Publications & Presentations – Carlock Copeland https://carlockcopeland.com Tue, 19 Jun 2018 18:21:37 +0000 en-US hourly 1 Georgia Court of Appeals Holds that Doctor’s Interest in Outcome is Fair Game on Cross-Exam – Recent Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-holds-doctors-interest-outcome-fair-game-cross-exam-recent-health-law-regulation-update-blog-post-eric-frisch/ Tue, 19 Jun 2018 15:09:57 +0000 https://carlockcopeland.com/?post_type=publications&p=16738 Recent Health Law and Regulation Update Blog post by Eric Frisch. The Georgia Court of Appeals has held that a doctor’s lien is fertile ground for cross-examination. In the case of Stephens v. Castano-Castano, the plaintiff sued for injuries arising out of a motor vehicle accident. The evidence showed that her attorney referred her to…

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Recent Health Law and Regulation Update Blog post by Eric Frisch.

The Georgia Court of Appeals has held that a doctor’s lien is fertile ground for cross-examination. In the case of Stephens v. Castano-Castano, the plaintiff sued for injuries arising out of a motor vehicle accident. The evidence showed that her attorney referred her to a treating physician who, in turn, treated her under the terms of a lien based on her recovery. Attempts at presuit settlement ultimately resulted in no settlement (and part of the decision deals with offers and acceptance), so a lawsuit was filed.

At trial, the defense sought to cross-examine the treating physician on the fact the attorney referred the plaintiff to him and his lien. Plaintiff moved to exclude the evidence, which was granted.

The Court of Appeals reversed, holding that the trial court should have permitted the defense to cross-examine the doctor based on the financial interest. The Court wrote:

“Dr. Chappius’ financial interest in the outcome of the case is highly relevant to the issue of his credibility and potential bias, as Dr. Chappuis has become an investor of sorts in the lawsuit. If Castano receives a large verdict amount, then Dr. Chappuis has a near certain chance of fully and quickly recovering the costs of the treatment provided to Castano at no initial cost. On the other hand, if Castano does not recover at trial, Dr. Chappuis’ chances of being fully reimbursed are more doubtful. Thus, the expert witness has a financial motivation to testify favorably for Castano, and the probative value of this testimony outweighs its prejudicial effect.”

The Court rejected the notion that the attorney’s referral was fair game, however. In so ruling, the Court wrote that “[a]t most, there is a suggestion of unseemliness which creates a danger of unfair prejudice and confusion of the issues before the jury.”

The case is Stephens v. Castano-Castano, 2018 Ga. App. LEXIS 307.

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Insurance Carrier gets Popped in Bad Faith Action – Recent Insurance Coverage Corner Blog post by Laura Paton. https://carlockcopeland.com/publications/insurance-carrier-gets-popped-bad-faith-action-recent-insurance-coverage-corner-blog-post-laura-paton/ Mon, 11 Jun 2018 20:00:55 +0000 https://carlockcopeland.com/?post_type=publications&p=16747 Recent Insurance Coverage Corner Blog post by Laura Paton. In case you missed it, Judge Roger Young just found in favor of the plaintiffs to the tune of $21,746,022.87 – and that does NOT include punitive damages.  The plaintiffs include the developers of a condominium as well as the individual condo owners and the homeowners…

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Recent Insurance Coverage Corner Blog post by Laura Paton.

In case you missed it, Judge Roger Young just found in favor of the plaintiffs to the tune of $21,746,022.87 – and that does NOT include punitive damages.  The plaintiffs include the developers of a condominium as well as the individual condo owners and the homeowners association.  They filed a declaratory judgment, breach of contract and bad faith action against an insurance carrier, after the carrier denied defenses in underlying water intrusion and construction defects complaints filed by the homeowners association and individual unit owners.  Judge Young found that the four requirements of the insurance agreement for each of the policy years had been met and that the exclusions cited were ambiguous and, therefore, must be construed in favor of the insured.  Thus, the insurance carrier owed a duty to defend and indemnify its insured.  Interestingly, the court took issue with the content of the denial letter in much the same way as we recently saw in the Heritage v. Harleysville case.  The punitive damages hearing is set to occur at a later date and it remains to be seen if this decision will be appealed.

