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.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

Georgia Court of Appeals Reinstates Claims Against Corporate Psychiatric Providers

The Georgia Court of Appeals has reversed the dismissal of certain counts of a third renewal complaint against two corporate psychiatric services providers. In Curles v. Psychiatric Solutions, the Court held that Plaintiffs had stated claims for negligence per se and ordinary negligence, not professional negligence, and that those claims related back to an original complaint for purposes of statutes of limitation and repose.

Plaintiffs are the estates and wrongful death claimants of two people killed by Amy Kern, a patient at a private psychiatric facility. Ms. Kern had been committed involuntarily to the facility on three occasions for psychotic episodes and violent tendencies. Twelve days after her last discharge, she killed her grandmother and her grandmother’s boyfriend.

Plaintiffs filed an original complaint against the corporate defendants and individual providers, alleging breach of the duty to exercise reasonable care to control Amy, consistent with the Bradley Center case. They also filed an expert affidavit. Plaintiffs dismissed the corporate defendants from the original complaint without prejudice. Plaintiffs then filed a “renewal complaint” against the corporate defendants with the same allegations and moved to consolidate the “renewal complaint” with the original complaint. The trial court granted the motion and added the corporate defendants back to the case. Plaintiffs then filed second and third amended complaints, which the corporate defendants moved to dismiss.

In the first part of the decision, the Court of Appeals held that Plaintiffs stated a claim against the corporate defendants for negligence per se based on the statutes requiring notice of discharge following involuntary commitment. The Court also held that Plaintiffs stated a claim for ordinary negligence against the corporate defendants because they alleged the decision to discharge Ms. Kern was based on the fact her insurance had run out, not on professional judgment.

In ruling the claim was viable under the Bradley Center/control test, the Court held that although Bradley Center involved specific threats against specific people, the control principle is not so limited. Rather, the duty to control is to protect third parties generally, not specific third parties only. The Court re-emphasized the underlying principle that knowledge of threats generally is the key element in a case based on Bradley Center, distinguishing the Baldwin v. Hosp. Auth. of Fulton County case in which there was no evidence of actual or threatened harm prior to discharge. Lastly, the Court held that the non-professional malpractice claims were similar enough to the allegations in the original complaint, such that they would relate back.

The take-home messages are (1) allegations of ordinary negligence or negligence per se will relate back, (2) dropped defendants can be added back into a case, and (3) a control claim under Bradley Center can be brought by injured third parties generally and is not limited to specific third parties targeted by the injuring party.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

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.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

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:

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

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.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

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.

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

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).

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone

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).

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this pageEmail this to someone