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.

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).