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 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 Remands Case for Pain and Suffering Award

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.

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Georgia Court of Appeals Permits Discovery of Non-Party Billing Rates

A small victory last week for the defense bar!  In the case of WellStar Kennestone Hospital v. Roman, 2018 Ga. App. LEXIS 34 (Ga. App. Jan. 30, 2018), the Court of Appeals affirmed a trial court decision refusing to modify a subpoena served on non-party WellStar.  Appellee Mario Roman was involved in a motor vehicle collision with Autumn McKinney.  As part of his discovery efforts, Roman served a subpoena on WellStar, seeking to depose WellStar regarding the rates for services provided to McKinney if said services were provided to “uninsured patients; to insured patients; to patients under workers compensation plans; to patients under Medicare or Medicaid plans; and to litigant and non-litigant patients.”  WellStar sought to modify the subpoena, arguing that such information was “not reasonably calculated to lead to the discovery of admissible evidence.”  The trial court disagreed with WellStar.

On appeal, the Court of Appeals affirmed.  Highlighting the trial court’s distinction between discoverable information and admissible information, the Court of Appeals agreed that there is no authority to support WellStar’s contention that the collateral source rule bars the discovery of medical rates and charges of third parties not involved in the subject litigation.  Noting the wide latitude given to make complete discovery possible, the Court reminded WellStar that its burden was to show more than that the materials or information sought would not themselves be admissible.  Deloitte Haskins & Sells v. Green, 187 Ga. App. 376, 379 (1988).

Practically speaking, this ruling is significant in the context of personal injury litigation, where inflated bills and litigation funding companies are becoming the norm rather than, heretofore, the exception.  As more and more plaintiffs get caught up in the medico-legal loop and become indebted to non-party providers, defense attorneys face inherently more difficulty in reaching reasonable settlement agreements.  However, if the Courts begin requiring providers to divulge non-party rate information, there’s hope that these excessive and usurious billing practices might be stopped.

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Georgia Court of Appeals Remands for Further Finding on Hospital-Doctor Agency Issue

In a second ruling in the Thomas v. Atlanta Medical Center matter, the Georgia Court of Appeals remanded the case back to the trial court for further determination of whether the defendant emergency physician and radiologists were agents or in a joint venture. The emergency physician contracted with a practice group, who, in turn, contracted with the hospital. The group-hospital contract designated the doctor as an independent contractor. The doctor, however, did not have an agreement with the hospital. The radiologist was a member of a professional corporation who also contracted with the hospital. The radiology group-hospital contractor also designated the radiologist as an independent contractor. Plaintiff alleged that both doctors formed a “joint venture” with the hospital to provide medical services for profit.

The hospital moved for summary judgment on the grounds that the group-hospital contracts contained sufficient language under O.C.G.A. §51-2-5.1, which holds a hospital harmless for the acts of independent contractors under certain circumstances. The trial court granted summary judgment. The Court of Appeals reversed on narrow grounds; specifically, the Court ruled that the trial court did not address the relationship between the doctors and the hospital and the language in the group-hospital contracts was not sufficient as a matter of law to comply with the statute. The Court wrote that the hospital may still ultimately be entitled to summary judgment, but not on the record.

The trial court also granted summary judgment on the joint venture issue. Plaintiff complained that the trial court granted the motion sua sponte and without notice. The Court of Appeals agreed and remanded the issue back to the trial court for full briefing.

The take-home message is that Section 51-2-5.1 is defendant-specific and will be applied according to the plain language of the statute.

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Georgia Court of Appeals Allows Late Addition of “Simple Negligence” Claim

In the case of Thomas v. Atlanta Medical Center, the Georgia Court of Appeals reversed the dismissal of a “simple negligence” claim based on expiration of the statute of limitations. The case arose out of the alleged failure to diagnose a neck fracture and improper spine clearance in the emergency department. Plaintiff alleged the hospital was vicariously liable for the emergency physician and interpreting radiologist. The hospital denied and claimed they were independent contractors. During discovery, an alleged conflict in the evidence arose as to whether the emergency physician and nurse followed hospital protocol for removal of the cervical collar following radiological clearance. Plaintiff amended her complaint to add a claim for “simple negligence” against the hospital and nurse for failure to follow the protocol. The hospital moved to dismiss the claim based on expiration of the statute of limitations and the case of Thomas v. Medical Center of Central Georgia. The trial court granted the motion.

On appeal, the Court of Appeals further limited the application of the Thomas v. Medical Center of Central Georgia case. The Court distinguished that case because it was decided on application of the affidavit statute, not the relation back statute. The Atlanta Medical Center case represents a further erosion of the Medical Center of Central Georgia case and strengthens the ability of claimants to add claims even though the statute of limitations has expired, especially if the claims are couched as non-professional malpractice claims.

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