Publications & Presentations – Carlock Copeland https://carlockcopeland.com Thu, 21 Mar 2019 19:54:28 +0000 en-US hourly 1 Lee Weatherly Presents at The CLM’s 2019 Annual Conference in Orlando, FL https://carlockcopeland.com/publications/lee-weatherly-presents-clms-2019-annual-conference-orlando-fl/ Thu, 21 Mar 2019 16:28:20 +0000 https://carlockcopeland.com/?post_type=publications&p=17464 Lee Weatherly presented Opioid Lawsuits – Where are They Going in 2019? at The CLM’s 2019 Annual Conference on March 14,2019 in Orlando Florida. For more information on The CLM, please click here.  For more information on similar presentations available to your organization, please email mmattox@carlockcopeland.com.

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Lee Weatherly presented Opioid Lawsuits – Where are They Going in 2019? at The CLM’s 2019 Annual Conference on March 14,2019 in Orlando Florida.

For more information on The CLM, please click here.  For more information on similar presentations available to your organization, please email mmattox@carlockcopeland.com.

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Billy Newcomb presented at The CLM’s 2019 Annual Conference in Orlando, FL https://carlockcopeland.com/publications/billy-newcomb-presented-clms-2019-annual-conference-orlando-fl/ Thu, 21 Mar 2019 14:46:47 +0000 https://carlockcopeland.com/?post_type=publications&p=17459 Billy Newcomb joined a panel presentation at The CLM’s 2019 Annual Conference in Orlando, Florida.  Billy’s panel presented Malpractice Claims Against Defense Counsel: Preventing and Recognizing Potential Claims, on March 14, 2019. For more information on The CLM, please click here.  For more information on similar presentations available to your organization, please email mmattox@carlockcopeland.com.

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Billy Newcomb joined a panel presentation at The CLM’s 2019 Annual Conference in Orlando, Florida.  Billy’s panel presented Malpractice Claims Against Defense Counsel: Preventing and Recognizing Potential Claims, on March 14, 2019.

For more information on The CLM, please click here.  For more information on similar presentations available to your organization, please email mmattox@carlockcopeland.com.

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Doug MacKelcan Presented at The CLM’s 2019 Annual Conference in Orlando, FL https://carlockcopeland.com/publications/doug-mackelcan-presented-clms-2019-annual-conference-orlando-fl/ Thu, 21 Mar 2019 14:38:55 +0000 https://carlockcopeland.com/?post_type=publications&p=17457 Doug MacKelcan joined a panel presentation at The CLM’s 2019 Annual Conference on March 14, 2019.  Doug’s panel presented Staying Ahead of the Class – Strategies for Defending Professional and Management Liability Class Actions.   For more information on The CLM organization, please click here. For information on similar presentations, please email mmattox@carlockcopeland.com.    

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Doug MacKelcan joined a panel presentation at The CLM’s 2019 Annual Conference on March 14, 2019.  Doug’s panel presented Staying Ahead of the Class – Strategies for Defending Professional and Management Liability Class Actions.  

For more information on The CLM organization, please click here. For information on similar presentations, please email mmattox@carlockcopeland.com.

 

 

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Georgia Court of Appeals Reverses Defense Verdict on Hearsay Ruling – Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-reverses-defense-verdict-hearsay-ruling/ Wed, 13 Mar 2019 19:41:36 +0000 https://carlockcopeland.com/?post_type=publications&p=17445 Health Law and Regulation Update Blog post by Eric Frisch. The Georgia Court of Appeals has reversed a defense verdict in a medical malpractice case because the trial court improperly admitted hearsay testimony under the “learned treatise” exception. In Moore v. Wellstar Health, plaintiff sued a surgeon and an anesthesiologist after her husband died when…

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Health Law and Regulation Update Blog post by Eric Frisch.

The Georgia Court of Appeals has reversed a defense verdict in a medical malpractice case because the trial court improperly admitted hearsay testimony under the “learned treatise” exception. In Moore v. Wellstar Health, plaintiff sued a surgeon and an anesthesiologist after her husband died when he aspirated during rapid sequence induction.

