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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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.

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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.

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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.

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Georgia Court of Appeals Reinstates Claims Against Corporate Psychiatric Providers

The Georgia Court of Appeals has reversed the dismissal of certain counts of a third renewal complaint against two corporate psychiatric services providers. In Curles v. Psychiatric Solutions, the Court held that Plaintiffs had stated claims for negligence per se and ordinary negligence, not professional negligence, and that those claims related back to an original complaint for purposes of statutes of limitation and repose.

Plaintiffs are the estates and wrongful death claimants of two people killed by Amy Kern, a patient at a private psychiatric facility. Ms. Kern had been committed involuntarily to the facility on three occasions for psychotic episodes and violent tendencies. Twelve days after her last discharge, she killed her grandmother and her grandmother’s boyfriend.

Plaintiffs filed an original complaint against the corporate defendants and individual providers, alleging breach of the duty to exercise reasonable care to control Amy, consistent with the Bradley Center case. They also filed an expert affidavit. Plaintiffs dismissed the corporate defendants from the original complaint without prejudice. Plaintiffs then filed a “renewal complaint” against the corporate defendants with the same allegations and moved to consolidate the “renewal complaint” with the original complaint. The trial court granted the motion and added the corporate defendants back to the case. Plaintiffs then filed second and third amended complaints, which the corporate defendants moved to dismiss.

In the first part of the decision, the Court of Appeals held that Plaintiffs stated a claim against the corporate defendants for negligence per se based on the statutes requiring notice of discharge following involuntary commitment. The Court also held that Plaintiffs stated a claim for ordinary negligence against the corporate defendants because they alleged the decision to discharge Ms. Kern was based on the fact her insurance had run out, not on professional judgment.

In ruling the claim was viable under the Bradley Center/control test, the Court held that although Bradley Center involved specific threats against specific people, the control principle is not so limited. Rather, the duty to control is to protect third parties generally, not specific third parties only. The Court re-emphasized the underlying principle that knowledge of threats generally is the key element in a case based on Bradley Center, distinguishing the Baldwin v. Hosp. Auth. of Fulton County case in which there was no evidence of actual or threatened harm prior to discharge. Lastly, the Court held that the non-professional malpractice claims were similar enough to the allegations in the original complaint, such that they would relate back.

The take-home messages are (1) allegations of ordinary negligence or negligence per se will relate back, (2) dropped defendants can be added back into a case, and (3) a control claim under Bradley Center can be brought by injured third parties generally and is not limited to specific third parties targeted by the injuring party.

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Georgia Court of Appeals Affirms Summary Judgment in Misfilled Prescription Case

The Georgia Court of Appeals affirmed summary judgment in favor of a pharmacy provider on claims of professional negligence arising out of a misfilled prescription. In the case of Roberts v. Quick Rx, Mr. Roberts’ wife went to the pharmacy to pick up his prescriptions. The cashier handed Ms. Roberts two filled bottles through a drive-through window. However, the bottles were for a different patient and for different medications.

The following day, Ms. Bryant administered the medication to her husband, who was suffering from Alzheimer’s disease, diabetes, and high blood pressure. A little while later, she heard him call her name. She found her husband on the floor, confused. There was nothing in the area that would have caused him to fall. She called an ambulance and he was taken to the hospital for emergency surgery for a broken hip. The prescription error was later discovered and Plaintiffs sued Quick Rx for professional negligence, simple negligence, and punitive damages. The trial court granted summary judgment on the professional negligence and punitive damages claims.

Regarding the medical malpractice claim, Plaintiffs’ pharmacy expert testified the standard of care required a pharmacist or their delegate to counsel the person picking up the medication about the medication and to match the patient with the prescription. This is part of a Georgia regulation. However, the expert did not rely on any facts to show this was not done or that it was not done by the pharmacist or their delegate. Accordingly, the trial court did not err in granting summary judgment.

The Court held that the cashier’s failure to give the correct prescription to Ms. Bryant was a jury question on simple negligence. But, the same claim would not support a claim for punitive damages, so summary judgment was affirmed.

Quick Rx cross-appealed, claiming there was no evidence of causation to support Plaintiffs’ claims that the fall made Mr. Bryant develop Alzheimer’s or made it worse. In response, Plaintiffs argued they were not making such a claim, but Ms. Bryant actually testified to it and they did not affirmatively state in response to summary judgment that they were not seeking that as an item of damages.  The Court affirmed the trial court’s grant of summary judgment on the issue.

Lastly, Quick Rx claimed Plaintiffs’ causation expert did not provide a scientific basis for his opinion that the administration of the misfilled medication caused the fall. The trial court denied the motion and the Court of Appeals affirmed, holding that the expert had sufficient facts and a reasonable scientific basis for his opinions.