Stay tuned for an update, after the upcoming punitive damages hearing.

For more information on our Insurance Coverage Corner Blog, please click here.

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Shannon Sprinkle Presented at the State Bar of Georgia’s Annual Meeting on June 8, 2018 https://carlockcopeland.com/publications/shannon-sprinkle-presented-state-bar-georgias-annual-meeting-june-8-2018/ Mon, 11 Jun 2018 19:55:46 +0000 https://carlockcopeland.com/?post_type=publications&p=16743 The 2018 State Bar of Georgia Annual Meeting was June 7-10, 2018 in Amelia Island, FL.  Shannon Sprinkle joined a panel presentation during the Social Media and Technology for Judges and Lawyers CLE, on June 8, 2018.  Shannon’s segment, Technology and Ethics for Lawyers occurred at 2:05 p.m. For more information on The Georgia Bar’s annual…

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The 2018 State Bar of Georgia Annual Meeting was June 7-10, 2018 in Amelia Island, FL.  Shannon Sprinkle joined a panel presentation during the Social Media and Technology for Judges and Lawyers CLE, on June 8, 2018.  Shannon’s segment, Technology and Ethics for Lawyers occurred at 2:05 p.m.

For more information on The Georgia Bar’s annual meeting, please click here.

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Joe Kingma Presented at AmLaw 200 Law Firm https://carlockcopeland.com/publications/joe-kingma-presented-amlaw-200-law-firm/ Tue, 05 Jun 2018 19:09:25 +0000 https://carlockcopeland.com/?post_type=publications&p=16726 Joe Kingma presented a custom risk management program to all of the lawyers in an AmLaw 200 law firm on Friday June, 1, 2018.

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Joe Kingma presented a custom risk management program to all of the lawyers in an AmLaw 200 law firm on Friday June, 1, 2018.

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Georgia Court of Appeals Validates Complaint Filed Without Expert Affidavit – Recent Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-validates-complaint-filed-without-expert-affidavit/ Tue, 29 May 2018 14:33:44 +0000 https://carlockcopeland.com/?post_type=publications&p=16718 Recent Health Law and Regulation Update Blog post by Eric Frisch. Under Georgia law, a medical malpractice complaint may be filed without an expert affidavit if the statute of limitations is to expire within 10 days and an attorney files an affidavit testifying they were not retained more than 90 days earlier. In a case…

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Recent Health Law and Regulation Update Blog post by Eric Frisch.

Under Georgia law, a medical malpractice complaint may be filed without an expert affidavit if the statute of limitations is to expire within 10 days and an attorney files an affidavit testifying they were not retained more than 90 days earlier. In a case of first impression, the Georgia Court of Appeals affirmed the denial of a motion to dismiss for failure to file an expert affidavit when an attorney sent a request for medical records 18 months before certifying they had not been retained to file suit.

In Pico v. Brady, the alleged malpractice occurred on August 1, 2014. On December 16, 2014, Plaintiff signed an authorization permitting attorney Chris McClure to obtain medical records from the potential defendant doctor. On the same day, Plaintiff filled out a “New Client Questionnaire” for Mr. McClure in which Plaintiff acknowledged there would be no attorney-client relationship until a “Legal Services Contract” was executed. On July 29, 2016, Plaintiff signed the Legal Services Contract. On August 1, 2016, Mr. McClure filed the lawsuit for Plaintiff.  However, Mr. McClure did not file an expert affidavit; rather, he filed an attorney affidavit stating that he had not been retained until July 29, 2016.

Defendants moved to dismiss and attached the medical records authorization and request as well as the “New Client Questionnaire.” The trial court denied the motion and the Court of Appeals affirmed. The Court ruled that, based on the Georgia Rules of Professional Conduct, the client controlled the scope of the attorney-client relationship.  Plaintiff in this case had expressly limited the scope of representation in December 2014 to only the collection of the records.  Since Plaintiff had not retained Mr. McClure for purposes of filing the lawsuit until July 29, 2016, there was no basis to dismiss the case.

