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.

Georgia Supreme Court Affirms Practice Group is Vicariously Liable for Unnamed Doctor

The Georgia Supreme Court has affirmed that the plaintiffs in a medical malpractice case could hold a practice group vicariously liable for the alleged malpractice of one of its employed physicians who was not named in the lawsuit. In the case of Atlanta Women’s Specialists, LLC v. Trabue, Shannon Trabue suffered a brain injury as a result of a cardiac arrest in the days after giving birth. Ms. Trabue was treated by two physicians – Dr. Angus and Dr. Simonsen – both of whom were employees of Atlanta Women’s Specialists (“AWS”).

Plaintiffs sued Dr. Angus and AWS, but included allegations in the Complaint that AWS was vicariously liable for both Dr. Angus and Dr. Simonsen. Dr. Simonsen was not a separately named party in the complaint. At trial, defendants’ counsel asked the trial court to instruct the jury on apportionment of damages between Dr. Angus and Dr. Simonsen, as an unnamed party. Defendants did not file a notice of non-party at fault within the statutory time period. The trial court denied the motion. The jury returned a verdict for plaintiffs and found that both Dr. Angus and Dr. Simonsen were at fault. Defendants appealed and the Court of Appeals affirmed.

The Supreme Court affirmed the Court of Appeals’ decision. First, the Supreme Court held that plaintiffs adequately pled AWS’ vicarious liability for Dr. Simonsen. In so doing, the Court affirmed the general rule that a “plaintiff need not specifically name in the complaint each physician-employee whose acts or omissions form a basis for the claim of vicarious liability against” the employer. The Court rejected the argument that the affirmative statement in the complaint that Dr. Angus was directly liable excluded any allegation that Dr. Simonsen was also liable under notice pleading.

The Court also affirmed the trial court’s ruling that AWS could not seek apportionment by the jury for Dr. Simonsen’s negligence. Notably, the Court seemed to side-step the critical question – whether it would have been appropriate at all to have the jury apportion between Dr. Angus and his co-employee – by holding that defendants’ failure to give statutory notice was fatal. To this end, the Court held that “a defendant employee like Dr. Angus who wants to reduce a potential damages award against him by having the jury apportion damages between him and his defendant employer based on the fault of a nonparty co-employee must comply with the requirements of subsection (d).”

Justice Bethel dissented (a rarity in Georgia jurisprudence as of late) and Justice Warren concurred fully in parts 1 and 2 and in the judgment only in part 3. In his dissent, Justice Bethel wrote that AWS should have been permitted to apportionment with Dr. Angus based on subsection (2) of O.C.G.A. §51-12-33. That subsection reads “in its determination of the total amount of damages to be awarded, if any, shall … apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” The majority held that subsection (b) is not a standalone provision, but must be read in conjunction with the notice provision of subsection (d). Justice Bethel disagreed, writing that the hole in the majority’s reasoning is that it essentially imposes joint and several liability on AWS and Dr. Angus.

Take-home: This is an important case for all parties. On the defense side, the outcome can be avoided by filing a notice of non-party at fault if any other, unnamed employee might also have contributed to the outcome. On the plaintiff side, more employees will be named to avoid the potential hole of a non-party at fault. We are not addressing the potential conflicts of interest, which are very fact specific.

The case is Atlanta Women’s Specialists, LLC v. Trabue, ___ S.E.2d ___ 2020 WL 5752376 (Ga.Sup.Ct. Sept. 28, 2020).

The Georgia Supreme Court Holds that Damages May be Sought in Cases Arising Out of the Birth of a Child with Genetic Defects.

The Georgia Supreme Court has reaffirmed the long standing rule that being born does not amount to a legal injury but that other damages may be sought in cases arising out of the birth of a child with genetic defects. In Norman v. Xytex Corp., the plaintiffs purchased the sperm of Donor  #9623 from Xytex, a sperm bank. Xytex promoted Donor #9623 as one of its best donors on account of him being a Ph.D candidate with an IQ of 160 and having no history of mental health issues or criminal activity. Wendy Norman gave birth to a son, A.A., who was diagnosed with ADHD and Thalassemia Minor, an inheritable blood disorder of which Wendy Norman was not carrier. As he grew older, A.A. regularly had suicidal and homicidal thoughts, requiring him to be hospitalized for extended periods of time and take a host of medications. Through internet research, plaintiffs discovered that Donor #9623 falsely reported his education status, mental history, and criminal history to Xytex. It was also discovered that Xytex had not asked Donor #9623 for any verification, and a Xytex employee encouraged him to exaggerate his IQ and education.

Plaintiffs sued Xytex Corp for fraud, negligent misrepresentation, products liability and/or strict liability, products liability and/or negligence, breach of express warranty, breach of implied warranty, battery, negligence, unfair business practices, specific performance, false advertising, promissory estoppel, and unjust enrichment. The defendants moved to dismiss on the grounds that the claims ultimately amounted to “wrongful birth,” which is not a legally recognized cause of action under Georgia law. The trial court granted the motion to dismiss all counts except for the plaintiffs’ specific performance claim, ruling that they were all claims for “wrongful birth camouflaged as some other tort.” The Court of Appeals affirmed.

