Carlock Copeland Health Law and Regulation Update

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Carlock, Copeland & Stair, 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.

Federal Judge Rules Public Interest Outweighs Minor’s Privacy Interest in Confidential Settlement

A recent decision by a Federal District Court Judge involving the settlement details of a minor’s medical malpractice case sheds light on how the plaintiff’s age can derail a plan even when all parties agree.

Defendants, especially medical providers, often ask for confidentiality as a term of a settlement agreement, if reached. There are many reasons that an individual provider, practice or hospital would not want a settlement amount or the settlement itself to be public knowledge. It goes without saying that if you are sued for what you do professionally, you don’t want the community knowing that you settled a claim, regardless of the reasoning behind the decision to do so or the strength of the claim itself.

There are also scenarios where the plaintiff does not want the settlement to be made public. A common scenario is when a plaintiff sues multiple parties and, for whatever reason, settles with one but not all of the defendants. At this point, the remaining defendants typically want to know all the terms of the confidential and negotiated settlement agreement. Can either the amount or other terms be used as leverage in negotiations or for the defense at trial? Understandably, the plaintiff does not want or often cannot share these terms. In the case of a claim brought on behalf of a minor, however, things can get tricky.

Minor settlements require court approval, and often the appointment of a conservator. See O.C.G.A. § 29-3-3. It is meant to protect the interests of the child. The submission of the settlement agreement and its terms to the court, however, makes those documents public record unless the court seals them. The court may seal the documents if the interests of the child outweigh the public’s inherent interest the same, and the presumption of public access. Typically, this means there is information about the minor which is private in nature and may cause the child harm if the public were to know – such as, the extent of the injuries or other personal health information. But what if the parties decide that the entire agreement (not just the amount) should be confidential?

In Willis v. United States of America, a trial court recently dealt with a negotiated settlement of a minor that needed approval, but where confidentiality was a key component of the agreement. The plaintiff brought a medical malpractice case against the US government, a doctor, a hospital, and a medical practice. The unique nature of the suing the government meant that the settlement was not a universal one involving all the defendants at the same time.

The plaintiff and the non-government defendants brought their settlement before the court for approval and seal. The parties noted that the remaining defendant did not object. The problem that the parties faced was that the only reasoning provided to the court as for the basis that the settlement terms be sealed, was that confidentiality was an express term.

The court denied the settlement agreement as negotiated. It found the argument that the confidentiality clause, although a key factor in the agreement, did not outweigh the public’s right to access court information. Furthermore, the court stated that the amount of the settlement alone did not warrant any redaction or sealing of records. The court found that the settlement agreement contained no additional private or sensitive information of the minor child that was not already public record, and that no party had sought to seal those documents prior to submitting the settlement for approval.

The court’s order offered a take it or leave it option. The parties could withdraw the settlement and continue with litigation if confidentiality was truly a non-starter, or, they could settle the case without the confidentiality clause and make it public record. The case is pending at this time.

Take home – when a minor is involved, it does not necessarily matter what the parties have negotiated, especially when weighing the public’s right to access information. While there are some courts that as a matter of course agree to seal settlements involving a minor, it is not always the case. The reasoning behind the ruling may lay the foundation for access to a settlement agreement of a former defendant or third party in discovery, which is typically objected to and often denied when pursued via a motion to compel.

Case is currently pending in the Southern District of Georgia – August Division; CV117-015.

The Eleventh Circuit Court of Appeals Affirmed the Grant of Summary Judgment in Favor of a Physician Medical Director of a Correctional Facility on a Claim for Deliberate Indifference Brought Pursuant to 42 U.S.C. 1983.