The evidence showed that the patient had a high grade bowel obstruction. Plaintiff’s expert anesthesiologist contended that the standard of care required placement of a nasogastric tube before induction of anesthesia. The defense countered that placement of an NG tube after rapid sequence induction was reasonable.

The defense cross-examined plaintiff’s expert with a document published by the American Society of Anesthesiologists entitled “Committee on Expert Witness Testimony Review and Findings” regarding the testimony of a different expert in a different case. In the document, the ASA sanctioned an expert for testifying that the standard of care required placement of a nasogastric tube before rapid sequence induction. The Moore defense used the document to cross-examine plaintiff’s expert over objection. The jury returned a defense verdict.

The Court of Appeals reversed, holding that the document was hearsay and did not qualify as a “learned treatise” because it was not a published treatise, periodical, or pamphlet. Rather, relying on cases from other jurisdictions, the Court held that the “learned treatise” exception to the hearsay rule is limited and does not include documents that are litigation-inspired, even if they are published by a reputable entity. In addition, the Court held that the error was harmful because the use of the document implied that the plaintiff’s expert’s testimony was sanctionable and therefore not worth of belief.

Take-home: a similar theory has been leveled against a number of publications, including the widely-used ACOG guidelines regarding neonatal encephalopathy (the “Green Book”), among others. Practitioners should look carefully at documents they intend to use for cross-examination to make sure that they are admissible. Notably, the Court did not delve into whether the issue was admissibility into evidence versus use on cross-examination solely for impeachment.

The case is Moore v. Wellstar Health, 2019 Ga.App. LEXIS 170 (March 12, 2019).

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Georgia Court of Appeals Reverses Immunity for Ambulance – Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-reverses-immunity-ambulance-health-law-regulation-update-blog-post-eric-frisch/ Thu, 07 Mar 2019 15:25:24 +0000 https://carlockcopeland.com/?post_type=publications&p=17438 Health Law and Regulation Update Blog post by Eric Frisch. The Georgia Court of Appeals reversed the grant of summary judgment for an ambulance service based on the emergency responder statute. Plaintiff was the wife of a deceased driver and the mother of a son injured in a car accident. Plaintiff alleged that when the…

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Health Law and Regulation Update Blog post by Eric Frisch.

The Georgia Court of Appeals reversed the grant of summary judgment for an ambulance service based on the emergency responder statute. Plaintiff was the wife of a deceased driver and the mother of a son injured in a car accident. Plaintiff alleged that when the ambulance service responded, they failed to treat her husband, resulting in his death. Plaintiff also alleged that the ambulance service improperly treated her son, resulting in additional injuries.

The ambulance service moved for summary judgment under Section 31-11-8, which grants immunity to ambulance services who provide services in good faith and without remuneration. The trial court granted the motion, ruling that the statute applied even though Plaintiff alleged omissions and that the ambulance service did not receive remuneration.

The Court of Appeals reversed, holding there was a fact dispute as to whether the ambulance service received remuneration within the meaning of the statute. The evidence was the ambulance service received compensation for mileage and for “ALS1.” Under the CMS manual for reimbursement, ALS1 is for charges related to emergency services and not an administrative cost like mileage. Accordingly, the ambulance service received remuneration and was not entitled to immunity as a matter of law.

The case is Ortega v. Coffey, 2019 Ga.App. LEXIS 86 (Feb. 26, 2019).

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

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Brian Spitler and Tawny Mack Present at Insurance Office of America’s 2019 Risk Seminar https://carlockcopeland.com/publications/brian-spitler-tawny-mack-present-insurance-office-americas-2019-risk-seminar/ Tue, 05 Mar 2019 21:28:35 +0000 https://carlockcopeland.com/?post_type=publications&p=17433 Brian Spitler and Tawny Mack presented Impact of Accessibility Standards on the Design Profession at Insurance Office of America’s (IOA) 2019 Risk Seminar on February 28, 2019.  This presentation addressed compliance and affects of the ADA Standards for Accessible Design on architect and engineering practices. For information on the ADA, please click here.  For information on…

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Brian Spitler and Tawny Mack presented Impact of Accessibility Standards on the Design Profession at Insurance Office of America’s (IOA) 2019 Risk Seminar on February 28, 2019.  This presentation addressed compliance and affects of the ADA Standards for Accessible Design on architect and engineering practices.

