CSKL’s Eric Frisch Interviews R&D Strategic Solutions’ James McGarity: A Jury Consultant’s Take on COVID-19

Recently CSKL Health Care Practice Group Leader Eric Frisch had the opportunity to interview R&D Strategic Solutions’ James McGarity. James and Eric discussed potential effects of the COVID-19 pandemic on jury pools and seated juries.

James, a nationally renowned Jury Consultant, is a partner in R&D Strategic Solutions. James has been studying jury behavior and trial strategy since 1999, and is a recognized expert in medical malpractice cases. In addition to consulting on more than two thousand medical malpractice cases, James has consulted on many other civil and criminal matters, including product liability, premises liability, copyright/patent litigation, white-collar crime, and many other types of litigation in venues across the country. Mr. McGarity has assisted clients with jury research, case strategy preparation, jury selection, voir dire question development, witness preparation, and post-verdict analyses. He is an expert in research methodology and survey design, and has been a speaker at numerous CLE events and legal conferences, including the Alabama Bar Institute for Continuing Legal Education, the Arkansas Association of Defense Counsel, the Georgia Bar Association, the Virginia Association of Defense Attorneys (VADA), the Memphis Bar Association, Emory University School of Law, and the University of Montana School of Law Advanced Trial Advocacy Program. James has also appeared frequently on Court TV, as a guest expert in jury behavior on shows hosted by Yodit Tewolde, Julie Grant, Seema Iyer, and Vince Politan, covering high profile trials across the country. R&D Strategic Solutions.

ERIC:    James, professionally, how is your pandemic going? Have you been working on jury research projects?

JAMES:    Our work slowed down a bit during the first few months of the pandemic, but has picked up substantially in the last few months. We have been doing jury research projects over the last year, but quite a bit more since the beginning of the year.

ERIC:    From the exercises, what is the general mood of the jury pool out there?

JAMES:    Uncertainty is the general mood. Jurors are keeping a closer eye on safety and safety related issues, having lived through such a significant event just this far, and we don’t know when it will be over for sure. There is also uncertainty about when the pandemic is going to end, how we will come out of it financially and in terms of our health, and how our economy will rebound from the lockdown periods. There is even more focused uncertainty among the population of individuals who had the greatest concern about their ability to withstand the financial impact of the pandemic (i.e., job furloughs, business interruption, survivability of certain industries, etc.). Many are also concerned about the effectiveness of the vaccine as well as any potential future problems associated with any side effects, and forthcoming variants of the virus. There is just a lot of uncertainty in everyone’s minds today. But at the end of the day, jurors want reassurances that everyone is making their own safety and the safety of others a priority. 

ERIC:    We have seen significant life events affect jurors in the past, but usually the effect fades over time. Things like the 9/11 attacks come to mind. Is the pandemic and the related “lockdowns” the same or different that past life events for jurors?

JAMES:    Different, because as significant as other life events like 9/11 have been, this pandemic is more personalized for us because it has touched each of our lives individually in a more “real” way; we’ve been confined to our homes, centers of business have been shut down, our schools and jobs have been turned upside down, not to mention the many people each of us know who have been diagnosed with COVID-19 with differing recovery results. It’s been a much more impactful event for everyone (not to minimize the significance of major events like 9/11).

ERIC:    Let’s talk about civil juries. Where are jurors’ heads in terms of assessing liability, causation, and damages these days?

JAMES:    Safety and taking active steps to protect themselves and others is a key issue. Part of this pandemic experience has imbued in us how important compliance with safety rules and practices truly is—because so much of the spread and duration of the virus has been ascribed to people not being compliant with safe practices (e.g., safe distancing, hand sanitizing, staying home, wearing masks, etc.). The reported drop in cases has also been, for many, attributed to the more recent increased compliance with safety guidelines. It is important to note, however, that defendants are not the only ones jurors are “putting under the microscope” more in civil cases—plaintiffs are experiencing at least as much scrutiny today as jurors examine which parties exercised the best judgment when applying their knowledge and control in the circumstances of each case. Damages are also trending upward as jurors are taking into account the uncertainty they are living with—they want to make sure that their damage awards cover any future potential ongoing developments (e.g., need for future treatments, subsequent declines in condition, unforeseen complications, etc.)

ERIC:    Are you seeing any regional differences? For example, a jurors’ feelings about civil justice being affected by where they spent their pandemic?

JAMES:    Yes. Jurors in the South, Southwest and Southeast tend to be a little less conservative about following the “letter of the law” when it comes to following the COVID guidelines, and often see them as unfair or unnecessary intrusions on their personal lives.