When Plaintiff arrived at the correctional facility in December 2012, he suffered from a “hammer toe” that he had managed for over twenty years by wearing “oversized shoes with extra pads.” When issued the standard footwear at the correctional facility, Plaintiff began to experience pain due to the hammer toe, so he was allowed to wear flip flops instead. In December 2013, Plaintiff consulted with a podiatrist who recommended he undergo surgery. The surgery had to be approved by the Medical Director. In January 2014, the Medical Director denied the request, and instead recommended conservative treatment of prosthetic shoes and pain medication, which have been known to improve pain related to hammer toe. In June 2014, the Medical Director denied another request by Plaintiff to undergo surgery. In doing so, he made a reference to the correctional facility’s coverage for the procedure, which allowed for coverage if the procedure was required based on the Director’s medical opinion. Between July 2014 and October 2014, Plaintiff began to be fitted with orthopedic shoes until they found the right fit. The shoes provided Plaintiff with relief. In June 2015, Plaintiff was transferred to another correctional facility, at which he ultimately underwent surgery on his hammer toe. He filed suit against the medical director alleging that the denial of the recommended surgery constituted deliberate indifference to his medical needs. The trial court granted summary judgment in favor of the Medical Director.
Summary judgment was proper because nothing the Medical Director did rose to the standard necessary to demonstrate an Eighth Amendment violation. The Director was not deliberately indifferent in denying the first request because conservative treatments have been known to help hammer foot, and it was the same manner in which Plaintiff had managed his pain for over twenty years. Further, Plaintiff was allowed to wear flip flops soon after experiencing pain. After that point, his pain was no worse than before incarceration. The denial of the second request did not constitute deliberate indifference because the request came before the Medical Director’s earlier recommendation to fit Plaintiff with orthopedic shoes had even been pursued or deemed unsuccessful. Ultimately, even though there was a delay in Plaintiff getting his surgery between his first request and the date of his procedure, there was no evidence that Plaintiff’s condition was in such an urgent need for surgery that more conservative measures could not be pursued first.
The Court of Appeals also found no error in the Medical Director’s referencing of the correctional institution’s insurance coverage because there was no evidence his decision was made solely on the availability of coverage for the procedure. To be sure, coverage was available if, in the Medical Director’s judgment, it was necessary. Additionally, the mere fact that the Medical Director chose a different course of treatment than Plaintiff’s podiatrist is not grounds for liability under the Eighth Amendment.
The takeaway is that a correctional physician may exercise his/her medical judgment in exhausting conservative courses of treatment before resorting to surgery, where there is no urgent need for invasive treatment and where there is no indication the patient is experiencing increased pain as a result of the conservative treatment.
The case is: CHRISTOPHER STEWART, Plaintiff-Appellant, v. SHARON LEWIS, Defendant, WAYNE WELLS, Defendant – Appellee, No. 18-10892, ___ Fed. Appx. ___, 2019 WL 5395797 (11th Cir. October 22, 2019).

Georgia Court of Appeals Affirms Verdict in South Georgia Nursing Home Case

The Georgia Court of Appeals rejected cross-appeals from a $7.6 million verdict against a nursing home, which was reduced to $1.6 million after reduction for apportionment to non-parties. Plaintiffs sued the Holly Hill nursing home for the death of Bobby Copeland, 71. Mr. Copeland had been a resident there for 11 years. In October 2012, he was observed by a nurse to have vomited and his abdomen was slightly distended. The nurse contacted a provider to report that he should go to the hospital. The provider ordered labs and an x-ray.

The following day, a physician examined Mr. Copeland and sent him to the hospital. He was seen in the emergency department by the facility physician and other providers. Mr. Copeland was then admitted to the ICU. He died later that evening from aspiration of fecal material, associated with a bowel obstruction.

The case proceeded to trial. The defense challenged the excusal of a venire panel member under a “reverse Batson” challenge. The jury returned a $7.6 million verdict, which was reduced to $1.6 million after apportionment of fault to the emergency department personnel and the hospital.

The Court of Appeals affirmed the trial court’s decision on the peremptory challenge, finding that the plaintiffs had an adequate race-neutral explanation for the challenge. The defense also appealed the denial of a directed verdict on a negligent staffing claim, asserting that it was a claim for professional negligence and there was no expert witness testimony. The trial court denied the motion and the Court of Appeals affirmed, holding that the negligent staffing claim in this case sounded in “ordinary” negligence because the evidence showed that the facility made a business decision to choose only certain shifts for full staffing and that those decisions were not based on professional judgment.

The plaintiffs appealed the apportionment of damages against the emergency department personnel, claiming the defense had not met the heightened evidentiary burden under O.C.G.A. §51-1-29.5 (the “gross negligence standard”). The Court held that there was competing evidence regarding whether Mr. Copeland was stabilized in the emergency department and thus the trial court was justified sending the issue of both “gross negligence” and the lower “ordinary professional negligence” to the jury. The Court also held that Holly Hill’s expert testimony regarding the care provided at the emergency department was sufficient to get the issue of “gross negligence” to the jury.

The plaintiffs challenged the apportionment of damages, claiming that the hospital should not have been a separate unit for purposes of apportionment from the personnel it employed, who were listed individually. The Court held that the defense had presented evidence that the hospital was independently liable, which justified a separate line on the verdict form. The plaintiffs also claimed that the jury only found the hospital vicariously liable for the acts of one of the individual physicians, but the Court pointed out that the question was not asked that way. Although plaintiffs’ counsel “wondered” whether the jury apportioned damages based on vicarious liability, the verdict form was taken at face value.

Take-homes: this was a detailed case with a lot of moving parts. Verdict forms in apportionment cases require close attention to the claims made. Remember, objections to the form of the verdict must be made while the jury is still empaneled and only a jury can reform a verdict form.

The case is Lowndes County Health Services, LLC v. Copeland, Court of Appeals of Georgia, October 10, 2019 — S.E.2d —- 2019 WL 5077718.

