Georgia Court of Appeals Affirms Exclusion of Doctor’s Substance Abuse

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.

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Georgia Court of Appeals Substitutes One Doctor for Another in Malpractice Suit

In the case of Hospital Specialists of Georgia, Inc. v. Gray, October 27, 2016, the Georgia Court of Appeals held that the trial court properly denied summary judgment to a practice group based on “substitution” of a second doctor after expiration of the statute of limitations, limiting the case of Thomas v. Medical Center of Central Georgia.

Plaintiff Gray’s wife died after developing ARDS. Plaintiff sued Hospital Specialists of Georgia (“HSG”). Plaintiff alleged that Dr. Garrison was an employee or agent of HSG and that he was negligent and caused his wife’s death. Counsel for HSG met with Dr. Garrison shortly after the complaint was filed and determined that Dr. Ellis had treated Ms. Gray, not Dr. Garrison. The appellate decision is light on facts, so it is not clear whether this was disclosed in discovery or not.

Over three and a half years after the death and 1.5 years after expiration of the statute of limitations, HSG moved for summary judgment on the grounds there was no evidence Dr. Garrison caused Ms. Gray’s death. Plaintiff then amended the complaint “to clarify” that Dr. Ellis was the doctor for whom HSG was vicariously liable. HSG moved for summary judgment on this claim as well, claiming expiration of the statute of limitations and relying on Thomas v. Medical Center of Central Georgia.

The Court of Appeals held that Plaintiff “simply corrected a misnomer” and that the claims against Dr. Ellis were exactly the same as the claims against Dr. Garrison, as distinguished from the Thomas case. The Court reasoned that there was no surprise to HSG and that Plaintiff properly submitted an amended affidavit with opinions against Dr. Ellis.

This decision stands out from other appellate decisions regarding “misnomers,” which has historically been used to correct the wrong name for the right person, as opposed to substituting one person for another. The Court did not address the statute of limitations argument in the decision.

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ACOG Issues Committee Opinion Regarding Refusal of Recommended Treatment

What happens when a pregnant woman refuses treatment that a provider believes is beneficial to both her and the fetus? The American College of Obstetricians and Gynecologists just issued a new Committee Opinion on just this topic (ACOG No. 664). According to ACOG, the committee opinion was necessary to address the balance between the provider’s “ethical obligation to safeguard the pregnant woman’s autonomy” and the “ethical desire to optimize the health of the fetus.” In the Opinion, ACOG opposes “forced compliance,” which it defines as “the alternative to respecting violations of bodily integrity, power differentials, and gender equality.”

The Committee opined that, in general, a pregnant woman has the right to refuse treatment, even if that treatment is needed to maintain life. The Committee encourages providers to engage in active dispute resolution when the woman refuses treatment, including “eliciting the patient’s reasoning, lived experience, and values.” The Committee warns against providers evoking “conscience as a justification to attempt to coerce a patient into accepting care that she does not desire.”

The Committee Opinion appears to be part of a larger movement related to patient autonomy, recognition of a category known as “obstetric violence,” and updating the Hippocratic charge for the provider for the modern age.

Partner Eric Frisch is speaking on this topic at the ACI Conference on Obstetrics and Gynecology legal issues on June 22-23 in Philadelphia.

Click here for more information.

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