Publications & Presentations – Carlock Copeland http://carlockcopeland.com Mon, 15 Jan 2018 16:42:34 +0000 en-US hourly 1 Better Safe Than Sorry: Emergency Preparedness for Lawyers – Doug MacKelcan Published in AttPro Ally Risk Management Newsletter http://carlockcopeland.com/publications/better-safe-sorry-emergency-preparedness-lawyers-doug-mackelcans-article-attpro-ally-risk-management-newsletter/ Tue, 09 Jan 2018 17:00:14 +0000 http://carlockcopeland.com/?post_type=publications&p=15986 Doug MacKelcan wrote an article, Better Safe than Sorry: Emergency Preparedness for Lawyers, which was published in Attorney Protective’s Fall 2017 Risk Management Newsletter, AttyPro Ally.  Doug’s article discusses the importance of setting up a Business Continuity Plan (BCP) and preparing for unforeseen disasters or disruptions. To read the entire article, click here.

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Doug MacKelcan wrote an article, Better Safe than Sorry: Emergency Preparedness for Lawyers, which was published in Attorney Protective’s Fall 2017 Risk Management Newsletter, AttyPro Ally.  Doug’s article discusses the importance of setting up a Business Continuity Plan (BCP) and preparing for unforeseen disasters or disruptions. To read the entire article, click here.

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Tennessee Supreme Court Holds That Full and Undiscounted Medical Bills may be Submitted as Proof of Reasonable Medical Expenses – Insurance Coverage Corner Blog Post by G. Graham Thompson http://carlockcopeland.com/publications/tennessee-supreme-court-holds-full-undiscounted-medical-bills-may-submitted-proof-reasonable-medical-expenses-insurance-coverage-corner-blog-post-g-graham-thompson/ Mon, 18 Dec 2017 15:13:38 +0000 http://carlockcopeland.com/?post_type=publications&p=15869 Insurance Coverage Corner Blog post by G. Graham Thompson. The Tennessee Supreme Court has issued its long-awaited decision in the Dedmon v. Steelman case. This case has direct and significant consequences to personal injury litigation in Tennessee. In short, defendants may not argue that the amount actually received by a medical provider is the reasonable…

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Insurance Coverage Corner Blog post by G. Graham Thompson.

The Tennessee Supreme Court has issued its long-awaited decision in the Dedmon v. Steelman case. This case has direct and significant consequences to personal injury litigation in Tennessee. In short, defendants may not argue that the amount actually received by a medical provider is the reasonable amount of a plaintiff’s medical bills.  Plaintiffs may submit undiscounted medical bills in full as proof of reasonable expenses.

The Tennessee Supreme Court granted an appeal in Dedmon to address whether its ruling in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) applies in personal injury cases. In West, the court held that a hospital’s reasonable charges under Tennessee’s hospital lien statute are the amount the hospital accepts from the patient’s private insurer, not the full amount of the medical bills sent to the patient.

The Supreme Court released its decision on November 17, 2017.  The court held that the collateral source rule applies to personal injury claims in which the collateral benefit at issue is private insurance. Consequently, plaintiffs may submit evidence of the injured party’s full, undiscounted medical bills as proof of reasonable expenses. Furthermore, defendants are precluded from submitting evidence of discounted rates accepted by medical providers from an insurer in order to rebut the plaintiff’s proof that the full, undiscounted charges are reasonable.

The court reasoned that to allow defendants to submit discounted rates would conflict with the collateral source rule. However, defendants remain free to submit any other competent evidence to rebut a plaintiff’s proof on the reasonableness of medical expenses, so long as that evidence does not conflict with the collateral source rule.

Please click here for more information on our Insurance Coverage Corner Blog.

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Accounting Firm Prevails Against Disgruntled Seller – Commercial Litigation Blog Posting by Matt Gass http://carlockcopeland.com/publications/accounting-firm-prevails-disgruntled-seller-commercial-litigation-blog-posting-matt-gass/ Fri, 15 Dec 2017 15:01:51 +0000 http://carlockcopeland.com/?post_type=publications&p=15863 Commercial Litigation Blog Posting by Matt Gass. Matt Gass and Joe Kingma won a motion to dismiss against a seller after a deal fell through. The seller alleged malpractice, misrepresentation and intentional interference; essentially that the purchaser wanted to get out of their agreement and used the accountant to achieve that result. Joe and Matt…

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Commercial Litigation Blog Posting by Matt Gass.