 

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Georgia Court of Appeals Affirms that Partner in Medical Practice is Not an Expert Witness

The Georgia Court of Appeals has held that a partner in a medical practice group, called as a corporate witness under Rule 30(b)(6), is not an “expert witness” such that their opinion testimony is automatically admissible into evidence. In Yugeros v. Robles, the plaintiff alleged that Dr. Yugeros failed to diagnose and treat a complication of plastic surgery. When the patient presented to the hospital, Dr. Yugeros did a workup, but did not order a CT scan.

During the lawsuit, Plaintiffs took the deposition of Dr. Yugeros’ partner, Dr. Alexander, as the corporate representative of the practice group pursuant to Rule 30(b)(6). During her deposition, Dr. Alexander testified the standard of care would be to order a CT scan. Plaintiffs asked for the representative familiar with the records to testify. However, Dr. Alexander had not realized Dr. Yugeros did not order a CT scan.

Prior to trial, Dr. Yugeros moved to exclude Dr. Alexander’s testimony. The trial court granted the motion. After going up to the Supreme Court, the Court of Appeals held the trial court did not abuse its discretion in excluding the testimony because Plaintiffs failed to show that Dr. Alexander was qualified as an expert to opine on the standard of care.  The reasoning was that, although Dr. Alexander was a corporate representative, to be admissible, her testimony still had to be otherwise admissible. Since standard of care testimony is expert testimony, the Plaintiffs bore the burden of qualifying her and they didn’t do so.

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Georgia Court of Appeals Denies Motion to Dismiss in Gross Negligence Case

The Georgia Court of Appeals has affirmed the trial court’s denial of a motion to dismiss a complaint against an emergency physician in the case of Graham v. Reynolds. Plaintiffs claimed Dr. Graham, an emergency physician, failed to diagnose an acute coronary syndrome on presentation to an emergency department. Dr. Graham discharged the patient, who then suffered a massive heart attack and died.

Plaintiffs attached to their complaint the affidavit of a cardiologist specializing in electrophysiology. Dr. Graham moved to dismiss on the grounds that the affidavit expert was not qualified and because the affidavit did not opine on gross negligence. The trial court denied the motion.

The Court of Appeals affirmed, holding that plaintiff’s affidavit expert was not disqualified solely because he is a cardiologist and not an emergency physician. The Court held that the affiant demonstrated sufficient knowledge in the area of diagnosing a heart attack on EKG to survive a motion to dismiss.

The Court also rejected the contention that the affidavit was deficient because it did not contain facts showing gross negligence. The Court held that Section 9-11-9.1 only requires the affidavit set forth a negligent act or omission, which is a pleading required. Section 51-1-29.5, on the other hand, sets forth an evidentiary requirement, not a pleading requirement.

The take-home message is that it remains difficult to challenge an expert affidavit at the motion to dismiss phase.

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Expect an Uptick in the Number of Lawsuits Being Filed Within the Next Year

Medical malpractice insurance carriers, defense lawyers and the doctors they work with can expect an uptick in the number of lawsuits being filed within the next year alleging our doctors negligently prescribed OxyContin and other opioids or failed to counsel patients appropriately to prevent their addiction. With the Attorneys General of several states suing the companies which sell these opioids and the president declaring a national emergency due to the rising rate of opioid addiction, we can expect plaintiff’s lawyers to take notice. Class actions against the pharmaceutical companies are already brewing and spin off malpractice litigation is inevitable.

Our pain management doctors are most vulnerable to these claims given the volume of patients to whom they prescribe but they generally have better procedures in place with respect to opioid prescriptions since they have been cracked down on by most state medical boards over the last few years. It is the occasional prescriber who may be least prepared to defend these allegations. They are more often criticized for failing to refer patients to a pain management specialist.

Juries may now view these cases with slightly more sympathy for the plaintiffs given that the media is  stressing the “inevitable” addiction associated with opioid use. We must adjust to this change in perception and perhaps alter the way we defend these cases at trial.

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Georgia Court of Appeals Reversed the Grant of Summary Judgment to a Physician Group

The Georgia Court of Appeals reversed the grant of summary judgment to a physician group, holding that the liberal pleading rule does not require a plaintiff to name each individual provider for whom a named physician group may be liable. Plaintiff filed a wrongful death case against two named doctors, among others, including 24 On Physicians, PC (“24 On”).

Plaintiff dismissed and refiled under the renewal statute, naming the same two doctors and named their practice group on a theory of vicarious liability. The renewal complaint included a general allegation that “physicians” and other actual or ostensible agents of the group contributed to the death.

Initially, the group moved to dismiss on the grounds the expert affidavit did not specifically mention the group. Plaintiff filed an amended affidavit in response. Plaintiff then filed another affidavit, which broadened the claim against the group to include unnamed physicians, employees, and agents.

