Eric Frisch to Present at the ACI Obstetric Malpractice Claims Conference

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 As a speaker referral, the attendee will be registered at an unpublished rate (not available online).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
Email: e.ro@americanconference.com

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.

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Georgia Court of Appeals Affirms Summary Judgment on Causation

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).

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Georgia Court of Appeals Remands for Further Finding on Hospital-Doctor Agency Issue

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.

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Georgia Court of Appeals Holds that Expert Not Required for Proximate Cause in Med Mal Case

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.

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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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FTC Issues New Guidance on HIPAA and FTC Act

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

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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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