Matt Gass and Joe Kingma won a motion to dismiss against a seller after a deal fell through. The seller alleged malpractice, misrepresentation and intentional interference; essentially that the purchaser wanted to get out of their agreement and used the accountant to achieve that result. Joe and Matt filed an early motion to dismiss and prevailed on all the claims.

Claims arising from the accountant’s role in mergers and acquisitions are definitely on the rise, and we are handling several more of those now, so please check back for updates.

Please click here for more information on our Commercial Litigation Blog.

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New Jersey Opinion Focuses on the “Nature and Scope” of Damage to Determine Trigger for Coverage – Insurance Coverage Corner Blog Post by Nick Stewart http://carlockcopeland.com/publications/new-jersey-opinion-focuses-nature-scope-damage-determine-trigger-coverage-blog-post-nick-stewart/ Tue, 05 Dec 2017 18:09:48 +0000 http://carlockcopeland.com/?post_type=publications&p=15841 Insurance Coverage Corner Blog post by Nick Stewart. Recently, a New Jersey appeals court ruled that insurance coverage for construction defect liability claims extends until the nature and the scope of the property damage becomes apparent. Thus, a new grey area has been created for insurers to assess time on risk. The result of the…

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Insurance Coverage Corner Blog post by Nick Stewart.

Recently, a New Jersey appeals court ruled that insurance coverage for construction defect liability claims extends until the nature and the scope of the property damage becomes apparent. Thus, a new grey area has been created for insurers to assess time on risk. The result of the opinion leads one to believe that insurer will more likely than not lose on summary judgment as to “trigger” because the court seemingly requires a rigorous and fact-intensive analysis of when the “last pull” of the trigger occurs.

The underlying matter involved a condominium building that was built between November 2005 and April 2008. As early as February 2008, homeowners noticed water damage in their windows, ceilings and other portions of the units. In May 2010 the unit owners hired an expert to perform a moisture survey of the development and he identified 111 spots of moisture damaged areas that need to be removed and replaced. The unit owners alleged the HVAC contractor was to blame for the moisture intrusion at the project.

Selective issued an “occurrence based” general liability policy that covered bodily injury and property damage taking place during the policy period of June 2009 through June 2012 for the HVAC contractor. Selective disclaimed coverage on the grounds the alleged property damage had occurred prior to the inception of its policy because the homeowners were aware of the problems in 2008. The trial court agreed with Selective and found that the continuous trigger applied to the claims against the HVAC contractor, but still held that Selective had no coverage obligations because the damage had in fact manifested before June 2009.

The HVAC contractor appealed and argued, “the end date for the continuous trigger doesn’t occur until an expert report or some other proof definitively establishes that the policyholder’s faulty work caused the alleged damage.” The court disagreed and stated that “an attribution analysis could be highly fact-dependent, and difficult to resolve when an insured makes a request for defense and indemnification after being named in a complaint.” In sum, HVAC contractor argued that the trigger began when the expert analysis was performed in 2010. Conversely, Selective argued that , based on the hearsay statements of the homeowners, the triggering event occurred in 2008. The appellate court found that information about the building defects was or reasonably could have been revealed at any time between the time of the unit owners’ complaints until the start of Selective’ s policy in June 2009 and the case should be reopened to allow for discovery to explore the critical factual issues outlined in the opinion regarding the discovery of the damage.

The ruling muddies the water as to triggering events and the parties have been ordered to complete more discovery to determine when the essential manifestation occurred in this instance. For insurers in this jurisdiction, this means they will need to pursue discovery as to the nature and scope of the damage to attempt demonstrate when the last trigger pull occurred if they are seeking to avoid providing coverage. Conversely, insureds will likely attempt to undercut this evidence as inadmissible or too vague to warrant a “trigger pull.” Those who represent insureds in this jurisdiction may find this case inconsistent with spirit of the New Jersey Supreme Court’s landmark 1994 ruling in Owens-Illinois Inc. v. United Insurance Co., which applied the continuous trigger in a dispute over coverage for asbestos-related bodily injury claims to maximize coverage.

This case is Air Master & Cooling Inc. v. Selective Insurance Co., case number A-5415-15T3, in the Superior Court of the State of New Jersey, Appellate Division. Our office intends to follow this case and will update with a blog post regarding significant decisions.

