgery center.  Ms. Brown was given the sedative Propofol prior to the procedure.  Her blood oxygen level was 100 percent when the procedure began.

Shortly after the procedure began, a pulse oximeter used to monitor the patient’s blood oxygen level sounded an alarm, indicating a drop in Ms. Brown’s oxygen in her blood.  Technicians and nurses in the room made efforts to increase the oxygen level.   The anesthesiologist stated that the machine was malfunctioning and that Ms. Brown’s true oxygen saturation level and breathing was fine.

Ms. Brown failed to resuscitate following the procedure, and EMTs responded to the practice’s 911 call for help.  The anesthesiologist told Ms. Brown’s daughter-in-law and the physician who admitted her to the hospital that the procedure had gone fine and Ms. Brown was simply having complications coming out of the anesthesia.  The anesthesiologist gave no indication that Ms. Brown might have experienced respiratory complications during the procedure.

Plaintiff’s counsel asserted both medical malpractice and ordinary negligence claims, including that the anesthesiologist improperly administered Propofol without positioning another anesthetist at the head of the table, failed to respond appropriately when the patient experienced respiratory distress and failed to contact emergency medical services promptly.

The trial judge charged the jury on both ordinary negligence and medical malpractice.

The Court of Appeals had concluded that the trial court charged correctly on ordinary negligence because a lay person would not need expert testimony to understand the meaning of data provided by pulse oximeters and blood pressure monitors and how best to respond to that information in the midst of a medical procedure.

The Georgia Supreme Court accepted certiorari and framed the issues as:  1) whether the trial court’s instruction on ordinary negligence was proper, and 2) if not, whether that error was harmful to the defendants.  The Supreme Court concluded that the ordinary negligence charge was improper and harmful to the defendants, ordering a retrial.    The Supreme Court disagreed with the Court of Appeals’ finding that responding to medical data from medical devices did not require medical judgment.

The case is Southeastern Pain Specialists, P.C. v. Brown, et al., Georgia Supreme Court No. S17G0733, decided March 5, 2018.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Eleventh Circuit Court of Appeals Permits Introduction of Evidence of Litigation Funding

In a much anticipated decision, the 11th Circuit, in Houston v. Publix Super Markets, Inc., 2018 U.S. App. LEXIS 2935 (11th Cir. Feb. 7, 2018), held that a district court did not err in admitting evidence at trial concerning payments made by a litigation funding company to the plaintiff’s treating doctors because the evidence was relevant to show bias on the part of the doctors who testified in the case.

Plaintiff Robin Houston sued Publix Super Markets after she slipped and fell in one of its stores.  She subsequently underwent treatment for her injuries from a number of providers, which treatment was largely funded my ML Healthcare, a “’litigation investment’ company that contracts with doctors to provide medical care for injured people with viable tort claims who lack medical insurance.”  Houston, 2018 U.S. App. LEXIS 2935, at *2.  During the litigation, Publix conducted discovery regarding the relationship between Plaintiff, her treating doctors, and third-party ML Healthcare.  Publix learned that, pursuant to its contracts, ML Healthcare purchases at a discounted rate from these physicians the medical debt that the putative plaintiffs incur during their treatment.  The contracts also grant ML Healthcare the right to later recover the full cost of the medical care provided out of any subsequent tort settlement or judgment the treated individuals receive.

Publix sought to introduce at trial evidence of these contractual relationships to show that Plaintiff’s treatment providers were biased in their testimony and that Plaintiff’s claimed medical expenses were unreasonable.  Plaintiff sought to exclude this evidence, arguing, primarily, that it was barred by Georgia’s collateral source rule.  That rule generally gives a plaintiff the right to recover damages undiminished by collateral benefits, the rationale being that a defendant should not benefit from a plaintiff’s mitigation of her losses.  Polito v. Holland, 258 Ga. 54, 55 (1988).  The collateral source rule usually serves to render evidence of litigation funding, for instance, inadmissible when it’s offered in an effort to reduce damages.  Id. at 56.  In Houston, however, Publix argued that the arrangement between Plaintiff, ML Healthcare, and non-party providers created a risk of bias on the part of the doctors, who receive referrals from ML Healthcare and who subsequently testify on behalf of the plaintiffs they have treated pursuant to those referrals.  If a doctor did not provide a favorable causation opinion – necessary to win the case – ML Healthcare likely would find other doctors who would.  Houston, 2018 U.S. App. LEXIS 2935, at *15.  Finding that such proffer, i.e. establishing bias, was distinctly non-substantive in nature, the Court held that, procedurally, an evidentiary purpose was served by the admission of the evidence, such that the collateral source rule would not prohibit the jury from hearing of ML Healthcare’s role in the litigation.

