Carlock Copeland Health Law and Regulation Update

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Copeland, Stair, Kingma & Lovell, a civil litigation firm, has a reputation for forceful, creative and cost-effective advocacy on behalf of its clients. Formed in 1970 with five attorneys operating out of a downtown Atlanta office, we now have over 80 civil litigation attorneys handling legal matters across the Southeast from offices in Atlanta, GA, Charleston, SC and Chattanooga, TN.

Victory for Obstetricians in Birth Injury Cases

Obstetricians can rely upon immunity from simple negligence claims under South Carolina’s “medical emergency” statute, according to the South Carolina Court of Appeals. In a case of first impression, the Court of Appeals upheld a defense verdict obtained by CSKL senior litigation partner Gary Lovell in favor of our ob/gyn client for claims arising from a sudden medical emergency involving shoulder dystocia that presented during delivery. The Court of Appeals upheld  the defense position that provisions of S.C. Code Section 15-32-230(A) controlled and required that Plaintiffs prove “gross negligence” of the medical practitioner in cases involving shoulder dystocia and a genuine medical emergency during delivery of a child. The court rejected Plaintiff’s argument that the Statute was inapplicable in situations where the patient was an established patient of the obstetrician or group or had received prenatal care. The Court noted that it was undisputed that the shoulder dystocia condition presented a “genuine medical emergency”, where the patient was not medically stable and in immediate threat of death or serious bodily injury prior to discharge from the obstetrical suite.

Mitchell Brown and Brian Cotty of Nelson Mullins were appellate counsel along with Attorney Lovell. Oral argument on the case was held “virtually” on June 23, 2020, due to the Covid-19 pandemic restrictions on in-person oral arguments.

Flowers v Giep, CA 2017-002299 (10/6/2021)

Georgia Court of Appeals Affirms Trial Court Ruling on Admissibility of Expert’s Opinion on Standard of Care and Affirms the Denial of Summary Judgment Finding a Fact Dispute As to Causation and Negligence in Case Against Hospitalist

The Georgia Court of Appeals affirmed the trial court’s ruling that the standard of care opinion of an expert is admissible and that a genuine issue of material fact existed as to whether the patient’s injuries could have been avoided had the hospitalist properly diagnosed the condition in compliance with the standard of care. Further, the Court of Appeals affirmed the trial court’s ruling that a genuine issue of material fact existed as to whether the hospital’s failure to adequately respond to the patient’s emergent medical condition constituted a breach of standard of care.

Plaintiff attached the affidavits of two experts to its Complaint, an internal medicine physician and a cardiologist. Both experts opined Defendants deviated from the standard of care. After discovery, Defendant moved for summary judgment arguing Plaintiff did not establish any negligence that Defendant proximately harmed Plaintiff. Defendant further moved to exclude standard of care opinions of the cardiologist on the grounds that he lacked the qualifications required by O.C.G.A § 24-7-702, specifically that he lacked experience practicing hospitalist and that he only practiced three of the last five years. The trial court denied both motions holding there are genuine issues of material facts concerning both the alleged negligence of defendants and the causal connection between defendant’s negligence and Plaintiffs’ injuries. The trial court further denied Defendant’s motion to exclude the cardiologists’ testimony ruling that even though the Defendant is a hospitalist and the expert is a cardiologist, the expert has the requisite knowledge to give standard of care testimony.

When deciding the admissibility of expert affidavits, the Court of Appeals opined the pertinent question is whether an expert has an appropriate level of knowledge in performing the procedure or teaching others how to perform the procedure, not whether the expert himself has actually performed or taught that specific procedure. Further, the Court held, the trial court must consider whether the expert has “sufficient knowledge about [diagnosing the condition] — however generally or specifically it is categorized, so long as it is the [condition] that the Defendant is alleged to have [diagnosed] negligently.” The Court further held the area of specialty is dictated by the allegations in the complaint, not the apparent expertise of the treating physician. The Court utilizes a flexible approach in determining an expert’s appropriate level of knowledge. Here, the expert cardiologist, though not currently practicing hospitalist medicine, did meet the requirements of Rule 702 because he treated patients with pericardial diseases and patients who undergo surgical or interventional procedures. The cardiologist was also called to consult in the emergency room up to 5 times a year for suspected pericardial effusions.  The Court explains a medical doctor in one specialty may have the requisite knowledge and experience under O.C.G.A § 24-7-702(c)(2) to give expert opinion testimony of a medical doctor in another specialty. 

