South Carolina Supreme Court Interprets Statute of Repose

The South Carolina Supreme Court interpreted South Carolina’s statute of repose applicable to medical malpractice actions, which requires an action to be commenced within “six years from [the] date of occurrence,” and, in a split decision, found the statute begins to run after each occurrence rather than the first occurrence.

In Marshall v. Dodds, Marshall was treated multiple times by Dr. Dodds over the course of many years, beginning in July 1999 and ending in September 2005.  In July 1999 Marshall presented to Dr. Dodds and Dr. Dodds noted elevated protein levels in Marshall’s urine but failed to run a test that would have shown that the protein was cancerous.  Over the course of Dr. Dodds’ treatment of Marshall, he repeatedly noted the increased protein levels but never ran the test to determine if the protein was cancerous.  The last time Dr. Dodds treated Marshall was in September 2005. In February 2010, Marshall was diagnosed with a rare type of blood cancer.  In February 2011, Marshall sued Dr. Dodds and another doctor for a failure to diagnose.

Defendants’ argued that the statute of repose began to run in July 1999 when Dr. Dodds first failed to diagnose Marshall with cancer, requiring Marshall to file suit by July 2005.  Because suit was not filed until February 2011, Marshall’s claims were time barred. The South Carolina Supreme Court disagreed.  The Court interpreted the statute, which it noted stated “occurrence” and not “first occurrence,” and determined that each time Dr. Dodds treated Marshall and failed to diagnose her, it was an “occurrence” under the statute.  Because suit was filed in February 2011, Marshall could maintain claims for any occurrences from up to six years prior, February 2005.  The last time Dr. Dodds treated Marshall and failed to diagnose her was in September 2005.  Accordingly, Marshall could maintain an action for those damages occurring within the statute of repose, but not for those occurring outside the statute of repose.

Take-home:  If a practitioner fails to diagnose a patient on multiple occasions, both within and outside of the statute of repose, that patient is not time barred from bringing an action for damages.  The patient, however, can only recover for those damages occurring within the statute of repose.

The case is Marshall v. Dodds, Case No. 27873 (S.C. Sup. Ct. filed March 27, 2019).

To read the Supreme Court’s opinion, please click here.

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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 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 Supreme Court Reverses Trial Court for Wrongly Giving an Ordinary Negligence Charge in a Medical Malpractice Case

On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.  On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.

On September 16, 2008, patient Ms. Brown had an epidural steroid injection administered by an anesthesiologist at a surgery center.  Ms. Brown was given the sedative Propofol prior to the procedure.  Her blood oxygen level was 100 percent when the procedure began.

Shortly after the procedure began, a pulse oximeter used to monitor the patient’s blood oxygen level sounded an alarm, indicating a drop in Ms. Brown’s oxygen in her blood.  Technicians and nurses in the room made efforts to increase the oxygen level.   The anesthesiologist stated that the machine was malfunctioning and that Ms. Brown’s true oxygen saturation level and breathing was fine.

Ms. Brown failed to resuscitate following the procedure, and EMTs responded to the practice’s 911 call for help.  The anesthesiologist told Ms. Brown’s daughter-in-law and the physician who admitted her to the hospital that the procedure had gone fine and Ms. Brown was simply having complications coming out of the anesthesia.  The anesthesiologist gave no indication that Ms. Brown might have experienced respiratory complications during the procedure.

Plaintiff’s counsel asserted both medical malpractice and ordinary negligence claims, including that the anesthesiologist improperly administered Propofol without positioning another anesthetist at the head of the table, failed to respond appropriately when the patient experienced respiratory distress and failed to contact emergency medical services promptly.

The trial judge charged the jury on both ordinary negligence and medical malpractice.

The Court of Appeals had concluded that the trial court charged correctly on ordinary negligence because a lay person would not need expert testimony to understand the meaning of data provided by pulse oximeters and blood pressure monitors and how best to respond to that information in the midst of a medical procedure.

The Georgia Supreme Court accepted certiorari and framed the issues as:  1) whether the trial court’s instruction on ordinary negligence was proper, and 2) if not, whether that error was harmful to the defendants.  The Supreme Court concluded that the ordinary negligence charge was improper and harmful to the defendants, ordering a retrial.    The Supreme Court disagreed with the Court of Appeals’ finding that responding to medical data from medical devices did not require medical judgment.

The case is Southeastern Pain Specialists, P.C. v. Brown, et al., Georgia Supreme Court No. S17G0733, decided March 5, 2018.

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Georgia Court of Appeals Affirms Summary Judgment in Misfilled Prescription Case

The Georgia Court of Appeals affirmed summary judgment in favor of a pharmacy provider on claims of professional negligence arising out of a misfilled prescription. In the case of Roberts v. Quick Rx, Mr. Roberts’ wife went to the pharmacy to pick up his prescriptions. The cashier handed Ms. Roberts two filled bottles through a drive-through window. However, the bottles were for a different patient and for different medications.

