Carlock Copeland Health Law and Regulation Update

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Carlock, Copeland & Stair, a civil litigation firm, has a reputation for forceful, creative and cost-effective advocacy on behalf of its clients. Formed in 1970 with five attorneys operating out of a downtown Atlanta office, we now have over 80 civil litigation attorneys handling legal matters across the Southeast from offices in Atlanta, GA, Charleston, SC and Chattanooga, TN.

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Practice Group Pays $125k to Settle HIPAA Claim

A Connecticut physician group recently agreed to pay $125,000 to settle a claim of “reckless disregard” for a patient’s privacy rights. The group contacted the local television station to give a statement about a dispute between its patient and one of its doctors. A reporter contacted the doctor, who “impermissibly disclosed the patient’s protected health information.” The Office of Civil Rights investigated and concluded that the doctor had shown “reckless disregard” after the doctor was instructed by the group’s privacy officer to respond with “no comment.” The group failed to discipline the doctor or take corrective action.

Take-home: while a patient has an unfettered right to disclose their private health information in public and to the media, a covered entity does not. There is no “media exception” to the Privacy Rule.

To read the report and corrective action plan, please click here.

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Georgia Court of Appeals Holds that Metastatic Cancer is New Injury

The Georgia Court of Appeals has held that metastatic cancer constitutes a “new injury” for purposes of calculating the statute of limitations. Plaintiff went to an obstetrician/gynecologist in August 2013 with complaints of abnormal bleeding from a large uterine fibroid mass. Plaintiff and the doctor discuss treatment options, including robotic hysterectomy. The doctor then referred the patient to a gynecological oncologist.

The oncologist examined the patient and reviewed films. In November 2013, the oncologist reported to the obstetrician that there was a “very low suspicion” for malignancy. The obstetrician proceeded with the robotic procedure on December 13, 2013 based on the oncologist’s report. During the procedure, the fibroids were cut (“morcellated”) and not removed intact. Pathology reports showed the fibroids were cancerous. Post-operative CT and PET scans were negative until October 24, 2014, when the patient presented with pelvic tumors. The patient passed away on May 19, 2015.

On December 9, 2015, the patient’s husband was appointed administrator of her estate. He then filed suit against the obstetrician, the practice group (Wellstar Physicians), and named several “John Doe” defendants. In April 2017, plaintiff filed an amended complaint to name the oncologist and substitute him in for one of the John Doe defendants.

The oncologist moved to dismiss on the grounds of expiration of the two year statute of limitations. The trial court converted the motion to a partial motion for summary judgment and held that the “new injury” exception to the statute of limitations did not apply.

The Court of Appeals reversed, holding the evidence showed the “new injury” exception did apply.  The general rule in misdiagnosis cases is that the misdiagnosis is the injury because the plaintiff suffers pain and incurs medical expenses from that point forward. In some cases, however, when the injury from the misdiagnosis is relatively benign or treatable but then develops into a more debilitating or “less treatable” condition, the injury is the “subsequent development of the other condition.” In this case, the Court held that the metastasis led to “a substantially reduced likelihood of her survival” and was a result of the morcellation, rather than removal of the fibroids intact.

The Court also held that the statute of limitations was tolled until the administrator was appointed and that the amendment related back to the filing of the original complaint.

The case is Hayes v. Hines, 2018 Ga. App. LEXIS 615 (Oct. 26, 2018).

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Georgia Court of Appeals Affirms Plaintiffs’ Verdict in Gross Negligence ER Case

In the second appellate version of Southwestern Emergency Physicians, P.C. v. Quinney, the Georgia Court of Appeals affirmed a $4.5 million verdict for the plaintiffs. Plaintiffs sued Southwestern Emergency Physicians, a doctor, and the hospital where the care encounter took place. Plaintiffs alleged that the negligence of the physician and two non-party nurses caused Mr. Quinney to become a paraplegic.

On appeal, the main issues were whether the trial court erred in permitting Plaintiffs to argue both gross negligence and the “ordinary” professional malpractice standard of care in light of the previous appellate decision in the case, whether the trial court erred by instructing the jury that the gross negligence standard applied to non-parties for purposes of apportionment, and whether the trial court should have listed the hospital as a separate entity from its employee nurses for purposes of apportionment. The Court of Appeals affirmed the verdict, denying each of the grounds asserted.