For information on the ADA, please click here.  For information on the IOA organization, please click here.

 

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Georgia Court of Appeals Reverses Summary Judgment in Fraudulent Billing Case https://carlockcopeland.com/publications/georgia-court-appeals-reverses-summary-judgment-fraudulent-billing-case/ Mon, 04 Mar 2019 21:10:03 +0000 https://carlockcopeland.com/?post_type=publications&p=17429 Health Care and Regulation Update Blog post by Eric Frisch. The Georgia Court of Appeals has reversed the grant of summary judgment to the defendant in a case alleging billing fraud. Plaintiff sued her podiatrist, claiming the defendant did not perform the procedures for which she was billed. Plaintiff did not file an expert affidavit…

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Health Care and Regulation Update Blog post by Eric Frisch.

The Georgia Court of Appeals has reversed the grant of summary judgment to the defendant in a case alleging billing fraud. Plaintiff sued her podiatrist, claiming the defendant did not perform the procedures for which she was billed. Plaintiff did not file an expert affidavit with the complaint. Defendant moved for summary judgment and the trial court granted the motion, holding that the question was one of professional judgment and therefore an affidavit was required.

The Court of Appeals reversed. As an initial matter, the Court pointed out that a motion to dismiss for failure to state a claim is the proper vehicle to dispose of a complaint in which there is no expert affidavit. Next, the Court held that the question of whether an expert would need to testify about the procedures was separate from the question of whether an expert affidavit is required with the complaint. The latter question turns on whether the claim is one for professional negligence as opposed to fraud. The Court relied on a long line of cases that distinguish claims for intentional conduct from claims for negligence. And the Court reaffirmed the rule that if a claimant alleges intentional conduct in the complaint and does not attach an affidavit, then cannot later change the case into a negligence claim, citing Walker v. Wallis, 289 Ga. App. 676 (2008).

Take-Home:  The lines between what is considered to be ‘simple’ negligence, professional negligence, or intentional acts and when an affidavit is required remain as cloudy as ever.

The case is Williams v. Murrell, 2019 Ga.App. LEXIS  80 (Feb. 22, 2019).

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

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South Carolina Court of Appeals Affirms Dismissal of Legal Malpractice Case for Failure to Comply with the Statute of Limitations – Recent Commercial Litigation Blog Post by Doug MacKelcan https://carlockcopeland.com/publications/south-carolina-court-appeals-affirms-dismissal-legal-malpractice-case-failure-comply-statute-limitations-recent-commercial-litigation-blog-post-doug-mackelcan/ Mon, 25 Feb 2019 14:35:48 +0000 https://carlockcopeland.com/?post_type=publications&p=17405 Recent Commercial Litigation Blog Post by Doug MacKelcan. The South Carolina Court of Appeals recently issued an Opinion in Personal Care, Inc. v. Jerry N. Theos, et al., affirming the Circuit Court’s dismissal of a legal malpractice case for failing to comply with the statute of limitations. The Court of Appeals considered two arguments by…

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Recent Commercial Litigation Blog Post by Doug MacKelcan.

The South Carolina Court of Appeals recently issued an Opinion in Personal Care, Inc. v. Jerry N. Theos, et al., affirming the Circuit Court’s dismissal of a legal malpractice case for failing to comply with the statute of limitations. The Court of Appeals considered two arguments by Appellants: (1) whether the Circuit Court erred in denying the Motion to Restore and (2) whether the Circuit Court erred in concluding the discovery rule, and not the date the underlying case was resolved, applied to determine the applicable statute of limitations.

Personal Care retained attorney Jerry Theos to investigate claims against a former employee. Personal Care directed Theos to send a letter to the former employee demanding she refrain from certain wrongful activity, including soliciting its clients. Theos also sent the letter, dated September 14, 2009, to a third-party medical services provider frequently employed for Personal Care’s business. Theos ultimately filed suit on behalf of Personal Care against the former employee. The former employee asserted a counterclaim for defamation stemming from the September 2009 letter.