Next, Defendant argued there is no expert testimony to show causation to a degree of medical certainty, essentially, there is no evidence to show that his alleged breach of standard of care caused Plaintiff’s injury. Both experts opined the alleged breach occurred at different times, but the Court explains, despite the experts offering conflicting evidence regarding causation, it is the province of the jury to decide which testimony is believable, hence a fact dispute does exist as to causation.

Finally Defendant argued the trial court erred in only considering negligence claims justified by the expert’s testimony. Defendant alleges the expert testimony did not establish “with a degree of medical certainty” that the alleged negligence caused Plaintiff’s injuries. The trial court denied the motion for summary judgment, ruling there were several other claims alleged by appellees including failure to review and act upon a previous physician’s notes, failure to ensure timely compliance with policies, failure to adequately respond to an emergent situation. The Court of Appeals affirmed the trial court’s ruling and held summary judgment may not be obtained by relying solely on opinion evidence. However, a summary judgment motion may be contested by the use of opinion evidence.

Take-home: An expert practicing in a different area of medicine is considered qualified for purposes of Rule 702 as long as the expert has the requisite knowledge to give standard of care testimony. Further, conflicting expert testimony is exactly the type of evidence that leads to a jury question, and may not be decided on summary judgment. Lastly, a summary judgment motion may only be contested by use of opinion evidence, a party may not rests its summary judgment motion on opinion evidence.



CSKL Highlights Members of Our Busy Health Care Litigation Team

For over 50 years Copeland, Stair, Kingma & Lovell, LLP has represented health care professionals and institutions across the Southeast. Our health care team are leaders in the medico-legal community, frequently speaking and writing about the latest developments affecting the healthcare community. We understand the complicated, highly regulated world of health care law, which gives us a solid foundation to successfully represent a wide array of clients.

We are pleased to introduce members of our growing Health Care Litigation Team, click here to learn more about them.

Georgia Court of Appeals Affirms Denial of Motion to Add Party and Reverses Summary Judgment

In a case involving care provided in an emergency department by a physician assistant, the Georgia Court of Appeals affirmed the denial of a motion to add the physician assistant as a party defendant. The Court also reversed the grant of summary judgment based on the “emergency medical treatment” statute.

Plaintiff presented to the emergency department with complaints of acute lower leg pain, which she characterized as 9 out of 10. She was evaluated by a physician assistant, who examined the patient and found pulses in both legs. The PA ordered an ultrasound to rule out a deep venous thrombosis. The patient was then discharged to home. The supervising physician signed off on the chart after the patient was discharged.

The patient returned three days later with discoloration and increased pain. She was diagnosed with acute limb ischemia and eventually had her foot amputated.

The patient initially sued the supervising physician and the radiologist who read the ultrasound, but not the physician assistant. Shortly before expiration of the statute of limitations, the patient amended the complaint to add the physician assistant, but did not file a motion. The patient did not serve the physician assistant before expiration of the statute of limitation. The physician assistant filed a special appearance and a motion to dismiss for failure to obtain leave of court to add her as a party and failure to serve within the statute of limitation. The trial court granted the motion. On appeal, the Court of Appeals affirmed, reaffirming the general rule that an amendment to a complaint adding a new party without leave is without effect. The Court distinguished the line of cases holding that there is relation back for similar and related corporate entities when there is notice because the physician assistant had no notice and did not have enough commonality with the supervising physician.

The trial court also granted summary judgment to the supervising physician based on the emergency medical treatment statute, which requires proof of gross negligence. The Court of Appeals reversed, holding there were disputed issues of fact about whether the patient presented with an emergency medical condition and whether she had been stabilized. The Court also held there were disputed issues of fact and expert opinion regarding causation. While plaintiff’s experts may have given conflicting opinions in their depositions and later affidavits, the Court reaffirmed the rule that such contradictions go to credibility, not admissibility.

