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.

Senate Bill Provides Extra Protection for Healthcare Providers on the Frontline During the COVID-19 Pandemic

On March 25, 2020, the United States Senate passed H.R. 749 also referred to as ‘‘Coronavirus Aid, Relief, and Economic Security Act’’ or the ‘‘CARES Act’’.  In addition to offering economic relief for families and businesses, the bill addresses a number of issues which impact the way healthcare workers provide care and interact with the public during the public health emergency.

Section 3215 provides limitations on liability for volunteer healthcare professionals during the Covid-19 emergency. Under this provision, volunteer healthcare professions will not be held liable under State or Federal law for acts or omissions while providing health care services in connection with the COVID-19 public health emergency. These services must be performed in their capacity as a volunteer and cannot exceed the scope of their license as defined by the State of licensure.  This exclusion does not apply to acts/omissions of gross negligence, reckless misconduct, willful or criminal misconduct or conscious disregard for the safety of others.  A volunteer healthcare professional is defined as someone who does not received compensation or any other value in lieu of compensation for the health care services rendered.  There are exclusions for items used exclusively for rendering healthcare services and travel expenses.  This section remains in effect only during the public health emergency and only applies to claims for harm which occurred on or after enactment of the Act. 

The Act encourages the use of electronic and telecommunication technology to monitor and provide care for patients during the public health emergency.  There are exemptions which ease the requirements for providing Telehealth services during the public health emergency. Section 3705 provides a temporary waiver of the requirement for physicians to have face-to-face visits with home dialysis patients. Healthcare providers can now use Telehealth to conduct recertifications for hospice care. (Sec. 3706).  Telecommunications systems can also be used for monitoring home health patients. (Sec. 3707)

Be sure to check with your CSKL Healthcare Practice Group contact for the latest information concerning the medico-legal challenges we are facing.

Georgia Court of Appeals Reverses Directed Verdict in Dental Case

The Georgia Court of Appeals has reversed a directed verdict in favor of the defense in a dental malpractice, holding that the plaintiffs introduced enough evidence to show an injury and damages to get to a jury. Plaintiff Lucien Ouazin presented to his dentist with complaints of lower jaw pain. The dentist performed an x-ray. According to the evidence, Mr. Ouazin noticed a dark discoloration on the x-ray and asked the dentist about it. The dentist said it was fine but that he had a cavity in one tooth and another needed to be extracted. The dentist referred the patient for the extraction, which was ultimately done.

Three years later, Mr. Ouazin fell ill while shopping. He went to the hospital and was diagnosed with an endodontic tumor. The tumor and part of the jaw bone were extracted and part of the leg bone was used in the jaw. As a result, Mr. Ouazin was left with a limp and pain. Mr. Ouazin and his wife sued the dentist. At trial, the dentist moved for a directed verdict, claiming the Plaintiffs had not proven an injury and damages. The Plaintiffs claimed the tumor would have been much smaller if diagnosed earlier and the surgery would have been easier without the same impairments. The trial court granted the motion. The Court of Appeals reversed, holding that while surgery would have been needed no matter what, the jury could have found that the surgery performed in 2011 was “more drastic” than what would have been performed in 2011.

In addition, the dentist moved at trial to exclude Plaintiffs’ expert’s testimony on the grounds that he had not performed the treatment within the 5 years leading up to the incident. The trial court excluded the testimony but the Court of Appeals reversed. The Court held that the expert is not required to have performed the same treatment within 5 years of the incident. Rather, the expert must show that they have actual knowledge or teaching knowledge of the subject matter in order to testify.


For purposes of proving an injury, the general rule is that any change in the condition, pain, or treatment will be sufficient to get to a jury.

The case is Ouanzin v. Coast Dental Services, Inc., 2020 WL 1129766 (March 9, 2020).

Georgia Court of Appeals Affirms Res Ipsa Loquitor Not Applicable In Medical Malpractice Cases in Georgia

The Georgia Court of Appeals has upheld a directed verdict in favor of an oral surgeon and hospital after the Plaintiff’s expert’s testimony only inferred negligence on the part of the defendants based solely on an unintended result.

