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 As a speaker referral, the attendee will be registered at an unpublished rate (not available online).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
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.
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).
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).
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.
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.
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.
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.
In a lengthy ruling covering many issues related to a trial, the Georgia Court of Appeals affirmed the exclusion of a doctor’s past substance abuse issues on the grounds of relevance. In the case of Doherty v. Brown, et al., issued on November 18, 2016, the Court addressed numerous issues arising out of a $22 million verdict against a pain physician and his practice group. The Plaintiff claimed that the doctor’s past substance abuse issues went to the question of “patient safety.” The doctor moved in limine and the trial court granted the motion. When Plaintiff attempted to bring it up at trial, the doctor objected and the trial court sustained the objection. On appeal, Plaintiff claimed the evidence should have been admitted. The Court disagreed, holding that the trial court properly exercised its discretion to exclude the evidence because there was no proof the doctor was impaired at the time of the surgery at issue.
The take-home is that the appellate courts have repeatedly held that evidence of a physician’s past substance use or abuse is not relevant to the issue of malpractice unless there is proof of impairment at the time of the incident.
On October 22, 2016, the FTC issued new guidance to all those subject to the HIPAA Privacy Rule, including “downstream” business associates. “Once you’ve drafted a HIPAA authorization, you can’t forget the FTC Act,” which prohibits deceptive or unfair acts or practices affecting commerce. According to the FTC, this includes the duty to avoid misleading others about what is happening with their health information. “Your business must consider all of your statements to consumers to make sure that, taken together, they don’t create a deceptive or misleading impression.” The FTC includes a “.com Disclosures report” for guidance on creating effective privacy practices disclosures. The FTC warns against inconsistent language in privacy practices disclosures and contradictions regarding when information may be displayed publicly.
Please click this link for more information: https://www.ftc.gov/system/files/documents/plain-language/pdf-0219_sharing-health-info-hipaa-ftcact.pdf
The Georgia Supreme Court reversed the Court of Appeals’ decision in the case of Yugueros v. Robles and remanded for review of whether a corporate representative was qualified to give standard of care testimony in a medical malpractice case. In Yugueros, the medical issue was whether a stat CT scan was needed after discharge from an emergency department. The post-abdominal surgery patient presented to the emergency department with pain. An x-ray was read as unremarkable, but with a recommendation for a CT scan. Dr. Yugueros was contacted after the pain worsened. Dr. Yugueros saw the patient, but did not order a CT scan.
During the litigation, plaintiff served a notice of deposition for a corporate representative (a “30b6 witness”). Dr. Yugueros’ partner was designated as the representative of the group. During the 30b6 deposition, the representative testified that Dr. Yugueros ordered a CT scan, when, in fact, she had not. The follow-up questions indicated that the representative considered ordering a CT scan part of the standard of care. Before trial, Dr. Yugueros and her group moved to exclude the 30b6 witness testimony because it was not based on facts in the record, consistent with the rules regarding expert witness testimony. Plaintiff opposed, and argued that it was an admission against interest. The trial court excluded the testimony and the Court of Appeals reversed because the testimony was not “expert” testimony but rather an admission against interest.
On certiorari, the Supreme Court reversed, holding that while depositions may be used by an adverse party “for any purpose,” that does not trump the rules regarding the admissibility of evidence, including the requirement that opinion testimony be based on facts. The Court sent the case back to the Court of Appeals for further review.
Take-home: the case is not yet decided. But, it demonstrates that deposition testimony must still meet other evidentiary thresholds before it becomes admissible into evidence.