In the first appellate case, the defense moved for summary judgment on the issue of “ordinary” professional malpractice because the care provided arose solely out of emergency medical care to which the gross negligence standard applies under Section 51-1-29.5. On appeal, the Court held that the gross negligence standard applied because “emergency medical services” had been rendered, but ruled there were fact disputes about whether the doctor was grossly negligent. After remand and finishing discovery, the defense moved to exclude any testimony or argument about anything other than gross negligence. The trial court denied the motion in part because two defense experts had testified since the first appeal that Mr. Quinney was stable and that the jury should hear the evidence and then decide whether to apply the gross negligence standard or the “ordinary” standard of care. The defense then stated that it intended to discuss gross negligence in opening and Plaintiffs argued they should be allowed to discuss ordinary negligence if that was the case. The trial court agreed and gave “careful” preliminary and jury instructions that were “adjusted to the evidence, apt, and a correct statement of the law” regarding gross negligence. In addition, during the charge conference, Plaintiffs withdrew charges related to “ordinary negligence” leaving only gross negligence as the issue. Accordingly, the Court of Appeals affirmed the denial of the motion to preclude any mention to ordinary negligence.

Next, the defense argued that the trial court should not have instructed the gross negligence standard as it applied to apportioning fault to non-parties, such as the individual nurses. After Plaintiffs withdrew the ordinary negligence jury charge in the charge conference, the defense argued for the charge to apply to the non-parties on the theory that apportionment only requires a finding of fault, not liability. The Court held that the duty the non-parties owed to Mr. Quinney was one of “slight care” (gross negligence) and that the defense was required to prove they did not provide such care if the jury was to apportion to them. Notably, the jury did apportion to two non-parties.

Lastly, the defense argued the hospital should have also been listed as a separate party for apportionment. The Court held that because the defense did not offer any evidence that the hospital would be liable independent of its role as employer of the two non-party nurses who were listed on the verdict form, there was no error.

Take-home: this case highlights the complicated nature of trying a case under the “gross negligence” standard and with apportionment. These cases are highly fact specific and it can be challenging to get the right jury charges for all of the scenarios that might be presented.

The case is Southwestern Emergency Physicians, P.C. v. Quinney, 2018 Ga. App. LEXIS 538

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Georgia Court of Appeals Affirms Plaintiffs’ Verdict in Gross Negligence ER Case

In the second appellate version of Southwestern Emergency Physicians, P.C. v. Quinney, the Georgia Court of Appeals affirmed a $4.5 million verdict for the plaintiffs. Plaintiffs sued Southwestern Emergency Physicians, a doctor, and the hospital where the care encounter took place. Plaintiffs alleged that the negligence of the physician and two non-party nurses caused Mr. Quinney to become a paraplegic.

On appeal, the main issues were whether the trial court erred in permitting Plaintiffs to argue both gross negligence and the “ordinary” professional malpractice standard of care in light of the previous appellate decision in the case, whether the trial court erred by instructing the jury that the gross negligence standard applied to non-parties for purposes of apportionment, and whether the trial court should have listed the hospital as a separate entity from its employee nurses for purposes of apportionment. The Court of Appeals affirmed the verdict, denying each of the grounds asserted.

In the first appellate case, the defense moved for summary judgment on the issue of “ordinary” professional malpractice because the care provided arose solely out of emergency medical care to which the gross negligence standard applies under Section 51-1-29.5. On appeal, the Court held that the gross negligence standard applied because “emergency medical services” had been rendered, but ruled there were fact disputes about whether the doctor was grossly negligent. After remand and finishing discovery, the defense moved to exclude any testimony or argument about anything other than gross negligence. The trial court denied the motion in part because two defense experts had testified since the first appeal that Mr. Quinney was stable and that the jury should hear the evidence and then decide whether to apply the gross negligence standard or the “ordinary” standard of care. The defense then stated that it intended to discuss gross negligence in opening and Plaintiffs argued they should be allowed to discuss ordinary negligence if that was the case. The trial court agreed and gave “careful” preliminary and jury instructions that were “adjusted to the evidence, apt, and a correct statement of the law” regarding gross negligence. In addition, during the charge conference, Plaintiffs withdrew charges related to “ordinary negligence” leaving only gross negligence as the issue. Accordingly, the Court of Appeals affirmed the denial of the motion to preclude any mention to ordinary negligence.