 ERIC:    As you know, my focus is on professional liability, including health care providers. What are you seeing in terms of jurors’ attitudes towards professionals and healthcare?

JAMES:  Jurors have an increased appreciation of healthcare professionals, as they have been working very hard to treat COVID-19 patients and now getting people vaccinated. But attorneys in your area of practice need to proceed with caution, as there has been a lot of talk amongst professional liability defense lawyers in health care of a “halo effect” that favors healthcare professionals (where someone is less vulnerable to criticisms because they are held in a more favorable light by others). While healthcare providers may be held in higher esteem by jurors, this does NOT equate to a “free pass” to a defense verdict in medical malpractice cases. Jurors still evaluate each case on its own merits, and as I said earlier, jurors want to know how carefully each party followed safety practices. Also, trials have been delayed during the pandemic, so we haven’t yet seen any reliable evidence that tells us to what extent healthcare providers are seeing the benefits of any “halo effect.”

ERIC:    Is there one thing on jurors’ minds that comes up about the pandemic?

JAMES:    One interesting tidbit, the question “How concerned are you about your/your family’s financial stability as a result of the impact of the COVID-19 pandemic?” has been predictive of verdict orientation in just about every type of case we’ve researched (med mal, premises liability, product liability, even securities cases) since the start of the pandemic. Those who are “greatly” and “somewhat” concerned tend to be plaintiff-oriented, as they have greater empathy for plaintiffs.

ERIC:    From all of your research, what is the big take-home theme in terms of jury research going forward?

JAMES:    Safety first. In a civil dispute, jurors will still evaluate the disparity between the parties’ relative knowledge of and control over the circumstances that produced the dispute. But in this COVID-19/pandemic era, the party that is perceived to have “gone the extra mile” in terms of looking out for others and foreseeing the potential for danger will most likely be the party that jurors are more motivated to fight for.

Georgia Court of Appeals Affirms Attorney Fee Award for Defendants in Malpractice Case

The Georgia Court of Appeals has affirmed an award of over $177,000 in attorney’s fees to the defendants in a medical malpractice case under O.C.G.A. §9-11-68. In Anglin v. Smith, plaintiff alleged that she suffered loss of leg function and urinary incontinence after a second injection into her lower back. In a previous version of the case, the Court of Appeals wrote “the crux of the case became . . . that [plaintiff] was paralyzed and incontinent when she las saw [Dr. Smith] and for several days thereafter.” However, the medical records and treating providers confirmed that plaintiff was able to walk and was not paralyzed. The only evidence that plaintiff was paralyzed came from plaintiff herself and plaintiff’s experts relied exclusively on this to support their standard of care criticisms.

During discovery, defendants made a $1000 offer of judgment, which was rejected. After a defense verdict (affirmed on appeal), defendants moved for attorneys’ fees under O.C.G.A. §9-11-68. Importantly, defendants did not move for damages based on frivolity under Section 9-11-68(e). Rather, the motion was based on the statutory offer only. The trial court ruled that the offer was a good faith offer and awarded the fees.

The Court of Appeals affirmed, holding that the trial court did not abuse its discretion in awarding the fees. Because the fees were awarded pursuant to a statutory offer of judgment, the trial court only needed to rule that the offer was made in good faith. Here, the trial court was authorized to determine, based on the whole of the record, that defendants felt strongly they would win the case and that was sufficient to support a finding of good faith. Plaintiff argued the trial court was required to set forth certain “objective factors” justifying the award. However, the Court of Appeals opined that the “objective factors” apply only to orders denying fees, not awarding them.

Take-Home: There is no brightline test for a “good faith” offer by defendants under Section 9-11-68, but this case, along with others like it, show that a trial court is empowered with broad discretion to award fees even when the evidence is contested.

The case is Anglin v. Smith, ___ S.E.2d ___, 2020 WL 7692151 (Ga.Ct.App. December 28, 2020).

Georgia Supreme Court Overrules Respondeat Superior Rule

In a significant case, the Georgia Supreme Court has overruled the long-standing rule that an employer cannot be held independently liable for negligent entrustment, training, hiring, or supervision if it admits the employee was acting in the course and scope of employment. The underlying case involved a truck accident. The defendant employer admitted that the truck driver was its employee and acting with in the course and scope of employment. The employer moved for partial summary judgment on claims for punitive damages and negligent entrustment, hiring, training, and supervision. The trial court granted the motion based on the long-standing rule known as the Respondeat Superior Rule. Plaintiffs opposed the motion, claiming that Georgia’s apportionment statute abrogated the Respondeat Superior Rule in favor of apportioning to the employer and employee. The Georgia Court of appeals affirmed the judgment.