The following day, Ms. Bryant administered the medication to her husband, who was suffering from Alzheimer’s disease, diabetes, and high blood pressure. A little while later, she heard him call her name. She found her husband on the floor, confused. There was nothing in the area that would have caused him to fall. She called an ambulance and he was taken to the hospital for emergency surgery for a broken hip. The prescription error was later discovered and Plaintiffs sued Quick Rx for professional negligence, simple negligence, and punitive damages. The trial court granted summary judgment on the professional negligence and punitive damages claims.

Regarding the medical malpractice claim, Plaintiffs’ pharmacy expert testified the standard of care required a pharmacist or their delegate to counsel the person picking up the medication about the medication and to match the patient with the prescription. This is part of a Georgia regulation. However, the expert did not rely on any facts to show this was not done or that it was not done by the pharmacist or their delegate. Accordingly, the trial court did not err in granting summary judgment.

The Court held that the cashier’s failure to give the correct prescription to Ms. Bryant was a jury question on simple negligence. But, the same claim would not support a claim for punitive damages, so summary judgment was affirmed.

Quick Rx cross-appealed, claiming there was no evidence of causation to support Plaintiffs’ claims that the fall made Mr. Bryant develop Alzheimer’s or made it worse. In response, Plaintiffs argued they were not making such a claim, but Ms. Bryant actually testified to it and they did not affirmatively state in response to summary judgment that they were not seeking that as an item of damages.  The Court affirmed the trial court’s grant of summary judgment on the issue.

Lastly, Quick Rx claimed Plaintiffs’ causation expert did not provide a scientific basis for his opinion that the administration of the misfilled medication caused the fall. The trial court denied the motion and the Court of Appeals affirmed, holding that the expert had sufficient facts and a reasonable scientific basis for his opinions.

 

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Georgia Court of Appeals Affirms that Partner in Medical Practice is Not an Expert Witness

The Georgia Court of Appeals has held that a partner in a medical practice group, called as a corporate witness under Rule 30(b)(6), is not an “expert witness” such that their opinion testimony is automatically admissible into evidence. In Yugeros v. Robles, the plaintiff alleged that Dr. Yugeros failed to diagnose and treat a complication of plastic surgery. When the patient presented to the hospital, Dr. Yugeros did a workup, but did not order a CT scan.

During the lawsuit, Plaintiffs took the deposition of Dr. Yugeros’ partner, Dr. Alexander, as the corporate representative of the practice group pursuant to Rule 30(b)(6). During her deposition, Dr. Alexander testified the standard of care would be to order a CT scan. Plaintiffs asked for the representative familiar with the records to testify. However, Dr. Alexander had not realized Dr. Yugeros did not order a CT scan.

Prior to trial, Dr. Yugeros moved to exclude Dr. Alexander’s testimony. The trial court granted the motion. After going up to the Supreme Court, the Court of Appeals held the trial court did not abuse its discretion in excluding the testimony because Plaintiffs failed to show that Dr. Alexander was qualified as an expert to opine on the standard of care.  The reasoning was that, although Dr. Alexander was a corporate representative, to be admissible, her testimony still had to be otherwise admissible. Since standard of care testimony is expert testimony, the Plaintiffs bore the burden of qualifying her and they didn’t do so.

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Georgia Court of Appeals Denies Motion to Dismiss in Gross Negligence Case

The Georgia Court of Appeals has affirmed the trial court’s denial of a motion to dismiss a complaint against an emergency physician in the case of Graham v. Reynolds. Plaintiffs claimed Dr. Graham, an emergency physician, failed to diagnose an acute coronary syndrome on presentation to an emergency department. Dr. Graham discharged the patient, who then suffered a massive heart attack and died.

Plaintiffs attached to their complaint the affidavit of a cardiologist specializing in electrophysiology. Dr. Graham moved to dismiss on the grounds that the affidavit expert was not qualified and because the affidavit did not opine on gross negligence. The trial court denied the motion.

The Court of Appeals affirmed, holding that plaintiff’s affidavit expert was not disqualified solely because he is a cardiologist and not an emergency physician. The Court held that the affiant demonstrated sufficient knowledge in the area of diagnosing a heart attack on EKG to survive a motion to dismiss.

The Court also rejected the contention that the affidavit was deficient because it did not contain facts showing gross negligence. The Court held that Section 9-11-9.1 only requires the affidavit set forth a negligent act or omission, which is a pleading required. Section 51-1-29.5, on the other hand, sets forth an evidentiary requirement, not a pleading requirement.

The take-home message is that it remains difficult to challenge an expert affidavit at the motion to dismiss phase.

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Georgia Court of Appeals Reversed the Grant of Summary Judgment to a Physician Group

The Georgia Court of Appeals reversed the grant of summary judgment to a physician group, holding that the liberal pleading rule does not require a plaintiff to name each individual provider for whom a named physician group may be liable. Plaintiff filed a wrongful death case against two named doctors, among others, including 24 On Physicians, PC (“24 On”).

Plaintiff dismissed and refiled under the renewal statute, naming the same two doctors and named their practice group on a theory of vicarious liability. The renewal complaint included a general allegation that “physicians” and other actual or ostensible agents of the group contributed to the death.