Next, the defense argued that the trial court should not have instructed the gross negligence standard as it applied to apportioning fault to non-parties, such as the individual nurses. After Plaintiffs withdrew the ordinary negligence jury charge in the charge conference, the defense argued for the charge to apply to the non-parties on the theory that apportionment only requires a finding of fault, not liability. The Court held that the duty the non-parties owed to Mr. Quinney was one of “slight care” (gross negligence) and that the defense was required to prove they did not provide such care if the jury was to apportion to them. Notably, the jury did apportion to two non-parties.

Lastly, the defense argued the hospital should have also been listed as a separate party for apportionment. The Court held that because the defense did not offer any evidence that the hospital would be liable independent of its role as employer of the two non-party nurses who were listed on the verdict form, there was no error.

Take-home: this case highlights the complicated nature of trying a case under the “gross negligence” standard and with apportionment. These cases are highly fact specific and it can be challenging to get the right jury charges for all of the scenarios that might be presented.

The case is Southwestern Emergency Physicians, P.C. v. Quinney, 2018 Ga. App. LEXIS 538

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Georgia Court of Appeals Reverses Defense Verdict Based on Assumption of the Risk

In this convoluted case, the Georgia Court of Appeals reversed the denial of a motion for new trial filed by the plaintiffs after a defense verdict for the defendant cardiologist. Mr. Berryhill was prescribed medication to control his blood pressure at a local clinic. He then went to see the defendant cardiologist, Dr. Daly, who provided him with additional medication. Dr. Daly also performed a cardiac catheterization and placed a stent. Following surgery, Dr. Daly told Mr. Berryhill not to engage in any “strenuous or risky activity, or any lifting, bending, or stooping over.” Mrs. Berryhill was present. Five days later, Mr. Berryhill went hunting with a friend. He was in a deer stand about 18 feet off the ground when he fainted and fell, suffering serious injuries.

The Berryhills sued the cardiologist, a pharmacy, and the manufacturer of the deer stand. Against the cardiologist, plaintiffs alleged Dr. Daly prescribed too much blood pressure medication, which caused him to faint. The pharmacy and manufacturer were dismissed before trial. Dr. Daly’s motions in limine included a motion to exclude the testimony of an expert pharmacist and to have the claims against the manufacturer admitted into evidence as admissions. The Court instructed the jury on assumption of the risk and avoidance of the consequences.

Dr. Daly won and plaintiffs moved for a new trial including as grounds that the charge on assumption of the risk was not appropriate. The trial court denied the motion and the Court of Appeals reversed.

The Court of Appeals held that a jury instruction for assumption of the risk is authorized only when the plaintiff assumes a known risk arising from a defendant’s conduct or failure to act. In so holding, the Court wrote “[t]he knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might associated . . . but rather is based in part on the reasoning that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct towards him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” The Court went on to write “[h]ere, climbing in to a deer stand was not a risk associated with Dr. Daly’s duty to Berryhill” and “it would be incorrect to identify this risk . . as justifying the instruction.” However, it was the risk of syncope (fainting) as a side effect that was the “particular risk in question.”  While the evidence showed Dr. Daly advised Mr. Berryhill not to engage in strenuous activity, the evidence did not establish that Mr. Berryhill knew he risked losing consciousness if he chose not to comply. Accordingly, the trial court should not have charged on assumption of the risk. The Court then concluded that the error may have been harmful because it could have led the jury into believing that any risk Mr. Berryhill assumed would support a finding of no liability.

The take-home is not that Dr. Daly had a duty to inform Mr. Berryhill of the specific risks of fainting or syncope. Rather, the Court only ruled that the jury charge should not have been given. The Court did not discuss whether a more narrowly tailored charge would have been appropriate.

The case is Berryhill v. Daly, 2018 Ga. App. LEXIS 526.

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Georgia Court of Appeals Affirms Summary Judgment on Causation

The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to a defendant hospital. In Edokpolor v. Grady Memorial, the plaintiff claimed her husband died after aspirating Golytely. The doctor’s orders were to administer the medication through a nasogastric tube. The nurse, however, administered it orally.