A majority of the Georgia Supreme Court reversed and held that the Respondeat Superior Rule is inconsistent with apportionment of damages. The Court reasoned that a claim for negligent entrustment is an independent act by the employer that, under the plain language of the statute, should be for the jury to consider when deciding percentages of fault between the plaintiff and the defendants. In particular, negligent entrustment involves the breach of a legal duty of the employer, namely, not to lend a vehicle to another to drive when there is actual knowledge that the driver is reckless or incompetent.

In a dissent, Justice Carla Wong McMillan wrote that the apportionment statute does not abrogate the Respondeat Superior Rule because apportionment applies at trial, while the Respondeat Superior Rule applies at the summary judgment phase. Justice McMillan also wrote that the Court has previously held there is no apportionment of damages when the fault is indivisible, as it is in vicarious liability situations, noting specifically the Loudermilk decision.

Take-home: This case breaks wide open claims for negligent hiring, training, and supervision in a wide variety of contexts. It also demonstrates the need for the General Assembly to revisit the apportionment statute to fulfil the stated purpose. That’s 2020 for you.

The case is Quinn v. Hulsey, ___ S.E.2d ____ (Ga.Sup.Ct. November 2, 2020).

Georgia Court of Appeals Holds No Affidavit for Negligent Credentialing

The Georgia Court of Appeals has held that an expert affidavit is not required to support some claims of negligent credentialing. Plaintiffs sued a physician, his employer, and the hospital where he had privileges, claiming injuries from an allegedly negligent cardiac catheterization. Plaintiff asserted the physician had not performed a sufficient number of interventional procedures to be granted staff privileges by the hospital. Plaintiffs filed an expert affidavit with the complaint, but the affidavit did not address the negligent credentialing claim.

The hospital moved to dismiss arguing, among other things, that an expert affidavit was required for the negligent credentialing claim under O.C.G.A. §9-11-9.1. The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals held that credentialing can include professional review in the form of peer review or medical review of the quality of surgeries. However, Plaintiffs alleged in this case that the question was the number of surgeries, not the quality of care. Because a non-professional could count the number of surgeries, this did not involve medical or professional judgment. Accordingly, an affidavit was not required.

Take-Home:

It is a bit surprising the Court addressed the legal question, since, in general, the rule is that an expert affidavit need only address one negligent act or omission to be sufficient. This case could narrow the seemingly broad protection of peer review and medical review activities in the credentialing context if actual review of the quality of care is not involved.

The case is Houston Hospitals, Inc. v. Reeves, ___ S.E.2d ____, 2020 WL 351822 (June 29, 2020).

Georgia Court of Appeals Affirms Defense Verdict

The Georgia Court of Appeals affirmed a final judgment in favor of a neurosurgeon against a litany of alleged evidentiary errors at trial. In the case of Haskins v. Georgia Neurosurgical Institute, the plaintiff underwent lumbar surgery for a herniated disc. After surgery but in the operating room, the patient was able to move his feet. He was taken to recovery area, where, 30 minutes later, he could no longer move his feet. The surgeon ordered an MRI to look for a hematoma or spinal cord as a cause of cauda equina syndrome. The patient went back to the operating room, where a laminectomy was done. Following the second surgery, the patient continued to experience deficits.

At trial, the patient alleged the surgeon violated the standard of care by over-retracting during the first procedure and performing the wrong procedure to start. Defendants denied the allegations and put up expert witness testimony that a possible cause of the deficits was a spinal cord stroke. Plaintiff filed a motion for new trial, which was denied and affirmed on appeal.

Plaintiff first contended that the trial court erred in permitting the defense to cross-examine his expert witness with an article written by the witness’ partners. The Court held that this was harmless error because the article did not mention stroke as a cause of CES but was a general article that benefited both sides.

Next, Plaintiff complained that the trial court erred by allowing Plaintiff to be cross-examined on the consent form he signed before surgery. Plaintiff opened the door to the exam but testifying that he did not been provided with consent paperwork. The trial court also gave a jury charge stating that consent was not a defense. Accordingly, there was no harmful error.

Plaintiff then alleged the trial court erred in excluding a rebuttal witness who had not been identified in discovery and permitting the defense to read a deposition for which there was no signature by the witness. The Court held that both of these were harmless, if they were error at all.

Importantly, Plaintiff contended that the defense theory about a spinal cord stroke as the cause of the CES was speculative. The Court held that Plaintiff was confusing its burden of proving causation during the case-in-chief with the defense burden to establish the reliability of expert testimony. Notably, the Court affirmed earlier cases that the defense does “not bear the burden of proving causation” and that the defense may offer expert testimony “suggesting alternative causes” to rebut more specific testimony.

