Georgia Court of Appeals Holds that Forged Mammogram Reports Do Not Support Fraud Claim

The Georgia Court of Appeals has held that multiple plaintiffs could not recover against a hospital based on forged mammogram reports by its employee. The plaintiffs received mammograms at the hospital in 2008 and 2009. The employee was supposed to transmit the images to a radiologist for interpretation. Instead, for reasons unknown, the employee forged the reports as normal. The hospital discovered the forgeries, terminated the employment, refunded the money, and the employee was prosecuted.

Plaintiffs sued for malpractice, fraud, RICO violations, and other torts. Plaintiffs alleged that the proper interpretation of the mammograms showed evidence of cancer or other conditions that needed follow-up. Notably, the plaintiffs had follow-up mammograms after the fraud was discovered. To this, the plaintiffs claimed exposure to excess radiation. The Court held that Plaintiffs could not prevail on this claim without proof that they actually suffered “injuries” from having to undergo the second mammograms. In addition, the Court held that the plaintiffs failed to prove they suffered compensable damages as a result of the alleged fraud.

This is an interesting case because it would seem that the fraud itself – caused a sufficient legal injury to justify nominal damages and, potentially, punitive damages, against the employee but not the employer. However, it does not appear that issue was the subject of the appeal.

The case is Houston Hospitals, Inc. v. Felder, 2019 WL 2482099 (June 14, 2019).

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Georgia Court of Appeals Reverses Defense Verdict on Hearsay Ruling

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

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).

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Georgia Court of Appeals Holds Treating Doctor Must Be Identified as Expert Witness

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).

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Georgia Court of Appeals Holds that Statute of Repose Prevents Adding New Doctor to Case

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

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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 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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