In Ziglar v. St. Joseph’s Cander Health System, the Georgia Court of Appeals affirmed the dismissal of a claim against a hospital due to a deficient expert affidavit. Plaintiff alleged he arrived at the hospital unconscious and developed a stage IV pressure ulcer during his stay. In his complaint, Plaintiff alleged that the hospital, nursing staff, and support staff, failed to assess properly and treat the ulcer and failed to advocate for him while he was unconscious.
With the Complaint, Plaintiff filed an affidavit of an expert nurse. The hospital answered and filed a motion to dismiss under Section 9-11-9.1 based on the failure to set forth at least one negligent act or omission and the factual basis for the allegation. According to the opinion, the following was the salient paragraph from the affidavit:
“Based on my review of the above-described medical records, it is my opinion within a reasonable degree [*3] of medical probability that the staff of St. Joseph’s Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat Jason Keith Ziglar’s wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.”
The Court held that this paragraph and the rest of the affidavit were deficient because the affidavit did not specify discrete instances of alleged “failure to . . . treat, assess, and advocate.” Likewise, the affidavit did not include any factual basis, such as dates and times. Plaintiff attempted to argue that the case was really one for simple negligence, but the Court disagreed.
The take-home of this case is that challenges to the sufficiency of an expert affidavit are case specific. This opinion does give some credence to the idea that a plaintiff has to set forth some specifics to state a claim.
The Georgia Court of Appeals held that the jury should decide two medical malpractice cases on issues of causation.
Everson v. Jordan – in this case, Plaintiffs are the parents of a man who died after running in front of a truck two days after presentation to the emergency department. The Court held that whether the man’s death was reasonably foreseeable to the emergency physician was a jury issue.
Fields v. Taylor – Plaintiffs were the surviving children and estate of a nursing home patient, who developed pressure sores before passing away. Plaintiffs sued the nursing home and the treating physician. The nursing home settled. The trial court granted summary judgment to the physician, ruling there was no evidence to link any alleged acts of the physician to the outcome. On appeal, Plaintiffs alleged they had an expert to opine on violation of standard of care and the treating medical examiner opined the cause of death was sepsis from infected pressure sores. The Court of Appeals reversed summary judgment, holding there was no requirement of a specific “proximate cause” expert and that the jury should decide the link between the alleged negligence and the outcome.
The take-home in both cases is the statement that proximate cause can be proven by linking together disparate pieces of evidence from multiple witnesses. In addition, it remains unclear the extent to which cause-in-fact is an essential element within the proximate cause analysis (compare the holding in the Swint v. Mae case).
The Georgia Court of Appeals reversed summary judgment in favor of a doctor and nursing home in the case of Fields v. Taylor, decided January 18, 2017, holding that the trial court erred in granting the motion on proximate cause. Plaintiffs alleged their mother died as a result of sepsis from a decubitus ulcer that developed during a stay at the defendant rehab facility. Plaintiffs presented the testimony of a well-known medical examiner, who opined that the cause of death was sepsis from the wound in his opinion. Defendants moved to exclude the expert’s opinions as unreliable, which was denied, and moved for summary judgment on the grounds that Plaintiffs failed to present an expert to opine on the connection between the cause of death and the specific acts of negligence, which they called “proximate cause.” (Note – we would call this “cause-in-fact”).
The Court of Appeals affirmed the denial of the motion to exclude, holding that the expert properly used the “differential diagnosis” method and then drew conclusions based on experience. The Court reversed the grant of summary judgment, holding that the Plaintiffs were not required to produce expert testimony specifically on “proximate cause” and that the testimony of several experts can be pieced together to create a fact dispute. In this case, Plaintiffs presented a standard of care expert and the medical examiner expert. Together, their testimony was sufficient to create a genuine issue of fact.
The take-home is that it continues to be difficult to win summary judgment on proximate cause in medical malpractice cases, even when the expert testimony appears weak and disconnected.