Notably, the subsection of OCGA 9-11-9.1 regarding the filing of an attorney affidavit is silent on whether the attorney is retained for any purpose, including the filing of the lawsuit. Instead, the plain language of the statute reads that the attorney must certify that his or her “law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiff’s claim or claims.”

Pico v. Brady, 2018 Ga. App. LEXIS 293 (2018).

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Mark Rogers Published in the ABA’s Tort Trial & Insurance Practice Law Journal https://carlockcopeland.com/publications/mark-rogers-published-abas-tort-trial-insurance-practice-law-journal/ Tue, 22 May 2018 16:22:59 +0000 https://carlockcopeland.com/?post_type=publications&p=16684 Mark Rogers co-authored an in-depth article for the American Bar Association’s Tort Trial & Insurance Practice Law Journal, Winter 2018 edition, Vol. 53-2. The article is entitled Recent Developments Affecting Professionals’, Officers’, and Directors’ Liability Insurance and discusses recent noteworthy court decisions and regulatory actions affecting the liability that a variety of professionals – including…

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Mark Rogers co-authored an in-depth article for the American Bar Association’s Tort Trial & Insurance Practice Law Journal, Winter 2018 edition, Vol. 53-2. The article is entitled Recent Developments Affecting Professionals’, Officers’, and Directors’ Liability Insurance and discusses recent noteworthy court decisions and regulatory actions affecting the liability that a variety of professionals – including corporate directors and officers, architects and engineers, lawyers, accountants and auditors, and insurance agents and brokers – may incur to third parties or for which they may seek insurance coverage.

Please click here to read the article.

With expressed permission to reprint by Tort Trial & Insurance Practice Law Journal, Winter 2018 edition ©.

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Laura Paton and Alex Davis Published in SC Lawyers Magazine – Understanding Apportionment in South Carolina https://carlockcopeland.com/publications/laura-paton-alex-davis-published-sc-lawyers-magazine-understanding-apportionment-south-carolina/ Wed, 16 May 2018 20:41:36 +0000 https://carlockcopeland.com/?post_type=publications&p=16668 Laura Paton and Alex Davis co-authored an article for SC Lawyers Magazine’s May 2018 issue entitled Understanding Apportionment in South Carolina.  In 2017 alone, insurance companies spent well over $100 million in settlements and verdicts in civil claims in South Carolina. Determining which party’s insurance carrier is liable for payment of a verdict or settlement, and…

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Laura Paton and Alex Davis co-authored an article for SC Lawyers Magazine’s May 2018 issue entitled Understanding Apportionment in South Carolina. 

In 2017 alone, insurance companies spent well over $100 million in settlements and verdicts in civil claims in South Carolina. Determining which party’s insurance carrier is liable for payment of a verdict or settlement, and for how much, is big business and understanding how to position your client to address this issue has never been more complicated. This in-depth article looks at how apportionment rules have changed in South Carolina and why attorneys and insurance professionals alike need to stay abreast of these changes to avoid being hit with disproportionate damages at trial.

To read the article, please click here.

To view the May 2018 Edition of SC Lawyers Magazine, please click here.

With expressed permission to reprint by SC Lawyer Magazine, May 2018 Edition©.

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Joe Kingma Joins Panel Presentation Attorney Mal Mediations: Tools For the Advanced Practitioner – April 17, 2018 https://carlockcopeland.com/publications/joe-kingma-joins-panel-presentation-attorney-mal-mediations-tools-advanced-practitioner-april-17-2018/ Wed, 18 Apr 2018 15:36:00 +0000 https://carlockcopeland.com/?post_type=publications&p=16594 Joe Kingma co-presented JAMS Atlanta Resolution Center’s complimentary CLE discussion, Attorney Mal Mediations: Tools for the Advanced Practitioner, on April 17, 2018. The panel discussed nuances of mediating professional liability disputes from the perspectives of plaintiff’s counsel, defendant’s counsel, the defendant’s various interested representatives, the defendant’s insurer, and the mediator. Featured Speakers were: Rickman Brown,…

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Joe Kingma co-presented JAMS Atlanta Resolution Center’s complimentary CLE discussion, Attorney Mal Mediations: Tools for the Advanced Practitioner, on April 17, 2018.

