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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Georgia Court of Appeals Vacates Ruling that Nursing Home Arbitration Agreement Invalid

The Georgia Court of Appeals recently vacated a lower court ruling that a nursing home resident lacked capacity to enter into an agreement to arbitrate her disputes. The Court did not reverse the trial court, but rather sent the case back to the trial court for more hearings, concluding the trial court used the wrong standard and shifted the burden of proof when ruling on the motion to compel arbitration.

The patient was living home alone when she fell. After surgery, she was admitted to the nursing home. On admission, the patient had a number of chronic medical conditions and a “history of some cognitive impairments.” The month before she fell, she had two visits to the emergency department for feeling “loopy and out of sorts, with some memory loss.” On neurological exam, she was noted to have mild cognitive impairment, depression, and amnesia. But, on admission to the hospital, she was able to give treatment consent.

On admission to the nursing home, she was taking narcotic pain medication. After admission, she was assessed as having episodes of confusion, forgetfulness, anxiety, and other cognitive deficits. The patient passed away and her family and estate sued the nursing home. The nursing home moved to compel arbitration based on the patient’s election to arbitrate in the admission agreement. In ruling on the motion, the trial court used a summary judgment standard and ruled that the nursing home bore the burden of proving the absence of evidence for the plaintiffs’ claims that the patient lacked capacity. In other words, the trial court required the nursing home to point out that the plaintiffs couldn’t prove the negative.

The Court of Appeals concluded the trial court used the wrong legal standard. The law in Georgia is that a party may seek an order compelling arbitration and the trial court shall “summarily hear and determine the issue.” O.C.G.A. §9-9-6 (a). The law governing contract formation applies, which means the issues are generally for the court to determine as a matter of law, as opposed to determining whether there are issues of fact for a jury to consider, like on summary judgment. In this case, the nursing home produced a valid, signed arbitration agreement. Thus, the burden of proof shifted to the plaintiffs to prove that the patient was not competent when she signed it, as opposed to requiring the defense to show that the plaintiff did not have evidence to support their claim.

The case is Kindred Nursing Centers v. Chrzanowski, __ S.E.2d ___ (Ga.Ct.App. September 28, 2016). The panel deciding the case was Presiding Judge Yvette Miller and Judges Christopher McFadden and Carla Wong McMillan.

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Georgia Court of Appeals Distinguishes Professional and Ordinary Negligence

In the case of Carter v. Cornwell, 2016 Ga. App. LEXIS 523 (September 21, 2016), the Georgia Court of Appeals affirmed the dismissal of a doctor for Plaintiff’s failure to file an expert affidavit, but reversed regarding the doctor’s practice group.  Carter was a longtime patient of Dr. Cornwell and his practice group. Dr. Cornwell wrote a prescription for Ms. Carter for 120 pills of hydrocodone. Before Ms. Carter left the office, Dr. Cornwell changed the number of pills to 180 on the same prescription.

Ms. Carter then went to fill the prescription at the local pharmacy. The pharmacy saw the altered prescription and then called Dr. Cornwell’s office. The on-call doctor covering for Dr. Cornwell did not know that Dr. Cornwell changed the prescription and did not call Dr. Cornwell for guidance. Ms. Carter was then arrested for altering a prescription to obtain a controlled substance.

Ms. Carter sued Dr. Cornwell and the practice group, but did not file an expert affidavit. Dr. Cornwell and the group moved to dismiss and the trial court granted the motion. The Court of Appeals affirmed the dismissal of Dr. Cornwell, holding that he was exercising professional judgment when he decided to change the number of pills and, by extension, the dosage, for Ms. Carter. Plaintiff argued that the decision to change the dosage may have been professional discretion (and therefore requiring an affidavit), but the act of altering the prescription was “administrative,” not professional. The Court of Appeals disagreed, concluding that the entire act fell within the scope of professional duties that require an expert affidavit.

As to the group, however, the Court of Appeals reversed. The Court held that the claims against the practice for failure to handle the on call responsibilities properly was not an act of “professional judgment or skill” because the question was one of simply verifying whether the patient was in possession of a lawful prescription.

Bottom-line – claims or ordinary, simple, and administrative negligence are surfacing frequently in cases and the rules about what is and is not a claim requiring an affidavit sometimes appear to be made on a case-by-case basis.

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Georgia Court of Appeals Writes “The law . . . is at this moment crystal clear”

In a recent Georgia Court of Appeals decision, the Georgia Court of Appeals wrote in a footnote that the “law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear.” In the case of McKuhen v. TransformHealthRX, Inc., 2016 Ga.App. LEXIS 458 (Ga.Ct.App. July 15, 2016), the Court, led by Presiding Judge Yvette Miller, wrote this in response to the malpractice defendant’s challenge to the qualifications of plaintiff’s expert.

The case involved charges of malpractice and deliberate indifference at a jail. Plaintiff’s expert submitted an affidavit in support of the complaint in which he recited that he had been in the active practice for three of the five years leading up to the incident, ostensibly in compliance with Georgia law. The defense moved to dismiss and, alternatively, for summary judgment, challenging the claim. The expert submitted a supplemental affidavit, in which he claimed to have actively practiced. In his deposition, however, he explained that his active practice and teaching experience did not include the specific issue in the case – monitoring and treatment of someone withdrawing from alcohol.

The Court of Appeals affirmed the trial court’s ruling that the expert was not qualified under an abuse of discretion standard. In a footnote, the Court wrote:

“The law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear. One set of rules applies when the expert’s competency is challenged and a hearing is held; a different set of rules governs the trial court’s evaluation of the affidavit when the expert’s competency is challenged and no hearing is held. Similarly, the standard of appellate review differs depending on whether the trial court had a hearing on the issue of the expert’s competency. It is irrelevant whether or not evidence was offered at the hearing. If there is a hearing on the expert’s competence, the trial judge weighs the evidence in the plaintiff’s witness’s affidavit, or in the competing affidavits, and decides whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of [OCGA § 24-7-702 (c)]. When such a hearing has taken place, the trial court’s decision is reviewed on appeal for abuse of discretion.”

In other words, the Court firmly concluded that the standard of review of the decision to exclude expert testimony is the highly deferential “abuse of discretion” standard, as opposed to the “de novo” standard used for summary judgment, which involves the Court examining all of the evidence and reaching its own conclusions.

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