Take-home: the rule remains that, in general, a motion to add under O.C.G.A. §9-11-21 is necessary to bring in a new party. Also, experts may give contradictory testimony but still create a fact dispute for the jury.

The case is Connie v. Garnett, 860 S.E.2d 592 (2021).


Georgia Supreme Court Affirms Apportionment for Multiple Defendant Cases Only

The Georgia Supreme Court has affirmed a decision of the Georgia Court of Appeals holding that apportionment of damages only applies in cases involving more than one named defendant. Plaintiff was a limited liability company managed by an individual manager. The manager hired the defendant law firm. The manager embezzled company funds. The company sued the manager and won, but was unable to recover any money.

The company then sued the law firm for legal malpractice and breach of fiduciary duty. The law firm was the only named defendant. The law firm gave notice of a non-party at fault under the apportionment statute, pointing the finger at the former manager. In addition, the law firm pointed the finger at the company itself.

At trial, the jury awarded $2.1 million and apportioned 60% of the fault to the non-party manager, 8% to the company, and the rest to the law firm. The Court ordered the law firm to pay 32% of the total damages. On appeal, the Court of Appeals held that the trial court erred in reducing the damages by the 60% of fault apportioned to the manager, since the apportionment statute only authorizes reduction of damages in cases involving more than one person as a defendant. Here, since the law firm was the only defendant, the statute only authorized reduction of damages by the percentage ascribed to the plaintiff company, or 8%.

The Georgia Supreme Court affirmed based on the same textual interpretation. The General Assembly only authorized reduction of damages by the fault of the plaintiff in a case in which there is only one named defendant. While a jury may apportion fault to a non-party in such a case, the judgment is not reduced by the percentage of fault assigned to a non-party because the statute only authorizes reduction of damages for non-party fault in cases involving “more than one person.”

Significantly, in footnote 2, the Supreme Court wrote that a single defendant is “not without a remedy” because they can seek contribution from a joint tortfeasor under Section 51-12-32(a).

Take-home: the wording of Section 51-12-33 has always been problematic, especially with the strange use of liability, fault, and responsibility. This case highlights yet another textural problem with the statute. It is time for the General Assembly to fix the statute if it intended something different. In addition, contribution appears to be back on the menu.

The case is Alston & Bird, LLP v. Hatcher Management Holdings, LLC, ___ S.E.2d ____ (Ga.Sup.Ct. August 10, 2021).


Georgia Court of Appeals Reverses Summary Judgment on Causation in Case Against Nurse

The Georgia Court of Appeals reversed the grant of summary judgment to a nurse on causation after the treating doctor testified they would not have done anything different. Plaintiff alleged the patient died of a pulmonary embolus following knee surgery. Plaintiff contended a nurse violated the standard of care by failing to appreciate the decedent’s risk of DVT, failing to report the decedent’s immobility to a physician, and failing to institute a DVT prophylaxis protocol. The treating physician testified that even if he had been called, he would not have changed his course of treatment.

Plaintiff identified three expert witnesses, including a doctor and nurse on standard of care and one physician to testify on causation. The causation expert testified that it was incumbent on the nurses to relay the decedent’s condition to the treating physician and had the nurses done so, the treating physician’s treatment would have been different and the decedent’s risk of DVT could have been reduced. Defendant moved for summary judgment, alleging that Plaintiff failed to prove the outcome would have been different because the treating physician testified he would not have done anything differently. The trial court granted the motion.

The Georgia Court of Appeals reversed, holding that the testimony of Plaintiff’s causation expert was sufficient to send the case to a jury. In this case, the treating physician’s testimony was not enough to show conclusively that Plaintiff could not get to a jury on causation because Plaintiff’s expert opined that if the nurse provided more information to the treating physician, the treating physician would have chosen a different method of treatment. In prior decisions, the Court of Appeals has held that a treating physician’s testimony that they would not have done anything different is sufficient to uphold summary judgment. The Court of Appeals distinguished this line of cases by holding the testimony of an expert witness on causation should be considered in whether the treating physician’s actions may have been the proximate cause of the injury, despite the treating physician’s own testimony.

