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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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 Holds that Fall from Wheelchair is Ordinary Negligence

The Georgia Court of Appeals has held that a claim against a hospital for the negligence of a nurse involving the fall of a patient from a wheelchair is not a claim that requires an expert affidavit. Plaintiff is an elderly patient who used a cane to walk. Seeing the patient struggle, a nurse offered the patient a wheelchair for transport in the hospital. After moving the patient through the treatment area without incident, the nurse wheeled the patient back to the waiting room. Along the way, they encountered a door through which the wheelchair would not fit. The patient lifted out of the wheelchair but their pants leg got caught on the foot pedals. The patient fell and was injured.

Plaintiff filed the suit without an expert affidavit, claiming ordinary negligence. The trial court granted summary judgment to the hospital. The Court of Appeals reversed, holding that the record did not demonstrate that only medical people could transport the patient with a wheelchair. Similarly, the record showed that the nurse failed to follow the manufacturer’s instructions, forming the basis for the ordinary negligence claim.

As an aside, in a footnote, the Court noted that the hospital moved for a setoff of the patient’s medical bills for sums not charged or which the hospital paid for the patient. The Court declined to rule on that part of the appeal because the trial court did not rule on it.

The case is Byrom v. Douglas Hosp., 2016 Ga. App. LEXIS 543 (Oct. 4, 2016).

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