The defendant surgeon, Dr. McCormack, performed an oral surgical procedure using an oscillating saw on Plaintiff to treat her temporomandibular joint syndrome (“TMJ”). At some point during the procedure, Plaintiff suffered second and third degree burns to her face.

At trial, Plaintiff’s expert testified that, in his opinion, Plaintiff sustained the burns to her face because the hand piece of the oscillating saw overheated and came into contact with Plaintiff’s face. Plaintiff’s expert further testified that burns are a known risk when using an oscillating saw and that the standard of care required the surgeon to take steps to prevent burns, such as taking periodic breaks—called cycling—to allow the saw to cool down, stopping the procedure if the surgeon notices the saw overheating, and trying to keep the hand piece away from the patient’s face. But, Plaintiff’s expert testified that the touching of Plaintiff’s face alone during the procedure was not a violation of the standard of care.

Plaintiff’s expert opined that Dr. McCormack violated the standard of care by failing to take measures to prevent burns. However, he failed to identify the specific measures that Dr. McCormack failed to take that resulted in a violation of the standard of care. Rather, Plaintiff’s expert testified he could not draw the conclusion that Dr. McCormack knew the saw was overheating or that Dr. McCormack had failed to cycle the saw properly.  

At the close of Plaintiff’s case-in-chief, Defendants moved for a directed verdict on the basis that Plaintiff’s case was built on a res ipsa loquitor theory and that Plaintiff failed to present expert testimony that Dr. McCormack breached the standard of care by means of a specific act or omission, as required by Georgia law. The trial court agreed and directed a verdict in favor of Defendants.

On appeal, the Court of Appeals affirmed the trial court’s directed verdict for Defendants, holding that res ipsa loquitor is not applicable in medical malpractice cases in Georgia. Further, the Court of Appeals held that expert testimony must set forth “how and in what way the defendant deviated from the parameters of the acceptable professional conduct.” The Plaintiff’s expert testified generally that Dr. McCormack had violated the standard of care in failing to prevent injury, but failed to identify any specific measures on Dr. McCormack’s part that constituted a breach of the standard of care. Thus, Plaintiff’s expert’s testimony inferred negligence on Dr. McCormack’s part based solely on the unintended result of burns to Plaintiff’s face (i.e. res ipsa loquitor).

Take-Home: When alleging a medical malpractice case in Georgia, the plaintiff must introduce expert testimony that sufficiently informs the jurors of the proper method of treatment and that specifically sets forth how and in what way the defendant deviated from the standard of conduct. Testimony that merely infers negligence based on an unintended result is insufficient to show that a defendant violated the applicable standard of care.  

The case is Rhoades v. McCormack, 2020 WL 746568 (Feb. 14, 2020).

Georgia Court of Appeals Holds that Question of Timely Administration of Medications is Professional Negligence

The Georgia Court of Appeals has partially upheld the trial court’s grant of summary judgment to a hospital, holding that whether a pre-surgical antibiotic was timely administered, as ordered by the physician, is a question of professional negligence.
Plaintiff suffered a brain infection, resulting in permanent neurological injuries after she underwent a craniotomy to remove an arachnoid cyst. Prior to the craniotomy, the surgeon ordered that Plaintiff be given 1 gram of the antibiotic Ancef within one hour before surgery. The nurse anesthetist administered Ancef to the Plaintiff at 12:40. However, the electronic medical record indicated that the surgery started at 12:05. The circulating nurse later changed the surgery start time in electronic medical record and testified that it should have been 13:05, not 12:05. After the surgery, Plaintiff developed an infection which required additional surgeries and resulted in neurological damage. Plaintiff brought suit against the surgeon, hospital, and others, but specifically alleged claims for professional and ordinary negligence against the hospital.
The defendants filed a joint motion for summary judgment, alleging that the antibiotic was timely administered within one-hour of the procedure, as prescribed. The hospital separately alleged that there was no evidence that an employee of the hospital was negligent, as it was undisputed that the nurse anesthetist—who was responsible for administering Ancef to the Plaintiff—was not an employee of the hospital. The trial court granted the hospital’s motion for summary judgment, ruling that Plaintiff failed to provide any expert testimony that any employee of the hospital violated the standard of care.
The Court of Appeals upheld the trial court’s grant of summary judgment to the hospital on Plaintiff’s claim for ordinary negligence only. In so holding, the Court of Appeals determined that the timely administration of pre-surgical antibiotics requires professional knowledge, skill and experience. As such, Plaintiff’s claim fell “within the realm of professional medical decision making” and was one for professional negligence, not ordinary negligence.