Take-Home:

 This case reaffirms the long-standing rule that trial court errors must result in prejudice to be overturned on appeal. And it reaffirms the specific rule that the defense does not bear the burden of proving alternative causation with the same standard applicable to Plaintiff.

The case is Haskins v. Georgia Neurosurgical Institute, Inc., 2020 WL 3445715 (June 24, 2020).

 

Georgia Legislature Enacts Nursing Home Reform, Extends Medicaid for Mothers

The Georgia General Assembly has passed two new healthcare related measures. The first bill, entitled the “Disabled Adults and Elder Persons Protection Act,” enjoyed bipartisan support and is expected to be signed into law shortly. The second act extends Medicaid coverage for postpartum care for new mothers to four months, up from two months.

Among the provisions of the Disabled Adults and Elder Persons Protection Act are:

  • Job protection for whistleblowers
  • Increased fines for violation of regulations for facilities
  • A minimum fine of $5,000 for a regulatory violation that results in serious injury or death
  • Extension of regulation to personal care homes and assisted living facilities
  • Requiring direct patient care by qualified personnel at personal care homes with more than 25 beds with minimum staffing ratios
    • The staffing requirement includes a comprehensive clinical skills review and a medication aide
  • Requiring comprehensive clinical skills evaluation for staff at other facilities
  • Regulations for memory care and Alzheimer’s and dementia care units
  • Pandemic planning, including maintaining a minimum amount of personal protective equipment
  • Authorization to develop licensure and oversight standards for personal care home administrators

These changes were prompted in large part by a newspaper expose on personal care homes, which was published last Fall, and the COVID-19/novel coronavirus outbreak, which hit Georgia elder care facilities particularly hard. Notably, there are no new liability provisions, but the extension of regulations to previously non-regulated or under-regulated facilities makes these bills significant for any provider of residential elder care.

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).

Georgia General Assembly Passes Surprise Medical Billing Law

Yesterday the Georgia Senate passed and adopted HB 888, which limits the consequences of “surprise” medical billing for patients receiving emergency medical services. The bill limits the remedies for out of network service providers to collect from patients on past due bills to the deductible or co-pay. Once the patient pays the deductible or co-pay, the service providers can only collect any out of network balance from health insurers. The bill also requires insurers to pay for out of network emergency services without prior authorization and to cover certain non-emergency services as well. The patient remains financially responsible for out of network services they choose to receive.

This bill requires a deeper dive and more analysis will follow, but it seems to be ambiguous enough that significant litigation is likely to follow. Stay tuned for more analysis.

The text of the bill can be found by clicking here.

Georgia Governor Orders Immunity for Healthcare Workers

On April 14, 2020, Georgia Governor Brian Kemp issued an executive order designating employees, staff, and contractors of healthcare institutions and medical facilities as “auxiliary emergency management workers” and granting them immunity for their services under O.C.G.A. §38-3-35. Under that Code Section, no one “shall be liable for personal injury” while engaged in emergency management activities “except in cases of willful misconduct, gross negligence, or bad faith.” The immunity does not appear to apply automatically to every healthcare provider in Georgia. Rather, it is limited to “where services are provided or performed during the Public Health State of Emergency” but the definitions do include freestanding imaging centers, rehabilitation care centers, and freestanding surgery centers.

This is a big step. In the event there are claims made during or after the COVID-19/novel coronavirus pandemic, the application and scope of this immunity is going to be a heavily litigated issue. We here at CSKL remain prepared to defend the healthcare providers in Georgia!

The April 14, 2020 Executive Order can be viewed by clicking here.

University of Pennsylvania Releases Hospital Census Modeling Tool

The University of Pennsylvania has released an online tool to help hospitals model projected census for the COVID-19/novel coronavirus pandemic. The tool can be found by clicking here. The variables are adjusted for region, number of presentations, number of ICU beds, and number of ventilators.

Healthcare providers on the frontline have been in the news a lot lately. The news and social media sources speak about the heroics of nurses, emergency providers, and first responders. The job they are doing cannot be put in words. But, let’s not forget their colleagues – hospitalists, intensivists, critical care specialists, infectious disease, pulmonology, lab personnel, and support staff – who are integral in the fight. And keep in your thoughts the surgeons, obstetricians, cardiologists, and other specialists who have to manage the rest of the patients at the same time; people are still going to the hospital with appendicitis, babies to be delivered, and heart attacks. The Healthcare practice group of CSKL supports all who make our healthcare system the best in the world.