The panel discussed nuances of mediating professional liability disputes from the perspectives of plaintiff’s counsel, defendant’s counsel, the defendant’s various interested representatives, the defendant’s insurer, and the mediator.

Featured Speakers were:

Rickman Brown, Evans Scholz, Williams, & Warncke, LLC

Ralph B. Levy, Esq., JAMS

Johannes S. Kingma, Partner, Carlock Copeland Civil Litigation

For more information on this JAMS Atlanta Resolution Center, please click here.

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Georgia Court of Appeals Remands Case for Pain and Suffering Award – Recent Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-remands-case-pain-suffering-award-recent-health-regulation-update-blog-post-eric-frisch/ Mon, 16 Apr 2018 13:14:07 +0000 https://carlockcopeland.com/?post_type=publications&p=16625 Recent Health Law and Regulation Update Blog post by Eric Frisch The Georgia Court of Appeals has reversed a jury verdict and remanded the case for retrial when the jury awarded past medical expenses but $0 for future medical expenses, past and future lost wages, and past and future pain and suffering. The Court held…

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Recent Health Law and Regulation Update Blog post by Eric Frisch

The Georgia Court of Appeals has reversed a jury verdict and remanded the case for retrial when the jury awarded past medical expenses but $0 for future medical expenses, past and future lost wages, and past and future pain and suffering. The Court held that the award of $0 was “so grossly inadequate” as to justify a new trial. The Court further held that it could not remand the case for a trial on damages only because the original jury apportioned 49% of the fault to the plaintiff. The case is Evans v. Rockdale Hospital, Ga.Ct.App. April 12, 2008.

Mrs. Evans presented to the emergency department at Rockdale Hospital after waking with the “worst headache of her life.” She told the nursing staff she thought she had food poisoning and the triage nurse failed to document the complaint of a headache. Mrs. Evans was worked up for digestive complaints and discharged. She followed up with a primary care physician. She continued to experience a severe headache for several days, eventually returning to the hospital. A CT scan showed she had suffered a stroke as a result of a ruptured aneurysm. At the time of trial, she was permanently disabled and required 24 hour attendant care.

At trial, Plaintiffs presented evidence of $1.2 million in past medical expenses, future medical expenses, past and future lost wages, and a day-in-the-life video, among other evidence, of pain and suffering. The jury returned a special verdict for the past medical expenses but $0 for all other items of damages, finding that Rockdale was 51% at fault and Mrs. Evans was 49% at fault based on what she complained of in the emergency department during the initial visit. Judgment was entered for just over $600,000, with an award for loss of consortium.

Plaintiffs moved for additur or for new trial on the ground that the award was so grossly inadequate as to be inconsistent with the preponderance of the evidence. The trial court denied the motion and the Court of Appeals reversed and remanded for a new trial on all issues. The Court held that Plaintiffs had presented evidence of past and future pain and suffering and that the law infers pain and suffering from personal injury. Because the jury awarded the past medical expenses and there was such evidence of pain and suffering, then, as a matter of law, the $0 award was grossly inadequate. The Court distinguished other cases in which there had been awards of special damages, but no pain and suffering.

Take-home message: this case probably does not have a lot of broad application, but is worth reading. We will monitor this case for further appeals.

For more information on or to subscribe to our Health Law and Regulation Blog, please click here.

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Bill Jones Presents Key Moments in the Life of a Claim, an In-House Client Presentation https://carlockcopeland.com/publications/bill-jones-presents-key-moments-life-claim-house-client-presentation/ Thu, 12 Apr 2018 16:25:20 +0000 https://carlockcopeland.com/?post_type=publications&p=16618 Bill Jones presented an in-house client presentation, Key Moments in the Life of a Claim, on March 20, 2018. For information on this presentation or other presentations available to to your organization, please contact Michelle Mattox, mmattox@carlockcopeland.com.

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Bill Jones presented an in-house client presentation, Key Moments in the Life of a Claim, on March 20, 2018.

For information on this presentation or other presentations available to to your organization, please contact Michelle Mattox, mmattox@carlockcopeland.com.

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