Initially, the group moved to dismiss on the grounds the expert affidavit did not specifically mention the group. Plaintiff filed an amended affidavit in response. Plaintiff then filed another affidavit, which broadened the claim against the group to include unnamed physicians, employees, and agents.

The group then moved for summary judgment on claims of vicarious liability for anyone other than the original named physicians based on expiration of the statute of limitations. The trial court granted the motion. The Court of Appeals reversed, holding that Plaintiff “was not required to specifically name each physician for which 24 On was allegedly responsible in the renewal complaint.” Rather, Georgia law only requires a pleading set forth a short and plain statement of the claims. The Court then held that the renewal complaint controlled the statute of limitations question and that the expert affidavit only needed to set forth one act or omission claimed to exist. Lastly, the Court distinguished the Thomas v. MCCG case, holding that the “alleged negligence of the “treating physicians” who were agents or employees of 24 On was contemplated in the renewal complaint.”

The case is Oller v. Rockdale Hospital, 2017 Ga.App. LEXIS 383 (August 14, 2017).

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Georgia Supreme Court Rules Trial Court May Exclude Intentionally Withheld Surprise Witness

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Resurgens, P.C. et al. v. Elliott, decided May 30, 2017, and determined that the trial court did not abuse its discretion when it excluded a rebuttal witness, as a discovery sanction, whose name was deliberately withheld during discovery.  Plaintiff was a patient of the Defendants, and filed suit in 2011 claiming that the Defendants failed to timely diagnose and treat an abscess in his thoracic spinal cord which resulted in paralysis.  Following four years of discovery, the case went to trial and resulted in a defense verdict.  The Plaintiff filed a direct appeal which challenged the trial court’s exclusion of a rebuttal witness in the case.

At trial, a Defendant, who was the treating physician, was asked by the Plaintiff’s attorney whether the Defendant was at the bedside of the Plaintiff at a particular time.  The Defendant denied being present.  The Plaintiff then excused the Defendant, and called a rebuttal witness who was a nurse that would purportedly testify that the Defendant was in fact bedside.  Defendant’s counsel objected, based on the fact that the witness had not been previously disclosed in discovery, the pretrial order, or in any communication between counsel.  Plaintiff counsel argued that this particular witness fell within its interrogatory response “catch-all,” that she was a “treating medical provider…a person named in the medical records…and an impeachment witness.”  Therefore, while she was not specifically named, she was referenced.  Furthermore, if the discovery response was not clear enough, the onus was on the defense to request clarity or move the Court to compel a different response.  The trial court ruled in favor of the Defendants, stating that the Plaintiff had determined to call the nurse as a witness before trial and intentionally withheld the witness’s name.  As such, the Defendants were entitled to the discovery sanction of excluding the witness in order to “allow the trial to proceed without surprise, without ambush.”  The Plaintiff appealed to the Georgia Court of Appeals who reversed the trial court.

The Court of Appeals stated that in the event a previously undisclosed witness is called to testify, the only remedy is to move for a postponement for a sufficient length of time to allow the objecting party to prepare, or to move for a mistrial.  The Court of Appeals further stated that it is never appropriate for a trial court to exclude such a witness, even in cases where there was clear deception.  The exclusion of a witness with probative value was an extreme response, and the discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) are not available.  The Defendants applied for certiorari to the Supreme Court of Georgia who granted review.

The Supreme Court reversed the Court of Appeals.  The Court held that when a party provides false or deliberately misleading discovery responses, the aggrieved party is entitled to more than mere postponement or mistrial.  The aggrieved party is entitled to discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) which includes, among others, exclusion of a witness.  The Court explained that a party who receives a substantive answer to a discovery request is entitled to believe that answer, and are not required to file blind motions to compel in hope of discovering the opposing party’s deception.   Furthermore, false or intentionally misleading responses are worse than a failure respond, because the aggrieved party may never learn that it failed to receive the truth.  Therefore, the aggrieved party should be entitled to discovery sanctions, including exclusion of the undisclosed witness.  To allow otherwise, simply because the witness may offer some probative value, would encourage and reward deceptive behavior.

The take-home is that parties who face deceptive tactics by opposing counsel during trial are no longer confronted with the only options being a continuance or a mistrial, which are burdensome and expensive.  There are now a severe repercussions for those attorneys who intentionally deceive opposing parties during discovery.

Further take-home is found in footnote 10 of the opinion, where the Supreme Court stated “[we] caution the bench and bar against relying on such “catch-all” categories in this manner; candor and cooperation, as opposed to “gotcha” moments and gamesmanship, should be encouraged between litigating parties.”  What is clear now for plaintiff and defense counsel in Georgia is that routine discovery responses such as, “any medical provider named in the medical records,” may no longer be sufficient once trial has begun.  Parties should take the time to list the individual names of potential witnesses and other evidence well before trial or risk their exclusion

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Georgia Court of Appeals Tosses Hospital Claim on Deficient Affidavit

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.

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