Take-Home: The failure to perform clerical, routine, or other administrative acts, such as the activation of alarms or having the appropriate equipment, is considered ordinary negligence. But, where the action requires the evaluation of a medical condition of a particular patient, such as the timely administration of medications, the failure to do so is one of professional negligence.
The case is Giddens v. Medical Center of Central Georgia, 2020 WL 702252 (Feb. 12, 2020).

Federal Judge Rules Public Interest Outweighs Minor’s Privacy Interest in Confidential Settlement

A recent decision by a Federal District Court Judge involving the settlement details of a minor’s medical malpractice case sheds light on how the plaintiff’s age can derail a plan even when all parties agree.

Defendants, especially medical providers, often ask for confidentiality as a term of a settlement agreement, if reached. There are many reasons that an individual provider, practice or hospital would not want a settlement amount or the settlement itself to be public knowledge. It goes without saying that if you are sued for what you do professionally, you don’t want the community knowing that you settled a claim, regardless of the reasoning behind the decision to do so or the strength of the claim itself.

There are also scenarios where the plaintiff does not want the settlement to be made public. A common scenario is when a plaintiff sues multiple parties and, for whatever reason, settles with one but not all of the defendants. At this point, the remaining defendants typically want to know all the terms of the confidential and negotiated settlement agreement. Can either the amount or other terms be used as leverage in negotiations or for the defense at trial? Understandably, the plaintiff does not want or often cannot share these terms. In the case of a claim brought on behalf of a minor, however, things can get tricky.

Minor settlements require court approval, and often the appointment of a conservator. See O.C.G.A. § 29-3-3. It is meant to protect the interests of the child. The submission of the settlement agreement and its terms to the court, however, makes those documents public record unless the court seals them. The court may seal the documents if the interests of the child outweigh the public’s inherent interest the same, and the presumption of public access. Typically, this means there is information about the minor which is private in nature and may cause the child harm if the public were to know – such as, the extent of the injuries or other personal health information. But what if the parties decide that the entire agreement (not just the amount) should be confidential?

In Willis v. United States of America, a trial court recently dealt with a negotiated settlement of a minor that needed approval, but where confidentiality was a key component of the agreement. The plaintiff brought a medical malpractice case against the US government, a doctor, a hospital, and a medical practice. The unique nature of the suing the government meant that the settlement was not a universal one involving all the defendants at the same time.

The plaintiff and the non-government defendants brought their settlement before the court for approval and seal. The parties noted that the remaining defendant did not object. The problem that the parties faced was that the only reasoning provided to the court as for the basis that the settlement terms be sealed, was that confidentiality was an express term.

The court denied the settlement agreement as negotiated. It found the argument that the confidentiality clause, although a key factor in the agreement, did not outweigh the public’s right to access court information. Furthermore, the court stated that the amount of the settlement alone did not warrant any redaction or sealing of records. The court found that the settlement agreement contained no additional private or sensitive information of the minor child that was not already public record, and that no party had sought to seal those documents prior to submitting the settlement for approval.

The court’s order offered a take it or leave it option. The parties could withdraw the settlement and continue with litigation if confidentiality was truly a non-starter, or, they could settle the case without the confidentiality clause and make it public record. The case is pending at this time.

Take home – when a minor is involved, it does not necessarily matter what the parties have negotiated, especially when weighing the public’s right to access information. While there are some courts that as a matter of course agree to seal settlements involving a minor, it is not always the case. The reasoning behind the ruling may lay the foundation for access to a settlement agreement of a former defendant or third party in discovery, which is typically objected to and often denied when pursued via a motion to compel.

Case is currently pending in the Southern District of Georgia – August Division; CV117-015.

The Eleventh Circuit Court of Appeals Affirmed the Grant of Summary Judgment in Favor of a Physician Medical Director of a Correctional Facility on a Claim for Deliberate Indifference Brought Pursuant to 42 U.S.C. 1983.