Much like the recent state court decision in WellStar Kennestone Hospital v. Roman, 2018 Ga. App. LEXIS 34 (Ga. App. Jan. 30, 2018), the 11th Circuit has now limited plaintiffs’ use of the collateral source rule to hide the interplay of non-parties’ financial gambling in litigation.  However, the Houston Court has taken it a step further than the Roman decision did.  Not only is evidence of litigation funding discoverable, it may also be admissible if an evidentiary purpose is served by its introduction.  The significance of this ruling cannot be overstated.  The Houston Court did decline to consider whether evidence of ML Healthcare’s contract rates could be used to attack the reasonableness of Plaintiff’s claimed damages, but the path has certainly been paved for the defense bar to make this argument in the future.  The Houston case discusses Alabama’s comparable collateral source rule and, in a footnote, mentions that recent legislative changes in Alabama now permit the introduction of evidence that a plaintiff’s medical bills have or will be paid.  Perhaps Georgia will one day follow suit.  I attended a seminar recently where we were encouraged to keep attacking these issues at the trial court level with the hope that eventually the Georgia legislature will come around.  If nothing else, perhaps decisions like Houston and Roman will discourage the ever rampant medico-legal loop driving personal injury litigation.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Permits Discovery of Non-Party Billing Rates

A small victory last week for the defense bar!  In the case of WellStar Kennestone Hospital v. Roman, 2018 Ga. App. LEXIS 34 (Ga. App. Jan. 30, 2018), the Court of Appeals affirmed a trial court decision refusing to modify a subpoena served on non-party WellStar.  Appellee Mario Roman was involved in a motor vehicle collision with Autumn McKinney.  As part of his discovery efforts, Roman served a subpoena on WellStar, seeking to depose WellStar regarding the rates for services provided to McKinney if said services were provided to “uninsured patients; to insured patients; to patients under workers compensation plans; to patients under Medicare or Medicaid plans; and to litigant and non-litigant patients.”  WellStar sought to modify the subpoena, arguing that such information was “not reasonably calculated to lead to the discovery of admissible evidence.”  The trial court disagreed with WellStar.

On appeal, the Court of Appeals affirmed.  Highlighting the trial court’s distinction between discoverable information and admissible information, the Court of Appeals agreed that there is no authority to support WellStar’s contention that the collateral source rule bars the discovery of medical rates and charges of third parties not involved in the subject litigation.  Noting the wide latitude given to make complete discovery possible, the Court reminded WellStar that its burden was to show more than that the materials or information sought would not themselves be admissible.  Deloitte Haskins & Sells v. Green, 187 Ga. App. 376, 379 (1988).

Practically speaking, this ruling is significant in the context of personal injury litigation, where inflated bills and litigation funding companies are becoming the norm rather than, heretofore, the exception.  As more and more plaintiffs get caught up in the medico-legal loop and become indebted to non-party providers, defense attorneys face inherently more difficulty in reaching reasonable settlement agreements.  However, if the Courts begin requiring providers to divulge non-party rate information, there’s hope that these excessive and usurious billing practices might be stopped.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Tennessee Supreme Court Holds That Full and Undiscounted Medical Bills may be Submitted as Proof of Reasonable Medical Expenses

The Tennessee Supreme Court has issued its long-awaited decision in the Dedmon v. Steelman case. This case has direct and significant consequences to personal injury litigation in Tennessee. In short, defendants may not argue that the amount actually received by a medical provider is the reasonable amount of a plaintiff’s medical bills.  Plaintiffs may submit undiscounted medical bills in full as proof of reasonable expenses.

The Tennessee Supreme Court granted an appeal in Dedmon to address whether its ruling in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) applies in personal injury cases. In West, the court held that a hospital’s reasonable charges under Tennessee’s hospital lien statute are the amount the hospital accepts from the patient’s private insurer, not the full amount of the medical bills sent to the patient.

The Supreme Court released its decision on November 17, 2017.  The court held that the collateral source rule applies to personal injury claims in which the collateral benefit at issue is private insurance. Consequently, plaintiffs may submit evidence of the injured party’s full, undiscounted medical bills as proof of reasonable expenses. Furthermore, defendants are precluded from submitting evidence of discounted rates accepted by medical providers from an insurer in order to rebut the plaintiff’s proof that the full, undiscounted charges are reasonable.

The court reasoned that to allow defendants to submit discounted rates would conflict with the collateral source rule. However, defendants remain free to submit any other competent evidence to rebut a plaintiff’s proof on the reasonableness of medical expenses, so long as that evidence does not conflict with the collateral source rule.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone