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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Georgia Court of Appeals Tosses Hospital Claim on Deficient Affidavit

In Ziglar v. St. Joseph’s Cander Health System, the Georgia Court of Appeals affirmed the dismissal of a claim against a hospital due to a deficient expert affidavit. Plaintiff alleged he arrived at the hospital unconscious and developed a stage IV pressure ulcer during his stay. In his complaint, Plaintiff alleged that the hospital, nursing staff, and support staff, failed to assess properly and treat the ulcer and failed to advocate for him while he was unconscious.

With the Complaint, Plaintiff filed an affidavit of an expert nurse. The hospital answered and filed a motion to dismiss under Section 9-11-9.1 based on the failure to set forth at least one negligent act or omission and the factual basis for the allegation. According to the opinion, the following was the salient paragraph from the affidavit:

“Based on my review of the above-described medical records, it is my opinion within a reasonable degree [*3]  of medical probability that the staff of St. Joseph’s Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat Jason Keith Ziglar’s wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.”

The Court held that this paragraph and the rest of the affidavit were deficient because the affidavit did not specify discrete instances of alleged “failure to . . . treat, assess, and advocate.” Likewise, the affidavit did not include any factual basis, such as dates and times. Plaintiff attempted to argue that the case was really one for simple negligence, but the Court disagreed.

The take-home of this case is that challenges to the sufficiency of an expert affidavit are case specific. This opinion does give some credence to the idea that a plaintiff has to set forth some specifics to state a claim.

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Georgia Court of Appeals Affirms Verdict in Death of Child Born Prematurely

The Georgia Court of Appeals has affirmed a verdict in favor of the parents arising out of the death of a child born prematurely. In the case of Central Ga. Women’s Health Center v. Dean, Plaintiffs alleged that Dr. Henry Davis and Central Georgia Women’s Health Center were liable for failure to diagnose an incompetent cervix, leading to the premature delivery and death of their child. The jury returned a verdict of $4.5 million, but apportioned 50% of the fault to Dr. Davis. Defendants sought a directed verdict on causation and a motion in limine on Dr. Davis’ post-operative documentation. After verdict, the defendants sought JNOV, which was denied. The Court of Appeals affirmed.

Mrs. Dean became a patient of CGWHC at 6 weeks pregnant. She gave a history of two prior miscarriages and a loop electrosurgical excision procedure (LEEP), which put her at risk for an incompetent cervix. The first obstetrical provider ordered frequent ultrasounds throughout the pregnancy. At 22 weeks, an ultrasound showed a shortened cervical length and Ms. Dean was told to rest. Six days later, Mrs. Dean began to experience thick, dark vaginal discharge. She and her husband went to the emergency department at a local hospital. Along the way, they spoke with Dr. Davis and told him about Mrs. Dean’s history and the recent ultrasound. Dr. Davis told the Deans that the discharge was probably old blood and that the hospital would likely send them home. The Deans proceeded to the hospital, where she was examined by a nurse. The nurse called Dr. Davis, but he did not come to the hospital.

After discharge, Mrs. Dean continued to be symptomatic. In the early morning hours of the day after discharge, Mrs. Dean again called Dr. Davis to report the worsening symptoms. Dr. Davis asked Mrs. Dean to come to the office for a scheduled visit at 9:00 am. Mrs. Dean kept the appointment and was seen by a different provider, who recommended that Mrs. Dean see a maternal-fetal specialist that day. In between, Mrs. Dean was sent to the labor and delivery department at the hospital for complaints of increased pain. Mrs. Dean then went into premature labor and delivered the child at 23 weeks. The child then passed away due to extreme prematurity.

After delivery, Dr. Davis wrote two post-delivery notes about examining Mrs. Dean in the hospital. Mrs. Dean denied that Dr. Davis visited on the first day and Mr. Dean testified that a different provider was in the room that day. Dr. Davis later struck through the note to indicate it was written in error, indicating that Mrs. Dean was not in the room. The Deans testified they were in the room and a nursing note indicated they were. Dr. Davis also documented another note of an exam, which Mrs. Dean denied happened.

Causation – the question was whether Plaintiffs proved causation to a reasonable degree of medical probability. Plaintiffs’ expert testified that a “stitch would have saved this pregnancy” and resulted in a 2-4% better chance of survival each day the baby stayed in the womb. The Court held that despite some waffling by the expert, the inferences to be drawn were enough to survive directed verdict.

Motion in Limine – the Court held the trial court was within its discretion to allow cross-examination of Dr. Davis about the post-operative notes as indicative of his capacity to tell the truth under Rule 608. The Court held that the jury could determine whether Dr. Davis’s note “involved in deliberate deception rather than a simple mistake.”

The take-home from this case is that claimants can prove causation by multiple data points, not just single sentences from an expert witness. This is the prevailing trend on causation per the Court of Appeals, so causation attacks must address all of the data points, not just weak witness opinions.

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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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