When Plaintiff arrived at the correctional facility in December 2012, he suffered from a “hammer toe” that he had managed for over twenty years by wearing “oversized shoes with extra pads.” When issued the standard footwear at the correctional facility, Plaintiff began to experience pain due to the hammer toe, so he was allowed to wear flip flops instead. In December 2013, Plaintiff consulted with a podiatrist who recommended he undergo surgery. The surgery had to be approved by the Medical Director. In January 2014, the Medical Director denied the request, and instead recommended conservative treatment of prosthetic shoes and pain medication, which have been known to improve pain related to hammer toe. In June 2014, the Medical Director denied another request by Plaintiff to undergo surgery. In doing so, he made a reference to the correctional facility’s coverage for the procedure, which allowed for coverage if the procedure was required based on the Director’s medical opinion. Between July 2014 and October 2014, Plaintiff began to be fitted with orthopedic shoes until they found the right fit. The shoes provided Plaintiff with relief. In June 2015, Plaintiff was transferred to another correctional facility, at which he ultimately underwent surgery on his hammer toe. He filed suit against the medical director alleging that the denial of the recommended surgery constituted deliberate indifference to his medical needs. The trial court granted summary judgment in favor of the Medical Director.
Summary judgment was proper because nothing the Medical Director did rose to the standard necessary to demonstrate an Eighth Amendment violation. The Director was not deliberately indifferent in denying the first request because conservative treatments have been known to help hammer foot, and it was the same manner in which Plaintiff had managed his pain for over twenty years. Further, Plaintiff was allowed to wear flip flops soon after experiencing pain. After that point, his pain was no worse than before incarceration. The denial of the second request did not constitute deliberate indifference because the request came before the Medical Director’s earlier recommendation to fit Plaintiff with orthopedic shoes had even been pursued or deemed unsuccessful. Ultimately, even though there was a delay in Plaintiff getting his surgery between his first request and the date of his procedure, there was no evidence that Plaintiff’s condition was in such an urgent need for surgery that more conservative measures could not be pursued first.
The Court of Appeals also found no error in the Medical Director’s referencing of the correctional institution’s insurance coverage because there was no evidence his decision was made solely on the availability of coverage for the procedure. To be sure, coverage was available if, in the Medical Director’s judgment, it was necessary. Additionally, the mere fact that the Medical Director chose a different course of treatment than Plaintiff’s podiatrist is not grounds for liability under the Eighth Amendment.
The takeaway is that a correctional physician may exercise his/her medical judgment in exhausting conservative courses of treatment before resorting to surgery, where there is no urgent need for invasive treatment and where there is no indication the patient is experiencing increased pain as a result of the conservative treatment.
The case is: CHRISTOPHER STEWART, Plaintiff-Appellant, v. SHARON LEWIS, Defendant, WAYNE WELLS, Defendant – Appellee, No. 18-10892, ___ Fed. Appx. ___, 2019 WL 5395797 (11th Cir. October 22, 2019).

Georgia Court of Appeals Affirms Verdict in South Georgia Nursing Home Case

The Georgia Court of Appeals rejected cross-appeals from a $7.6 million verdict against a nursing home, which was reduced to $1.6 million after reduction for apportionment to non-parties. Plaintiffs sued the Holly Hill nursing home for the death of Bobby Copeland, 71. Mr. Copeland had been a resident there for 11 years. In October 2012, he was observed by a nurse to have vomited and his abdomen was slightly distended. The nurse contacted a provider to report that he should go to the hospital. The provider ordered labs and an x-ray.

The following day, a physician examined Mr. Copeland and sent him to the hospital. He was seen in the emergency department by the facility physician and other providers. Mr. Copeland was then admitted to the ICU. He died later that evening from aspiration of fecal material, associated with a bowel obstruction.

The case proceeded to trial. The defense challenged the excusal of a venire panel member under a “reverse Batson” challenge. The jury returned a $7.6 million verdict, which was reduced to $1.6 million after apportionment of fault to the emergency department personnel and the hospital.

