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 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 Reverses Immunity for Ambulance

The Georgia Court of Appeals reversed the grant of summary judgment for an ambulance service based on the emergency responder statute. Plaintiff was the wife of a deceased driver and the mother of a son injured in a car accident. Plaintiff alleged that when the ambulance service responded, they failed to treat her husband, resulting in his death. Plaintiff also alleged that the ambulance service improperly treated her son, resulting in additional injuries.

The ambulance service moved for summary judgment under Section 31-11-8, which grants immunity to ambulance services who provide services in good faith and without remuneration. The trial court granted the motion, ruling that the statute applied even though Plaintiff alleged omissions and that the ambulance service did not receive remuneration.

The Court of Appeals reversed, holding there was a fact dispute as to whether the ambulance service received remuneration within the meaning of the statute. The evidence was the ambulance service received compensation for mileage and for “ALS1.” Under the CMS manual for reimbursement, ALS1 is for charges related to emergency services and not an administrative cost like mileage. Accordingly, the ambulance service received remuneration and was not entitled to immunity as a matter of law.

The case is Ortega v. Coffey, 2019 Ga.App. LEXIS 86 (Feb. 26, 2019).

Georgia Court of Appeals Holds that Metastatic Cancer is New Injury

The Georgia Court of Appeals has held that metastatic cancer constitutes a “new injury” for purposes of calculating the statute of limitations. Plaintiff went to an obstetrician/gynecologist in August 2013 with complaints of abnormal bleeding from a large uterine fibroid mass. Plaintiff and the doctor discuss treatment options, including robotic hysterectomy. The doctor then referred the patient to a gynecological oncologist.

The oncologist examined the patient and reviewed films. In November 2013, the oncologist reported to the obstetrician that there was a “very low suspicion” for malignancy. The obstetrician proceeded with the robotic procedure on December 13, 2013 based on the oncologist’s report. During the procedure, the fibroids were cut (“morcellated”) and not removed intact. Pathology reports showed the fibroids were cancerous. Post-operative CT and PET scans were negative until October 24, 2014, when the patient presented with pelvic tumors. The patient passed away on May 19, 2015.

On December 9, 2015, the patient’s husband was appointed administrator of her estate. He then filed suit against the obstetrician, the practice group (Wellstar Physicians), and named several “John Doe” defendants. In April 2017, plaintiff filed an amended complaint to name the oncologist and substitute him in for one of the John Doe defendants.

The oncologist moved to dismiss on the grounds of expiration of the two year statute of limitations. The trial court converted the motion to a partial motion for summary judgment and held that the “new injury” exception to the statute of limitations did not apply.

The Court of Appeals reversed, holding the evidence showed the “new injury” exception did apply.  The general rule in misdiagnosis cases is that the misdiagnosis is the injury because the plaintiff suffers pain and incurs medical expenses from that point forward. In some cases, however, when the injury from the misdiagnosis is relatively benign or treatable but then develops into a more debilitating or “less treatable” condition, the injury is the “subsequent development of the other condition.” In this case, the Court held that the metastasis led to “a substantially reduced likelihood of her survival” and was a result of the morcellation, rather than removal of the fibroids intact.

The Court also held that the statute of limitations was tolled until the administrator was appointed and that the amendment related back to the filing of the original complaint.

The case is Hayes v. Hines, 2018 Ga. App. LEXIS 615 (Oct. 26, 2018).