The Georgia Supreme Court Holds that Damages May be Sought in Cases Arising Out of the Birth of a Child with Genetic Defects.

The Georgia Supreme Court has reaffirmed the long standing rule that being born does not amount to a legal injury but that other damages may be sought in cases arising out of the birth of a child with genetic defects. In Norman v. Xytex Corp., the plaintiffs purchased the sperm of Donor  #9623 from Xytex, a sperm bank. Xytex promoted Donor #9623 as one of its best donors on account of him being a Ph.D candidate with an IQ of 160 and having no history of mental health issues or criminal activity. Wendy Norman gave birth to a son, A.A., who was diagnosed with ADHD and Thalassemia Minor, an inheritable blood disorder of which Wendy Norman was not carrier. As he grew older, A.A. regularly had suicidal and homicidal thoughts, requiring him to be hospitalized for extended periods of time and take a host of medications. Through internet research, plaintiffs discovered that Donor #9623 falsely reported his education status, mental history, and criminal history to Xytex. It was also discovered that Xytex had not asked Donor #9623 for any verification, and a Xytex employee encouraged him to exaggerate his IQ and education.

Plaintiffs sued Xytex Corp for fraud, negligent misrepresentation, products liability and/or strict liability, products liability and/or negligence, breach of express warranty, breach of implied warranty, battery, negligence, unfair business practices, specific performance, false advertising, promissory estoppel, and unjust enrichment. The defendants moved to dismiss on the grounds that the claims ultimately amounted to “wrongful birth,” which is not a legally recognized cause of action under Georgia law. The trial court granted the motion to dismiss all counts except for the plaintiffs’ specific performance claim, ruling that they were all claims for “wrongful birth camouflaged as some other tort.” The Court of Appeals affirmed.

The Georgia Supreme Court affirmed in part and reversed in part. The Court held that Georgia law does not recognize a claim for wrongful birth, which is a claim in which the parents claim they would have aborted a child had they been fully aware of the child’s condition. The Court further held that Georgia law does not recognize claims for damages that depend on life as the injury. In reversing, however, the Court held that not all of Plaintiffs’ claims depended on A.A. being born alive as the injury upon which the damages are based. The Court held that plaintiffs could recover damages based on additional expenses incurred as a result of not being told the truth about Donor 9623 sooner, as well as damages under the Fair Business Practices Act for the difference in price between the cost of the sperm they received and the fair market value of the sperm that Xytex told them they were getting. Further, they may be entitled to punitive damages because one of Xytex’s employees encouraged Donor #9623 to falsify his history.

The important takeaway here is that a claim arising out of the conception or birth of a child may survive if the damages sought are not solely based on the child being born alive.

The case is Norman v. Xytex, ___ S.E.2d ___, 2020 WL 5752325 (Ga. Ct. App. September 28, 2020).

Court of Appeals Affirms Denial of Motion to Exclude

The Georgia Court of Appeals has affirmed the trial court’s denial of the defendants’ motion to exclude an expert witness in a medical malpractice case.

The underlying case arose out of medical treatment received by the decedent in June and July of 2015, during which time the decedent developed paraplegia, and her subsequent passing two years later as a result of complications of that paraplegia. In the trial court, plaintiff’s causation expert opined that the decedent would not have died from the conditions that took her life had she not become paralyzed in June 2015. The expert opined that the paralysis resulted in the decedent developing medical conditions that she would not have developed otherwise, and these conditions exacerbated the decedent’s pre-existing conditions.

The defendants sought to exclude the testimony of plaintiff’s causation expert on the grounds that the expert’s testimony was not based upon “sufficient facts or data,” one of the statutory requirements for expert testimony set forth in O.C.G.A. § 24-7-702. The defendants based their argument on the fact that plaintiff’s expert failed to review the decedent’s medical records predating her June 2015 hospitalization, which would have shown that the decedent suffered from uncontrolled diabetes that could have contributed to her developing the post-paralysis conditions that led to her death. In his testimony, though he did not review the records, plaintiff’s expert stated that he had accounted for the decedent’s preexisting conditions and that they did not change his opinion on causation. The trial court denied the motion, and this appeal followed.

The Court of Appeals affirmed the trial court’s denial of the motion. The Court reaffirmed the general rule that the factual bases of experts’ opinions go to the credibility of their opinions rather than their admissibility. The Court explained that an expert’s opinion may not be admitted if it “is so fundamentally unsupported that it can offer no assistance to the jury.” While there may be cases in which an opinion would be so fundamentally unsupported without considering a patient’s complete medical records, the Court held that this was not such a case because the expert was only opining on the connection between the decedent’s paraplegia and her death. As such, the trial court did not err in admitting plaintiff’s expert’s testimony.

Importantly, the Court of Appeals explicitly reaffirmed the rule that decisions pre-dating adoption of the new evidence rules in 2013 are not binding precedent in the interpretation of the new rules. This is consistent with past decisions, including State v. Almanza, 304 Ga. 553, 820 S.E. 2d 1 (2018) and Bashir v. State, 350 Ga. App. 852, 830 S.E.2d 353 (2019).

The case is Emory University v. Wilcox, 2020 WL 3263155 (June 17, 2020).

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).