The Court of Appeals affirmed the trial court’s decision on the peremptory challenge, finding that the plaintiffs had an adequate race-neutral explanation for the challenge. The defense also appealed the denial of a directed verdict on a negligent staffing claim, asserting that it was a claim for professional negligence and there was no expert witness testimony. The trial court denied the motion and the Court of Appeals affirmed, holding that the negligent staffing claim in this case sounded in “ordinary” negligence because the evidence showed that the facility made a business decision to choose only certain shifts for full staffing and that those decisions were not based on professional judgment.

The plaintiffs appealed the apportionment of damages against the emergency department personnel, claiming the defense had not met the heightened evidentiary burden under O.C.G.A. §51-1-29.5 (the “gross negligence standard”). The Court held that there was competing evidence regarding whether Mr. Copeland was stabilized in the emergency department and thus the trial court was justified sending the issue of both “gross negligence” and the lower “ordinary professional negligence” to the jury. The Court also held that Holly Hill’s expert testimony regarding the care provided at the emergency department was sufficient to get the issue of “gross negligence” to the jury.

The plaintiffs challenged the apportionment of damages, claiming that the hospital should not have been a separate unit for purposes of apportionment from the personnel it employed, who were listed individually. The Court held that the defense had presented evidence that the hospital was independently liable, which justified a separate line on the verdict form. The plaintiffs also claimed that the jury only found the hospital vicariously liable for the acts of one of the individual physicians, but the Court pointed out that the question was not asked that way. Although plaintiffs’ counsel “wondered” whether the jury apportioned damages based on vicarious liability, the verdict form was taken at face value.

Take-homes: this was a detailed case with a lot of moving parts. Verdict forms in apportionment cases require close attention to the claims made. Remember, objections to the form of the verdict must be made while the jury is still empaneled and only a jury can reform a verdict form.

The case is Lowndes County Health Services, LLC v. Copeland, Court of Appeals of Georgia, October 10, 2019 — S.E.2d —- 2019 WL 5077718.

Georgia Court of Appeals Holds Hospital Can be Liable for Attempted Suicide

The Georgia Court of Appeals affirmed the denial of summary judgment to a hospital after a patient was severely injured attempting suicide after discharge. Plaintiff suffered from paranoia and bipolar disorder. He suffered an acute decompensation and was transported from his apartment to the emergency department at Grady Memorial Hospital. There, a physician signed an involuntary commitment order (“1013”) and transfer to the psychiatric floor for “suicidal, bipolar/anxiety.” Plaintiff was then treated with Ativan.

Around the time of transfer to the psychiatric floor, a social worker “intercepted” and reassessed Plaintiff. The social worker determined Plaintiff was stable and should be discharged. After shift change, a second physician rescinded the 1013 order, reassessed Plaintiff, determined there were no current suicidal ideations or threats, and found that Plaintiff was safe for discharge. Approximately 11 hours later, Plaintiff attempted suicide by jumping from three stories, suffering severe injuries and brain damage.

The hospital moved for summary judgment under O.C.G.A. §§37-3-4 and 37-3-43(c), claiming it was entitled to “immunity” based on good faith compliance with the admission and discharge statutes concerning involuntary commitment. First, the Court of Appeals held there were genuine issues of material fact whether Grady had shown it was entitled to “immunity” because there were discrepancies between the first doctor’s assessment of suicide risk, the social worker’s intervention, and the second doctor’s concurrence with the social worker’s assessment after the patient received Ativan.

Next, the Court of Appeals held there were factual questions with whether Grady complied with the notice provisions of the statute. Under the notice rules, the hospital is required to give notice to the patient or their representative of proposed discharge. There was nothing in the chart to indicate compliance.

Take-home: proving immunity from liability can be difficult, especially on summary judgment.

The case is Fulton-DeKalb Hospital Authority v. Hickson, 830 S.E.2d 582 (June 28, 2019).

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).

Georgia Legislature Enacts Statute Protecting High-Low Agreements

On April 9, 2019, the Georgia General Assembly sent HB128 to the governor for signing. HB128 modifies the rules regarding insurance company and physician reporting of the “low” amount of a high-low agreement. Now, when the “low” amount is paid, the insurance company does not have to report the payment as a settlement to the Composite Medical Board and the physician does not have to update their profile. This makes Georgia law square up with the National Practitioner Databank Reporting rules and seemingly overturns a 2016 Georgia Attorney General opinion.