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Cyber Security and Liability Insurance: Stand-Alone Cyber Policies On The Rise – Cyber Liability Blog Posting by Michael Manfredi http://carlockcopeland.com/publications/cyber-security-liability-insurance-stand-alone-cyber-policies-rise-cyber-liability-blog-posting-michael-manfredi/ Tue, 05 Dec 2017 14:53:39 +0000 http://carlockcopeland.com/?post_type=publications&p=15832 Cyber Liability Blog Posting by Michael Manfredi. After companies began electronically storing sensitive business and customer information, the insurance industry focused heavily on privacy protection.  Businesses began implementing breach defenses and response protocols in an effort to avoid or mitigate the effects of having personal health information, financial information, trade secrets, or intellectual property stolen…

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Cyber Liability Blog Posting by Michael Manfredi.

After companies began electronically storing sensitive business and customer information, the insurance industry focused heavily on privacy protection.  Businesses began implementing breach defenses and response protocols in an effort to avoid or mitigate the effects of having personal health information, financial information, trade secrets, or intellectual property stolen or used without authorization.  In many cases, hackers held the information hostage and demanded payment of a ransom (“ransomware attacks”) in order to release the information and not expose it to the public.  Breaches in privacy protection cause other expenses related to notification, data recovery, public relations management, reputation damages, and others.  Thus, cyber insurance became a popular line of coverage offered by insurance companies.  Now, with cyber-attacks getting increased media attention, the insurance industry has broadened coverage for cyber security and cyber liability into more areas than just privacy protection.

Businesses are learning that cyber breaches do not just affect privacy protection; they can also interrupt business and cause property damage.  The most common course of action when a breach is noticed is to stop operations.  When systems shutdown, so does the flow of goods and services.  When the flow of goods and services stops, money stops coming in.  With regard to property damage, many, if not most, businesses now rely on some form of computer-controlled regulation in their buildings.  For example, it is common to have a building’s heating and air conditioning set on an electronically-stored schedule.  If, however, the heat does not turn on when it’s supposed to, water lines can freeze.  If there is water in the pipes, that too freezes and, when the ice expands, it can cause the pipes to break, releasing water into the building.  As another example, consider factories that rely on computer-controlled cooling fans.  If they are stopped, machines overheat and start fires.  These kinds of losses are notable particularly because they do not require activity on the part of a sophisticated hacker.  Rather, human error and technical glitches can cause these losses.

Hence, new lines of insurance coverage are popping up in the marketplace.  Cyber coverage for business interruption and property damage are starting to be offered as umbrella coverage over property, kidnap, and ransom policies.  Stand-alone cyber policies are also being offered.  However, the market is young and maturing.  Policyholders need to review and re-review their policies to ensure proper wording for issues such as cyber extortion, business interruption, contingent business interruption, and cyber property-related coverage.  To keep premiums low in a time when cyber breaches regularly make front-page news (Equifax, Home Depot, etc.), businesses should be ready to demonstrate breach-readiness, such as the establishment of incident response teams, as well as internal and external cyber security controls.

Please click here for more information regarding our Cyber Liability Blog.

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Charlie McDaniel Published in CLM Magazine – “Set-Up” Bad Faith: An Epidemic That Is Not Subsiding http://carlockcopeland.com/publications/set-up-bad-faith-an-epidemic-that-is-not-subsiding-by-charles-m-mcdaniel-jr/ Mon, 04 Dec 2017 14:18:03 +0000 http://carlockcopeland.com/?post_type=publications&p=15821 Charlie McDaniel published in CLM Magazine.  The article is entitled, “Set-Up” Bad Faith: An Epidemic That Is Not Subsiding. The assault on insurers via bad faith continues. Although this article focuses on Georgia law, the bad-faith experience is not unique to that state’s insurers. Over the course of the last several decades, the plaintiffs’ bar, in all…

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Charlie McDaniel published in CLM Magazine.  The article is entitled, “Set-Up” Bad Faith: An Epidemic That Is Not Subsiding.

The assault on insurers via bad faith continues. Although this article focuses on Georgia law, the bad-faith experience is not unique to that state’s insurers. Over the course of the last several decades, the plaintiffs’ bar, in all jurisdictions, has employed various schemes and methods for securing “additional insurance coverage” through the creation of alleged bad faith. Typically, this tactic is used in cases of clear liability, coupled with significant or otherwise catastrophic injuries and limited insurance coverage. Counsel for the injured party submits convoluted or purposely vague and ambiguous time-limited policy limit demands, with the intent of orchestrating a “denial” of the demand through a failure of acceptance. In these instances, the insurer often feels “set-up” solely to increase the amount of available “coverage” through an extra-contractual, bad-faith cause of action.