In support of the complaint, the plaintiff filed an expert affidavit. The expert testified that the nurses were obligated to follow the doctor’s orders and that the administration of the medication by mouth caused aspiration and caused his death. The hospital moved for summary judgment, pointing out there was no evidence the patient aspirated during administration of the Golytely orally, that the patient may have aspirated after ingesting the medication by vomiting, and that administering the medication through a nasogastric tube does not eliminate the possibility of aspiration. Plaintiff did not submit any opposing evidence. The trial court granted the motion and the Court of Appeals affirmed, holding that the affiant’s bare and conclusory allegations about causation did not create a genuine issue of material fact.

The case is Edokpolor v. Grady Memorial, 2018 Ga.LEXIS 507.

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Georgia Court of Appeals Reverses Summary Judgment on Misdiagnosis Statute of Limitations

The Georgia Court of Appeals has reversed the grant of summary judgment to the defendants on expiration of the statute of limitations in a misdiagnosis case. Plaintiff was a doctor who began suffering neurological symptoms in January 2013. She presented to one of her partners for workup and was referred to another physician. The two treating defendants did not order an echocardiogram to determine whether she was experiencing a cardiac condition that could be causing her to suffer neurological symptoms from transient ischemic attacks.

Plaintiff suffered a stroke in September 2013. She sued her treating physicians, claiming they should have ordered an echocardiogram to determine the cause of her symptoms before she suffered the stroke. The defendants moved for summary judgment, arguing their alleged misdiagnosis occurred more than two years before Plaintiff filed suit, thereby triggering the statute of limitations. The trial court granted the motion.

In reversing, the Court of Appeals concluded that Defendants had not carried their summary judgment burden of showing the undisputed facts demanded a finding as a matter of law. The Court held that Defendants failed to show that their misdiagnosis caused the symptoms Plaintiff was experiencing between January and September, as opposed to some other cause. In otherwords, while Defendants were admitting they misdiagnosed the condition during that time frame, they failed to prove that their misdiagnosis was the only cause of the symptoms, thereby precluding summary judgment.

The case is Adams v. McDonald, 2018 Ga.App. LEXIS 401 (June 21, 2018).

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Georgia Court of Appeals Affirms Exclusion of Hidden Affidavit

The Georgia Court of Appeals has affirmed exclusion of an affidavit of a key witness in a medical malpractice case. Plaintiff worked for a physician office. She suffered a back injury and was referred to the defendant anesthesiologist for pain management. During the second injection by the Defendant, Plaintiff contends she complained of pain shooting down her leg and additional problems.

The issue at trial was when the Defendant learned about the new complaints. The anesthesiologist testified that she did not learn about the complaints for several days until it was too late to do anything. Plaintiff testified that she told Defendant about her complaints much earlier.

During discovery, Defendant sent interrogatories regarding witnesses generally, witnesses who had expressed opinions about Defendant’s care, and requesting documents. Plaintiff’s interrogatory responses identified her employer generally, but not as someone who would opine about Defendant’s care specifically. Later, Plaintiff’s employer executed an affidavit in which he testified he had a phone call with Defendant very early on about the new complaints. Plaintiff did not disclose the affidavit to Defendant in discovery.

At trial, Plaintiff’s employer did not recall his alleged conversation with Defendant. Plaintiff’s counsel then sought to use the affidavit to refresh his memory and to admit it into evidence. Defendant objected because the affidavit had not been disclosed, which Plaintiff admitted, but contended it was work product. The trial court excluded the use of the affidavit.

Plaintiff appealed. The Court of Appeals reversed, but the Georgia Supreme Court vacated the case and remanded the case back to the Court of Appeals for further consideration in light of the 2017 decision of Resurgens, P.C. v. Elliott. The Court of Appeals held the trial court did not abuse its discretion, ruling that Plaintiff’s interrogatory responses required supplementation regarding the employer’s testimony. When Plaintiff did not supplement the discovery after obtaining the affidavit, the initial interrogatory response became misleading, thereby justifying the sanction.

Take-home message: there is tension between Section 9-11-26(e)(2)(B), which does not require supplementation when the response was “complete when made” unless the respondent later learns the original response is no longer true, and Section 9-11-37, which requires supplementation of prior responses that are incomplete, ambiguous, or no longer complete accurate.

The case is Anglin v. Smith, 2018 Ga.App. LEXIS 405 (June 21, 2018).

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Georgia Court of Appeals Holds that Doctor’s Interest in Outcome is Fair Game on Cross-Exam

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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Georgia Court of Appeals Validates Complaint Filed Without Expert Affidavit

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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