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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Georgia Supreme Court Reverses on 30b6 Testimony

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.

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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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Georgia Court of Appeals Reverses for Exclusion of Affidavit

The Georgia Court of Appeals reversed a defense verdict on the grounds the trial court improperly “prohibited” a plaintiff from refreshing the recollection of a witness with an affidavit that was not disclosed in discovery.

Plaintiff alleged she suffered weakness in her legs, lost the ability to stand, and urinary incontinence following the second in a series of lower back injections performed by the defendant anesthesiologist. The second injection was performed on May 12. The anesthesiologist testified she assessed Plaintiff after the injection and there were no problems walking. The staff testified Plaintiff would not have been discharged if there were problems. On May 14, the anesthesiologist received a phone message from Plaintiff saying that her legs were “hardly working at all.” The anesthesiologist called Plaintiff, who said he was having spasms and pain, but did not mention other problems. The anesthesiologist testified she offered to see Plaintiff, among other things. Plaintiff disputed the anesthesiologist’s version of the events. Plaintiff testified that the anesthesiologist did not offer to see her and that she could not recall whether she told her about the urinary issues. On May 18, Plaintiff went to an orthopedist, who operated on her.

The key issue was the testimony of a fact witness doctor who employed the anesthesiologist, Dr. Gadlage. Plaintiff disclosed Dr. Gadlage’s name in interrogatory responses, but did not identify an affidavit she had obtained from Dr. Gadlage about a key phone conversation around May 14. It appears Plaintiff obtained the affidavit after responding to discovery initially, but did not supplement the discovery responses. Dr. Gadlage was listed in the pretrial order as a witness, but Plaintiff’s counsel told defense counsel that Dr. Gadlage was only a “character witness,” and would not be called on standard of care. Defendant did not depose Dr. Gadlage.

Dr. Gadlage testified at trial that he remembered talking with Plaintiff about pain, possibly weakness. He could not remember Plaintiff talking about the inability to walk or urinary incontinence. Plaintiff then sought to use the affidavit, presenting it for the first time. The defense objected. Plaintiff conceded at a sidebar that she had not disclosed the affidavit, believing it to be work product. The trial court prevented Plaintiff from using the affidavit, even to refresh Dr. Gadlage’s recollection. The defense won.

The Court of Appeals reversed, holding that prohibition of the use of the affidavit was legal error. Rather, the trial court should have continued the case, declared a mistrial, or allowed the defense to review the affidavit and take a deposition, if needed. The Court recognized that Plaintiff “acted purposefully” in failing to disclose the affidavit, but concluded that Dr. Gadlage was a known witness and that exclusion or prohibition was not the appropriate remedy.

The case is Anglin, et al. v. Smith, A16A1405 (October 12, 2016).

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Court of Appeals Carefully Distinguishes Medical Malpractice From Ordinary Negligence In Case Resulting In Wrongful Arrest

After writing a prescription for 120 pills of hydrocodone, Tami Carter’s doctor decided to change the quantity from 120 to 180.

When she took the prescription to Walgreens, an employee assumed that Ms. Carter altered the prescription and called her doctor’s office to verify the prescription. The on-call physician, a different person than the prescribing doctor, was not aware of the change and did not verify if his partner had done so.

When Ms. Carter returned to Walgreens, she was arrested on the spot.

She filed two claims: one against the prescribing physician for altering the prescription rather than writing a new one; the other against the medical practice for failing to verify the change.

The Court of Appeals dismissed the claim against her doctor, finding that the claim called into question his professional judgment in altering the quantity of pills prescribed, and that Ms. Carter did not attach an expert affidavit to her complaint as required in Georgia for a medical malpractice case.  The Court reiterated that “[the] resolution of whether an act or omission sounds in simple negligence or medical malpractice depends on whether the conduct…involved a medical judgment.”  Her claim against the practice, on the other hand, did not suffer the same fate.

The Court found that failing to make an effort to verify the prescription, or having a procedure in place to do so, did not involve professional skill or judgment.  Thus her claim against the practice was permitted to go forward.

There have been a number of cases involving the distinction between ordinary negligence and medical malpractice recently.  While hospitals and many large medical groups have in-house counsel to help guide and counsel practice procedures in order to avoid these types of cases from ever arising, most of the smaller medical practices do not have that luxury. It would be wise to pay attention to these types of decisions as they come out as they tend to be very fact-intensive, and can help prevent avoidable claims against the practice.

*The case is Carter v. Cornwell, 2016 Ga. App. LEXIS 528 (Sept. 21, 2016).

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