Please click here to read the entire article.

 

A SPECIAL REPRINT
© Entire contents copyright 2017 by CLM magazine, a publication of The CLM. All rights reserved.

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Transitioning from Offense to Defense: Challenging the Viability of Underlying Claims is a Strong Defense in Legal Malpractice Lawsuits – Commercial Litigation Blog Posting by Matthew Gass http://carlockcopeland.com/publications/transitioning-offense-defense-challenging-viability-underlying-claims-strong-defense-legal-malpractice-lawsuits-commercial-litigation-blog-posting-matthew-gass/ Wed, 15 Nov 2017 17:02:01 +0000 http://carlockcopeland.com/?post_type=publications&p=15801 Commercial Litigation Blog posting by Matthew Gass. Causation continues to be one of the toughest hurdles for clients suing their former lawyers. In legal malpractice cases arising from litigation, one element of a plaintiff’s case will be the merits of that underlying litigation. If the underlying case was unwinnable, then losing is not malpractice. Relying…

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Commercial Litigation Blog posting by Matthew Gass.

Causation continues to be one of the toughest hurdles for clients suing their former lawyers. In legal malpractice cases arising from litigation, one element of a plaintiff’s case will be the merits of that underlying litigation. If the underlying case was unwinnable, then losing is not malpractice. Relying on this rationale, Georgia courts have been frequently dismissing malpractice cases. Sometimes an attorney’s best defense is to attack the merits of the underlying claims he or she had previously argued in favor of. Causation continues to be one of the toughest hurdles for clients suing their former lawyers. In legal malpractice cases arising from litigation, one element of a plaintiff’s case will be the merits of that underlying litigation. If the underlying case was unwinnable, then losing is not malpractice. Relying on this rationale, Georgia courts have been frequently dismissing malpractice cases. Sometimes an attorney’s best defense is to attack the merits of the underlying claims he or she had previously argued in favor of.

In Benson et al. v. Ward, the Georgia Court of Appeals held that a defendant attorney was entitled to summary judgment in a legal malpractice lawsuit because his former client could not show that the trial court abused its discretion dividing marital property. The plaintiff’s lawyer failed to timely file an appeal of the divorce decree. Because the trial court has broad discretion in how it divides marital property, the plaintiff couldn’t meet the high burden of showing that the division would have been reversed if the appeal had been properly filed.

In McDonough v. Taylor English Duma, LLP, the Georgia Supreme Court affirmed the dismissal of a legal malpractice lawsuit based on Georgia’s non-assignment statute (O.C.G.A. § 44-12-24). The plaintiff was a successor in interest to a bank on a note and guaranties that sued the guarantor for fraudulently transferring property to his wife. The plaintiff’s attorney did not add the wife to the lawsuit before she transferred the property to a bona fide purchaser. As a result, the plaintiff couldn’t execute the judgment against the transferred property. The Court held that the plaintiff could not have prevailed on the fraudulent transfer claim because a right of action for fraud is not assignable. Because the fraudulent transfer claim was not viable, the legal malpractice claim also failed.

It is important, however, to note that the Georgia legislature has passed the Uniform Voidable Transfer Act, which expressly allows assignees to pursue fraudulent transfer claims. Even so, the McDonough decision is a good reminder that a valid defense to the underlying claims can sever proximate cause in the legal malpractice lawsuit.

These cases emphasize that the viability of underlying claims are often the lynchpin in legal malpractice lawsuits. Once a legal malpractice lawsuit is filed, however, an attorney needs to be comfortable switching from offense to defense. This can put attorneys in the awkward spot of challenging their own positions they had taken representing their former client. As the Georgia courts continue to show us, attacking proximate cause due to failures of the claims underlying the legal malpractice lawsuit can often be the best defense.

For more information on our Commercial Litigation Blog or to subscribe, click here.

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Georgia Court of Appeals Reinstates Claims Against Corporate Psychiatric Providers – Health Law & Regulation Update Blog Posting by Eric Frisch http://carlockcopeland.com/publications/georgia-court-appeals-reinstates-claims-corporate-psychiatric-providers-health-law-regulation-update-blog-posting-eric-frisch/ Thu, 09 Nov 2017 16:45:43 +0000 http://carlockcopeland.com/?post_type=publications&p=15778 Health Law and Regulation Update Blog Posting by Eric Frisch. 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…

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Health Law and Regulation Update Blog Posting by Eric Frisch.

