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.

Office of Civil Rights Further Relaxes HIPAA Enforcement Due to COVID-19 Pandemic

Last night, the Office of Civil Rights Division of the United States Department of Health and Human Services (“OCR”) issued further guidance regarding enforcement of the Privacy Rule and related regulations due to the COVID-19/novel coronavirus pandemic as it relates to business associates of covered entities. Under the Privacy Rule and related regulations, business associates of covered entities may disclose private health information for public health and oversight activities only with prior authorization from patients. In light of the pandemic, OCR has declared that it will exercise its discretion and not enforce this requirement until the Secretary of the Department of Health and Human Services decides that the public emergency has passed. Attorneys like the members of the Healthcare practice group of CSKL who provide legal services directly to healthcare providers and facilities fall within the class of business associates to whom this wavier of action applies. The waiver is limited to the use for public health and oversight activities only and not to broader litigation, to which the existing rules, regulations, and laws still apply.

The guidance can be found by clicking here.

Stay tuned for more information about HIPAA and other healthcare related legal news in the ever evolving world of the COVID-19 pandemic.

Georgia Court of Appeals Remands for Determination of Inconsistency in Verdict


This is the continuing saga of Evans v. Rockdale Hospital. Mrs. Evans presented to the emergency department with what was diagnosed as a brain aneurysm. She and her husband sued the hospital and its nurses for failure to diagnose and treat in a timely manner. At trial, Plaintiffs introduced evidence of $1.1 million in past medical bills, a life care plan with significant future damages, and other evidence. The defense challenged the credibility of the damages experts and argued that Mrs. Evans was contributorily negligent for failing to seek treatment earlier. The jury returned a verdict for the past medical bills and a small amount for loss of consortium, but zero dollars for future damages. Plaintiffs moved for a new trial on inconsistency of the verdict and for additur conditioned on the grant of a new trial for inadequacy of the verdict. The trial court denied the motions and the first round of appeals followed.

The Georgia Supreme Court remanded the case to the Georgia Court of Appeals for using the wrong standard to determine inadequacy of the verdict. In this current decision from the Court of Appeals, the Court affirmed the trial court’s denial of the motion for new trial based on inadequacy of the verdict. The Court held that the record showed the trial court exercised its discretion, did not make a material error in fact or law, and that the award was not so inadequate as to show obvious jury bias or the like.

The Court also vacated its prior decision regarding inconsistency of the verdict, which is governed by a different legal standard than inadequacy. Because there was no indication the trial court used the different legal standard, the Court remanded the case back to the trial court for further proceedings.

Take-home: many claimants are now using separate appellate counsel early in their cases. It is one thing to advocate trial level legal issues in the heat of battle, but understanding the standards of review for different rulings on appeal, such as evidentiary issues, requires a thorough understanding of the appellate process. The good news is that we at CSKL have decades of appellate experience on these issues!

The case is Evans v. Rockdale Hospital, ___ S.E.2d ____, 2020 WL 1527979 (Ga.Ct.App. March 30, 2019).

Office of Civil Rights Issues HIPAA Enforcement Guidance for Coronavirus

The Office of Civil Rights (“OCR”) division of the Department of Human Services is responsible for enforcing HIPAA, the Privacy Rule, and related regulations. On Saturday, OCR issued guidance relaxing enforcement of the Privacy Rule dictates concerning telehealth, notification to family members and others, and disclosures to the media. The OCR cautions covered entities (i.e., health care providers and facilities) to obtain verbal consent to disclosures and to disclose only the “minimum necessary” information, but does permit covered entities to disclose a patient’s private health information to family members, friends, and others as needed.

The guidance can be found by clicking here .

The take-home message is that the public health crisis associated with the COVID-19 pandemic has forced everyone, including OCR, to change the way they do business. Covered entities and their business associates, like lawyers defending health care providers, should continue to follow the Privacy Rule dictates in daily practice with a narrow carve-out for COVID-19 related disclosures. Even then, health care providers are advised to document verbal consent and the subsequent disclosures because, at some point, this crisis will pass.

We at CSKL remain committed to the support of all healthcare providers and we thank and applaud you for all you do and all you are doing now!

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.