Georgia Supreme Court Reverses Trial Court for Wrongly Giving an Ordinary Negligence Charge in a Medical Malpractice Case

On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.  On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.

On September 16, 2008, patient Ms. Brown had an epidural steroid injection administered by an anesthesiologist at a surgery center.  Ms. Brown was given the sedative Propofol prior to the procedure.  Her blood oxygen level was 100 percent when the procedure began.

Shortly after the procedure began, a pulse oximeter used to monitor the patient’s blood oxygen level sounded an alarm, indicating a drop in Ms. Brown’s oxygen in her blood.  Technicians and nurses in the room made efforts to increase the oxygen level.   The anesthesiologist stated that the machine was malfunctioning and that Ms. Brown’s true oxygen saturation level and breathing was fine.

Ms. Brown failed to resuscitate following the procedure, and EMTs responded to the practice’s 911 call for help.  The anesthesiologist told Ms. Brown’s daughter-in-law and the physician who admitted her to the hospital that the procedure had gone fine and Ms. Brown was simply having complications coming out of the anesthesia.  The anesthesiologist gave no indication that Ms. Brown might have experienced respiratory complications during the procedure.

Plaintiff’s counsel asserted both medical malpractice and ordinary negligence claims, including that the anesthesiologist improperly administered Propofol without positioning another anesthetist at the head of the table, failed to respond appropriately when the patient experienced respiratory distress and failed to contact emergency medical services promptly.

The trial judge charged the jury on both ordinary negligence and medical malpractice.

The Court of Appeals had concluded that the trial court charged correctly on ordinary negligence because a lay person would not need expert testimony to understand the meaning of data provided by pulse oximeters and blood pressure monitors and how best to respond to that information in the midst of a medical procedure.

The Georgia Supreme Court accepted certiorari and framed the issues as:  1) whether the trial court’s instruction on ordinary negligence was proper, and 2) if not, whether that error was harmful to the defendants.  The Supreme Court concluded that the ordinary negligence charge was improper and harmful to the defendants, ordering a retrial.    The Supreme Court disagreed with the Court of Appeals’ finding that responding to medical data from medical devices did not require medical judgment.

The case is Southeastern Pain Specialists, P.C. v. Brown, et al., Georgia Supreme Court No. S17G0733, decided March 5, 2018.

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Georgia Court of Appeals Affirms Summary Judgment in Misfilled Prescription Case

The Georgia Court of Appeals affirmed summary judgment in favor of a pharmacy provider on claims of professional negligence arising out of a misfilled prescription. In the case of Roberts v. Quick Rx, Mr. Roberts’ wife went to the pharmacy to pick up his prescriptions. The cashier handed Ms. Roberts two filled bottles through a drive-through window. However, the bottles were for a different patient and for different medications.

The following day, Ms. Bryant administered the medication to her husband, who was suffering from Alzheimer’s disease, diabetes, and high blood pressure. A little while later, she heard him call her name. She found her husband on the floor, confused. There was nothing in the area that would have caused him to fall. She called an ambulance and he was taken to the hospital for emergency surgery for a broken hip. The prescription error was later discovered and Plaintiffs sued Quick Rx for professional negligence, simple negligence, and punitive damages. The trial court granted summary judgment on the professional negligence and punitive damages claims.

Regarding the medical malpractice claim, Plaintiffs’ pharmacy expert testified the standard of care required a pharmacist or their delegate to counsel the person picking up the medication about the medication and to match the patient with the prescription. This is part of a Georgia regulation. However, the expert did not rely on any facts to show this was not done or that it was not done by the pharmacist or their delegate. Accordingly, the trial court did not err in granting summary judgment.

The Court held that the cashier’s failure to give the correct prescription to Ms. Bryant was a jury question on simple negligence. But, the same claim would not support a claim for punitive damages, so summary judgment was affirmed.

Quick Rx cross-appealed, claiming there was no evidence of causation to support Plaintiffs’ claims that the fall made Mr. Bryant develop Alzheimer’s or made it worse. In response, Plaintiffs argued they were not making such a claim, but Ms. Bryant actually testified to it and they did not affirmatively state in response to summary judgment that they were not seeking that as an item of damages.  The Court affirmed the trial court’s grant of summary judgment on the issue.

Lastly, Quick Rx claimed Plaintiffs’ causation expert did not provide a scientific basis for his opinion that the administration of the misfilled medication caused the fall. The trial court denied the motion and the Court of Appeals affirmed, holding that the expert had sufficient facts and a reasonable scientific basis for his opinions.

 

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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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