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.

Please click here for more information on our Health Law & Regulation Update Blog.

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Georgia Supreme Court Clarifies Rule on Intervening Acts and Causation – Insurance Coverage Corner Blog Posting by Michael Manfredi http://carlockcopeland.com/publications/georgia-supreme-court-clarifies-rule-intervening-acts-causation-insurance-coverage-corner-blog-posting-michael-manfredi/ Wed, 08 Nov 2017 15:12:14 +0000 http://carlockcopeland.com/?post_type=publications&p=15758 Insurance Coverage Corner Blog Posting by Michael Manfredi. In Georgia, there is no requirement that an intervening act be wrongful or negligent to break the causal chain of a tortfeasor’s act or omission and a plaintiff’s injury.  Rather, the analysis is simply whether the concurrence of an intervening act was reasonably foreseeable by a defendant,…

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Insurance Coverage Corner Blog Posting by Michael Manfredi.

In Georgia, there is no requirement that an intervening act be wrongful or negligent to break the causal chain of a tortfeasor’s act or omission and a plaintiff’s injury.  Rather, the analysis is simply whether the concurrence of an intervening act was reasonably foreseeable by a defendant, or if the intervening act was triggered by the defendant’s conduct.

In Jordan v. Everson, Ben Everson’s mother drove him to the emergency room at Phoebe Sumter Medical Center in Americus, Georgia because he was hearing voices and hallucinating.  There, Dr. Brian Jordan diagnosed him with obsessive-compulsive disorder and discharged him.  Before leaving, ER personnel called and set up an appointment for May 1 at a mental health facility near the Medical Center.  However, the Eversons, originally from Durham, North Carolina, had a number of contacts at Duke University Hospital.  Mr. Everson began calling around to see if he could get his son in to see someone at Duke.  He ultimately made an appointment for Ben to see a psychiatrist at Duke on the afternoon of May 1st.  During the drive to North Carolina, Ben unbuckled his seatbelt, jumped out of the moving car, and ran down the highway.  He was hit and killed by a vehicle traveling on the interstate.

Dr. Jordan filed a motion for summary judgment, arguing that the intervening act of driving Ben to a hospital hours away, rather than taking him to the local facility, broke the causal chain.  The trial court denied the motion, and the Court of Appeals affirmed.  In affirming the trial court’s denial of Dr. Jordan’s motion, the Court of Appeals relied on the following line, taken from the opinion in Goldstein, Garber & Salama v. J.B., 300 Ga. 840 (2017), where the Georgia Supreme Court said, “that its negligence is not the proximate cause of the plaintiffs injuries, but that an act of a third-party intervened to cause those injuries, the rule is that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant.”

Now, the Georgia Supreme Court took the opportunity to clarify that line.  The Court said that the “Court of Appeals read too much into that sentence.”  It distinguished Goldstein by explaining that it was addressing whether a sexual assault, “an indisputably wrongful act,” intervened to break the chain of causation.  “We did not consider whether an intervening act always must be wrongful….”

And in fact, an intervening act does not always have to be wrongful in order to insulate and exclude the negligence of a defendant.  So, when assessing and evaluating a possible defense based on the acts of third-parties, the analysis should include whether the defendant (1) knew or should have known whether the intervening act would occur, or (2) triggered, or caused, the act to occur.  If the answer to both questions is “no,” then a motion for summary judgment may be appropriate.  To carry the application of this rule further, when analyzing claims, professionals and attorneys should consider whether the acts of a third-party intervened in such a way that the third-party assumed some level of responsibility for the plaintiff’s ultimate injuries.  With Georgia’s broad comparative negligence rule, a defendant’s exposure could be significantly reduced, or eliminated altogether.

The Jordan v. Everson opinion is available at 2017 Ga. LEXIS 884, 2017 WL 4582408 (October 16, 2017).

Please click here for more information on our Insurance Coverage Corner blog.

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Georgia Court of Appeals Affirms Summary Judgment in Misfilled Prescription Case – Blog Posting by Eric Frisch http://carlockcopeland.com/publications/georgia-court-appeals-affirms-summary-judgment-misfilled-prescription-case-blog-posting-eric-frisch/ Tue, 31 Oct 2017 13:09:49 +0000 http://carlockcopeland.com/?post_type=publications&p=15720 Blog Posting by Eric Frisch. 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…

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Blog Posting by Eric Frisch.

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.

Please click here for more information on our Health Law and Regulation Update blog.

 

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