Take-home: As a technical legal matter, an opinion dispute between the expert and the treating physician can create an issue for the jury.

Orr v. SSC Atlanta Operating Company, 2021 WL 2702126 (July 1, 2021)

Georgia Court of Appeals Reverses Directed Verdict

The Georgia Court of Appeals has reversed a directed verdict for an emergency physician and his practice group. Plaintiff alleged that the physician improperly placed an intravenous line, leading to amputation. At trial, Plaintiff introduced the testimony of a critical care specialist on standard of care. The expert was not an emergency physician, but testified they had over 27 years of experience and had placed the catheter at issue during that time. On direct, the expert opined that the defendant violated the standard of care.

On cross, the expert testified that he had not placed a catheter like the one at issue in the emergency department in over 15 years. But, the expert testified that he placed such catheters in locations other than the emergency department as recently as five months before trial. The defendants moved for a directed verdict on the grounds that the expert was not qualified to testify to the standard of care in the emergency department setting. The trial court granted the motion. The Court of Appeals reversed, holding that questions about the adequacy of the witness’ opinion on standard of care were for the jury. Because the expert testified as to a deviation from the standard of care, there was evidence from which the jury could infer malpractice and thus defendants were not entitled to a directed verdict.

Take-home: This is a legal decision that is based on the standard for directing a verdict. On directed verdict, the question is whether there is an absence of any evidence, not whether the evidence is strong, credible, or “good.”

The case is Lockhart v. Bloom, ___ S.E.2d ___, 2021 WL 2765848 (July 2, 2021).



Court of Appeals Affirms Trial Court’s Denial to Add Treating P.A. and Reverses Summary Judgment

The Georgia Court of Appeals affirmed the trial court’s decision to deny Plaintiff’s motion to add the treating physician assistant as a Defendant. The Court further reversed the trial court’s grant of Defendant’s Motion for summary judgment based on standard of care and causation.

Plaintiff presented to the first hospital on October 11, 2014 with complaints of acute lower right leg pain. She reported the pain as a nine out of ten. After evaluation, the physician assistant prescribed pain medication and discharged Plaintiff. Defendant was not present during the physician assistant’s treatment, but later reviewed and signed the Plaintiff’s chart. On October 14, 2014, Plaintiff presented to a second hospital with swelling and discoloration in her right foot and worsening foot pain. After diagnosis, she underwent an open tibial thrombectomy that day. Ten days after the thrombectomy, Plaintiff again presented to the first hospital with a “cool to the touch,” discolored right foot. Plaintiff’s foot was ultimately partially amputated in December 2014. Plaintiff filed her lawsuit in June of 2016 alleging a failure to diagnose a serious arterial dysfunction. Plaintiff introduced experts who opined this failure to diagnose was a violation of the standard of care.

On October 7, 2016, Plaintiff filed a second amended complaint naming the physician assistant as a Defendant. Plaintiff did not file a motion to add a defendant and she did not move for leave to add a defendant. Additionally, Plaintiff failed to serve the physician assistant before the statute of limitations ended on October 11, 2016. The physician assistant entered a Special Appearance and filed a Motion to Dismiss. The Court affirmed the trial court’s denial of Plaintiff’s motion to add Defendant and granted the physician assistant’s motion to dismiss. The Court held the physician assistant did not receive notice of the action prior to the statute of limitations and the physician assistant did not know and had no way of knowing that she would be a defendant in the case. 

The Defendant then moved for summary judgment arguing Plaintiff failed to produce evidence that Defendant violated the standard of care or that Defendant’s alleged negligence was the cause of Plaintiff’s damages. The Court held the trial Court erred in granting Defendant’s summary judgment on standard of care because there was still a question as to whether Plaintiff was in fact stable and able to receive treatment as a nonemergency patient. The Court further held, based on the conflicting affidavits and testimony, a fact dispute remained as to whether a delay in treatment caused a misdiagnosis.