On March 8, 2013, prior to resolution of Personal Care’s case against the former employee, Personal Care commenced a legal malpractice lawsuit against Theos (and others) for the handling of the underlying lawsuit. In the legal malpractice Complaint, Personal Care claimed Theos’ September 2009 letter exposed the company to liability and forced it to incur additional legal costs in defending the counterclaim, among other allegations of negligence. Theos filed an Answer generally denying the allegations and moved to dismiss the claims based on the expiration of the statute of limitations. Shortly thereafter, the parties executed a Consent Order pursuant to Rule 40(j) SCRCP, striking the case from the docket pending resolution of the underlying case between Personal Care and its former employee.

Rule 40(j), SCRCP provides for tolling of the statute of limitations if the claim is restored upon motion made within one year of the date stricken. Here, Personal Care did not move to restore the legal malpractice case until more than one year after the Order dismissing it pursuant to Rule 40(j). Respondents opposed the Motion to Restore, asserting the statute of limitations had run on the legal malpractice claims. The Court agreed, essentially holding that the case was dismissed, and therefore, Respondents could only raise this statute of limitations defense at this motion (as opposed to a motion for summary judgment).

In response, Appellants cited Stokes-Craven Holding Corp. v. Robinson, 416 SC 517, 787 S.E. 2d 485 (2016) to argue the statute of limitations did not begin to run until an “adverse verdict, judgment or a ruling” was entered against the client in the underlying lawsuit. In this case, the Court of Appeals disagreed and held Stokes-Craven did not eliminate the discovery rule in favor of a bright-line rule that all legal malpractice claims accrue on the date an adverse judgment is entered against the client. Rather, it found that Stokes-Craven dealt with the “particular scenario” in which a client’s injuries are predicated on an adverse judgment that is then appealed. Here, Personal Care’s cause of action for legal malpractice was predicated on the September 2009 letter, and therefore, Personal Care first suffered a financial injury when it was forced to spend additional funds and commit time and other resources to mitigate the damages caused as a direct and proximate result of Respondent’s errors.

While Stokes-Craven dealt a blow to the statutes of limitations defense available in legal malpractice cases in South Carolina, Personal Care has narrowed Stokes-Craven and reinforced the applicability of the discovery rule.

The entire Opinion can be found here.

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Georgia Court of Appeals Holds Treating Doctor Must Be Identified as Expert Witness – Recent Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-holds-treating-doctor-must-identified-expert-witness-recent-health-law-regulation-update-blog-post-eric-frisch/ Thu, 21 Feb 2019 21:39:28 +0000 https://carlockcopeland.com/?post_type=publications&p=17397 Recent Health Law and Regulation Update Blog Post be Eric Frisch The Georgia Court of Appeals affirmed the exclusion of a treating physician who was not identified as an expert witness on standard of care during discovery and only on the eve of trial. Plaintiff claimed she was injured by the defendant physician following three…

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Recent Health Law and Regulation Update Blog Post be Eric Frisch

The Georgia Court of Appeals affirmed the exclusion of a treating physician who was not identified as an expert witness on standard of care during discovery and only on the eve of trial. Plaintiff claimed she was injured by the defendant physician following three foot surgeries. The defendant recommended additional treatment, including removal of bone spurs. The defendant physician then recommended the plaintiff seek a second opinion from Dr. Light.

Plaintiff sued the defendant and attached the affidavit of a specially-retained expert witness, who offered three opinions regarding deviation from the standard of care. The parties also had a scheduling order, which was modified three times, but included specific deadlines for the identification of experts, including “rebuttal” experts. During discovery, defendant asked plaintiff to identify “any witness whom you expect to call as an expert witness at trial, including any . . . treating physicians from whom you may elicit standard of care or causation testimony at trial.” Initially, Plaintiff responded that she had not decided who she was going to call. During the extended discovery period, Plaintiff identified the affiant/specially-retained expert, who only testified to the three deviations set forth in the affidavit.

After the close of the discovery period per the scheduling order, the trial was set for over a year later. Less than a month before trial, plaintiff served supplemental discovery responses, identifying the treating physician, Dr. Light, as a witness and stating that he would offer three new opinions regarding deviations from the standard of care. Defendant deposed Dr. Light and established what he reviewed to form his opinions, which included records and imaging studies that he had not reviewed while he was caring for plaintiff.