The group then moved for summary judgment on claims of vicarious liability for anyone other than the original named physicians based on expiration of the statute of limitations. The trial court granted the motion. The Court of Appeals reversed, holding that Plaintiff “was not required to specifically name each physician for which 24 On was allegedly responsible in the renewal complaint.” Rather, Georgia law only requires a pleading set forth a short and plain statement of the claims. The Court then held that the renewal complaint controlled the statute of limitations question and that the expert affidavit only needed to set forth one act or omission claimed to exist. Lastly, the Court distinguished the Thomas v. MCCG case, holding that the “alleged negligence of the “treating physicians” who were agents or employees of 24 On was contemplated in the renewal complaint.”

The case is Oller v. Rockdale Hospital, 2017 Ga.App. LEXIS 383 (August 14, 2017).

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Georgia Supreme Court Rules Trial Court May Exclude Intentionally Withheld Surprise Witness

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Resurgens, P.C. et al. v. Elliott, decided May 30, 2017, and determined that the trial court did not abuse its discretion when it excluded a rebuttal witness, as a discovery sanction, whose name was deliberately withheld during discovery.  Plaintiff was a patient of the Defendants, and filed suit in 2011 claiming that the Defendants failed to timely diagnose and treat an abscess in his thoracic spinal cord which resulted in paralysis.  Following four years of discovery, the case went to trial and resulted in a defense verdict.  The Plaintiff filed a direct appeal which challenged the trial court’s exclusion of a rebuttal witness in the case.

At trial, a Defendant, who was the treating physician, was asked by the Plaintiff’s attorney whether the Defendant was at the bedside of the Plaintiff at a particular time.  The Defendant denied being present.  The Plaintiff then excused the Defendant, and called a rebuttal witness who was a nurse that would purportedly testify that the Defendant was in fact bedside.  Defendant’s counsel objected, based on the fact that the witness had not been previously disclosed in discovery, the pretrial order, or in any communication between counsel.  Plaintiff counsel argued that this particular witness fell within its interrogatory response “catch-all,” that she was a “treating medical provider…a person named in the medical records…and an impeachment witness.”  Therefore, while she was not specifically named, she was referenced.  Furthermore, if the discovery response was not clear enough, the onus was on the defense to request clarity or move the Court to compel a different response.  The trial court ruled in favor of the Defendants, stating that the Plaintiff had determined to call the nurse as a witness before trial and intentionally withheld the witness’s name.  As such, the Defendants were entitled to the discovery sanction of excluding the witness in order to “allow the trial to proceed without surprise, without ambush.”  The Plaintiff appealed to the Georgia Court of Appeals who reversed the trial court.

The Court of Appeals stated that in the event a previously undisclosed witness is called to testify, the only remedy is to move for a postponement for a sufficient length of time to allow the objecting party to prepare, or to move for a mistrial.  The Court of Appeals further stated that it is never appropriate for a trial court to exclude such a witness, even in cases where there was clear deception.  The exclusion of a witness with probative value was an extreme response, and the discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) are not available.  The Defendants applied for certiorari to the Supreme Court of Georgia who granted review.

The Supreme Court reversed the Court of Appeals.  The Court held that when a party provides false or deliberately misleading discovery responses, the aggrieved party is entitled to more than mere postponement or mistrial.  The aggrieved party is entitled to discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) which includes, among others, exclusion of a witness.  The Court explained that a party who receives a substantive answer to a discovery request is entitled to believe that answer, and are not required to file blind motions to compel in hope of discovering the opposing party’s deception.   Furthermore, false or intentionally misleading responses are worse than a failure respond, because the aggrieved party may never learn that it failed to receive the truth.  Therefore, the aggrieved party should be entitled to discovery sanctions, including exclusion of the undisclosed witness.  To allow otherwise, simply because the witness may offer some probative value, would encourage and reward deceptive behavior.

The take-home is that parties who face deceptive tactics by opposing counsel during trial are no longer confronted with the only options being a continuance or a mistrial, which are burdensome and expensive.  There are now a severe repercussions for those attorneys who intentionally deceive opposing parties during discovery.

Further take-home is found in footnote 10 of the opinion, where the Supreme Court stated “[we] caution the bench and bar against relying on such “catch-all” categories in this manner; candor and cooperation, as opposed to “gotcha” moments and gamesmanship, should be encouraged between litigating parties.”  What is clear now for plaintiff and defense counsel in Georgia is that routine discovery responses such as, “any medical provider named in the medical records,” may no longer be sufficient once trial has begun.  Parties should take the time to list the individual names of potential witnesses and other evidence well before trial or risk their exclusion

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