Take-home: At the very least, a potential defendant must know of the lawsuit prior to the statute of limitations running. However, it is imperative to always motion the court to add a Defendant and motion the court for leave to add that Defendant, when necessary. With respect to standard of care, whether a patient was non-emergent is based on the condition of the patient. It is the condition of the patient that controls, not the opinion of the physician. Seemingly, the condition of the patient is almost always a jury question. Lastly, on causation, a jury question will remain if there are conflicting affidavits and testimonies as to whether the process and methods of treatment were the cause of the underlying harm.

Connie v. Garnett, 2021 WL 2548834.

Georgia Court of Appeals Reverses Summary Judgment in Cervical Cancer Case

The Georgia Court of Appeals reversed summary judgment to an ob/gyn and nurse midwife in a case of alleged failure to diagnose cervical cancer. On September 11, 2014, the patient presented to a hospital with complaints of vaginal bleeding, reporting that she had an abnormal Pap smear. She was referred for follow-up with a physician.

The patient presented to the defendant ob/gyn group on November 7, 2014. The ob/gyn did not perform a physical exam or Pap smear, but ordered an ultrasound. The practice ordered a copy of the hospital records, which were faxed the morning of the visit, but the doctor did not see them. The patient returned on November 13, 2014 for the ultrasound and was seen by the midwife. The midwife did an exam for vaginitis but did not order a Pap smear. The patient did not return for follow-up care in 2015 or 2016.

In 2017, the patient was diagnosed with a uterine mass, suspected of being cancer. On follow-up, she was diagnosed with stage IV cervical cancer. The patient filed suit on June 22, 2018. After the patient passed away in 2019, the administrator asserted a wrongful death claim.

The ob/gyn group, doctor, and nurse midwife moved for summary judgment on expiration of the statute of limitations for the medical malpractice claim, arguing there was no misdiagnosis in 2014. The defendants also argued that the wrongful death claim was derivative and therefore failed as a matter of law. Defendants argued that because there was no misdiagnosis because a Pap smear would not have shown the presence of cervical cancer in November 2014, there could be no new injury as a matter of law. Plaintiffs claimed the statute of limitations accrued when the cancer metastasized based on the “new injury” exception to the two year statute of limitations. The trial court granted the motion.

The Court of Appeals reversed, holding that there was evidence in the record showing a genuine issue of material fact on the new injury exception to the statute of limitations. Specifically, the Court pointed out that Plaintiffs had produced expert testimony that the standard of care required the ob/gyn to perform a physical exam and Pap smear during the initial visit in November 2014 and that the results would have been abnormal. In addition, there was testimony that a physical exam would have revealed a suspicious lesion, requiring a biopsy. Lastly, the Court held that Plaintiffs had come forward with evidence that the cancer was present in 2014 because it was stage IV in 2017. The Court noted that the role in assessing evidence on summary judgment is not to resolve disputes in favor of any parties, but simply to assess whether there is a dispute.

Take-home: failure to diagnose cancer cases are difficult to assess in terms of application of the statute of limitations. They are fact-specific and, as this case makes clear, testimony/evidence specific.

The case is Tarver v. Sigouin, ___ S.E.2d ___ 2021 WL 2659563 (June 29, 2021).  

CSKL Wishes Those in Health Care Risk Management a Happy HRM Week, June 21-25, 2021

HRM Week is the American Society for Health Care Risk Management’s annual campaign to raise awareness to the importance of risk management and patient safety professionals. This year’s HRM week theme is Prepared for the Present, Planning for the Future, which appropriately highlights the key duties of any Health Care Risk Manager’s proactive role; to communicate, to educate, and to develop processes that reduce risk in patient care and institutional safety. 

An ever-evolving position, an HRM is a dynamic part of many health care organizations, whose role brings valuable change and undoubtedly saves lives.

Whether a Certified Professional of Health Care Risk Management (CPHRM) or if you found you way into the profession via practical experience and grit, we salute you! Your presence and dedication keeps pushing health care safety forward!

Click here to read up on ASHRM’s Health Care Risk Management Week!