Defendant moved to exclude Dr. Light’s standard of care testimony because he had not been identified as an opinion witness during the discovery period. The trial court granted the motion and the Court of Appeals affirmed. On appeal, plaintiff conceded she failed to identify Dr. Light as an expert witness, but argued that she was not required to do so under what she called the “treating physician exception.” The Court rejected the idea of such an exception, holding that once Dr. Light reviewed materials that he did not have while he was treating the patient and offered standard of care opinions, he was an expert witness for purposes of disclosure during discovery. The Court distinguished cases in which a treating provider is called to offer opinions derived solely from firsthand observation and those opinions are not standard of care opinions, writing “a party may present expert testimony from a fact witness (i.e., a witness who does not have to be identified pursuant to Rule 26), who is testifying as to facts he or she observed or learned” while treating the patient, but that “such a witness may not, however, provide expert opinion testimony on the standard of care and whether that standard was breached, unless the witness has been identified as an expert” under Rule 26.

Take-Home:

This is the clearest declaration by the Georgia appellate courts regarding the distinction between an “expert witness” and what is labeled a “percipient witness” in Federal court. In the course of discovery, if a treating physician is going to review data that they did not have at the time they were taking care of the patient and they are offering standard of care testimony, that witness must be disclosed. In our practice, we ask two separate interrogatories, one regarding witnesses who have been specially-retained for purposes of litigation and a separate interrogatory regarding any witness who will offer opinion testimony at trial regarding standard of care, causation, or damages.

The case also supports the notion that Georgia courts are strongly enforcing scheduling orders and doing so against all parties. All parties should be mindful that, within the confines of a scheduling order, the deadlines are meaningful and discovery and disclosure should be focused on full compliance.

The case is Glover v. Atkinson-Sneed, 2019 Ga. App. LEXIS 73 (Ga.Ct.App. Feb. 20, 2019).

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

 

 

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Georgia Court of Appeals Holds that Statute of Repose Prevents Adding New Doctor to Case – Recent Health Law and Regulation Update Blog Post by Eric Frisch https://carlockcopeland.com/publications/georgia-court-appeals-holds-statute-repose-prevents-adding-new-doctor-case-recent-health-law-regulation-update-blog-post-eric-frisch/ Tue, 29 Jan 2019 20:23:54 +0000 https://carlockcopeland.com/?post_type=publications&p=17322 Recent Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals has held that a doctor could not be added to an existing lawsuit filed against her practice group and a physician in her practice group more than five years after the date of the negligent act or omission. In…

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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 could not be added to an existing lawsuit filed against her practice group and a physician in her practice group more than five years after the date of the negligent act or omission. In Preferred Women’s Healthcare v. Sain, the plaintiff originally sued an obstetrician and the group for malpractice arising out of an alleged failure to diagnose a malignancy on ultrasound. The ultrasounds allegedly showing the malignancy were performed in April 2012. The patient died of cancer in December 2013.

Plaintiff filed the original lawsuit in 2014 and only named one obstetrician and the practice group. In February 2017, Plaintiff deposed the ultrasound technologist, who testified that a second doctor’s “squiggly line” mark appeared on the ultrasound reports. In May 2017, Plaintiff deposed the second doctor, who confirmed that she provided care in April 2012 and reviewed the reports.

In June 2017, Plaintiff moved to add the second doctor. The second doctor opposed and claimed that the case against her was barred by expiration of the five year statute of repose. The trial court granted the motion to add and this appeal followed. The Court of Appeals reversed the trial court, holding that the five year statute of repose “destroys” the cause of action against the second doctor and that the otherwise liberal rules for adding parties and relation back of amendments do not apply once the statute of repose has expired.

Take-home: the statute of repose has always been a hard stopping point for medical malpractice claims and this case reaffirms this principle. The decision is timely as other cases support the notion that parties and claims may be added at various points before expiration of the statute of repose.

The case is Preferred Women’s Healthcare v. Sain, 2019 Ga. App. LEXIS 30 (Ga.Ct.App. Jan. 28, 2019).

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

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