The Georgia Supreme Court affirmed in part and reversed in part. The Court held that Georgia law does not recognize a claim for wrongful birth, which is a claim in which the parents claim they would have aborted a child had they been fully aware of the child’s condition. The Court further held that Georgia law does not recognize claims for damages that depend on life as the injury. In reversing, however, the Court held that not all of Plaintiffs’ claims depended on A.A. being born alive as the injury upon which the damages are based. The Court held that plaintiffs could recover damages based on additional expenses incurred as a result of not being told the truth about Donor 9623 sooner, as well as damages under the Fair Business Practices Act for the difference in price between the cost of the sperm they received and the fair market value of the sperm that Xytex told them they were getting. Further, they may be entitled to punitive damages because one of Xytex’s employees encouraged Donor #9623 to falsify his history.

The important takeaway here is that a claim arising out of the conception or birth of a child may survive if the damages sought are not solely based on the child being born alive.

The case is Norman v. Xytex, ___ S.E.2d ___, 2020 WL 5752325 (Ga. Ct. App. September 28, 2020).

Georgia Court of Appeals Affirms Summary Judgment for Psychiatrist

The Georgia Supreme Court has affirmed summary judgment for a psychiatrist on a wrongful death claim filed by the widow of a man killed in a car accident by the psychiatrist’s patient. The patient was under the care of the psychiatrist for alcoholism and had been prescribed Lorazepam. The patient returned to Atlanta from a trip and scheduled an emergency visit with the psychiatrist. The patient instead went to a bar before going to the appointment. After the appointment, he returned to the bar and drank more. Later that evening, after drinking more, the patient struck Plaintiff’s husband and killed him.

Plaintiff sued the psychiatrist in “ordinary negligence” and professional malpractice. The trial court granted the psychiatrist summary judgment and Plaintiff appealed. The Court of Appeals affirmed, holding that there was no claim for “ordinary” negligence, either under the “Bradley Center” rule or because of violation of various statutes regarding involuntary commitment. In a word, the Court reaffirmed the rule that a third party cannot sue a professional for the acts of the professional’s patient because the duty to control the patient does not arise unless the professional exercises “legal authority” to “place restraints on the liberty” of the patient. Here, the patient was a voluntary outpatient, so the control element was missing. The Court also affirmed summary judgment on the professional malpractice claim because of lack of privity between Plaintiff and the provider.

Take-home: this case seems to strengthen the general rule regarding professional liability to third-parties after a slight weakening of the rule in cases like Peterson v. Reeves.

The case is Stanley v. Garrett, ___ S.E.2d ___, 2020 WL 5554398 (Ga.Ct.App. Sept. 17, 2020).

Georgia Supreme Court Affirms Assumption of Risk Charge in Malpractice Case

The Georgia Supreme Court has held there was enough evidence to support a charge of assumption of the risk in a medical malpractice case. Plaintiff claimed he fainted and fell out of a deer stand while hunting five days after heart surgery. Plaintiff and his wife sued his cardiologist, claiming he was given too much medication, which caused him to faint. A trial, the jury was charged on assumption of risk and the jury returned a defense verdict. The Court of Appeals reversed. The Supreme Court granted certiorari and held that there was enough evidence to charge the jury.

The evidence showed that Plaintiff knew he had surgery for cardiac issues and that he had been instructed not to engage in strenuous activity, including not lifting more than ten pounds, for at least seven days. Plaintiff disputed that he was told this and claimed he was not told about the specific risk of fainting. The Court of Appeals held that it was error to give the charge because “climbing into a deer stand was not a risk associated” with the physician’s duty, but fainting was a “side effect of the medication.” The Court of Appeals further wrote that the physician’s instructions not to engage in strenuous activity did not establish that Plaintiff knew he risked fainting if he did not follow them.

The Supreme Court affirmed the general rule that only slight evidence is necessary to justify a jury charge. And the Court held that it did not need to decide whether the evidence established assumption of the risk, only whether there was sufficient evidence to give the charge. Plaintiffs argued that because he did not know the specific risk of fainting, the charge should not have been given. The Court rejected this argument, reasoning that the Plaintiff does not need to know of the specific risk, only “a risk of physical injury” to get the charge of assumption of the risk because knowledge of any such risk amounts to a failure to exercise ordinary care and diligence for their own safety.

Take-Home: this was a battle over general v. specific risk. The Court’s ruling that a plaintiff need only be aware of a risk associated with their own conduct after medical treatment has wide-reaching implications for trial, especially in cases involving informed consent and discharge instructions.

Daly v. Berryhill, _ Ga. ___, 843, S.E.2d 870 (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.