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 Holds that Forged Mammogram Reports Do Not Support Fraud Claim

The Georgia Court of Appeals has held that multiple plaintiffs could not recover against a hospital based on forged mammogram reports by its employee. The plaintiffs received mammograms at the hospital in 2008 and 2009. The employee was supposed to transmit the images to a radiologist for interpretation. Instead, for reasons unknown, the employee forged the reports as normal. The hospital discovered the forgeries, terminated the employment, refunded the money, and the employee was prosecuted.

Plaintiffs sued for malpractice, fraud, RICO violations, and other torts. Plaintiffs alleged that the proper interpretation of the mammograms showed evidence of cancer or other conditions that needed follow-up. Notably, the plaintiffs had follow-up mammograms after the fraud was discovered. To this, the plaintiffs claimed exposure to excess radiation. The Court held that Plaintiffs could not prevail on this claim without proof that they actually suffered “injuries” from having to undergo the second mammograms. In addition, the Court held that the plaintiffs failed to prove they suffered compensable damages as a result of the alleged fraud.

This is an interesting case because it would seem that the fraud itself – caused a sufficient legal injury to justify nominal damages and, potentially, punitive damages, against the employee but not the employer. However, it does not appear that issue was the subject of the appeal.

The case is Houston Hospitals, Inc. v. Felder, 2019 WL 2482099 (June 14, 2019).

Georgia Legislature Enacts Statute Protecting High-Low Agreements

On April 9, 2019, the Georgia General Assembly sent HB128 to the governor for signing. HB128 modifies the rules regarding insurance company and physician reporting of the “low” amount of a high-low agreement. Now, when the “low” amount is paid, the insurance company does not have to report the payment as a settlement to the Composite Medical Board and the physician does not have to update their profile. This makes Georgia law square up with the National Practitioner Databank Reporting rules and seemingly overturns a 2016 Georgia Attorney General opinion.

South Carolina Supreme Court Interprets Statute of Repose

The South Carolina Supreme Court interpreted South Carolina’s statute of repose applicable to medical malpractice actions, which requires an action to be commenced within “six years from [the] date of occurrence,” and, in a split decision, found the statute begins to run after each occurrence rather than the first occurrence.

In Marshall v. Dodds, Marshall was treated multiple times by Dr. Dodds over the course of many years, beginning in July 1999 and ending in September 2005.  In July 1999 Marshall presented to Dr. Dodds and Dr. Dodds noted elevated protein levels in Marshall’s urine but failed to run a test that would have shown that the protein was cancerous.  Over the course of Dr. Dodds’ treatment of Marshall, he repeatedly noted the increased protein levels but never ran the test to determine if the protein was cancerous.  The last time Dr. Dodds treated Marshall was in September 2005. In February 2010, Marshall was diagnosed with a rare type of blood cancer.  In February 2011, Marshall sued Dr. Dodds and another doctor for a failure to diagnose.

Defendants’ argued that the statute of repose began to run in July 1999 when Dr. Dodds first failed to diagnose Marshall with cancer, requiring Marshall to file suit by July 2005.  Because suit was not filed until February 2011, Marshall’s claims were time barred. The South Carolina Supreme Court disagreed.  The Court interpreted the statute, which it noted stated “occurrence” and not “first occurrence,” and determined that each time Dr. Dodds treated Marshall and failed to diagnose her, it was an “occurrence” under the statute.  Because suit was filed in February 2011, Marshall could maintain claims for any occurrences from up to six years prior, February 2005.  The last time Dr. Dodds treated Marshall and failed to diagnose her was in September 2005.  Accordingly, Marshall could maintain an action for those damages occurring within the statute of repose, but not for those occurring outside the statute of repose.

Take-home:  If a practitioner fails to diagnose a patient on multiple occasions, both within and outside of the statute of repose, that patient is not time barred from bringing an action for damages.  The patient, however, can only recover for those damages occurring within the statute of repose.

The case is Marshall v. Dodds, Case No. 27873 (S.C. Sup. Ct. filed March 27, 2019).

To read the Supreme Court’s opinion, please click here.

Georgia Court of Appeals Reverses Defense Verdict on Hearsay Ruling

The Georgia Court of Appeals has reversed a defense verdict in a medical malpractice case because the trial court improperly admitted hearsay testimony under the “learned treatise” exception. In Moore v. Wellstar Health, plaintiff sued a surgeon and an anesthesiologist after her husband died when he aspirated during rapid sequence induction.

The evidence showed that the patient had a high grade bowel obstruction. Plaintiff’s expert anesthesiologist contended that the standard of care required placement of a nasogastric tube before induction of anesthesia. The defense countered that placement of an NG tube after rapid sequence induction was reasonable.

The defense cross-examined plaintiff’s expert with a document published by the American Society of Anesthesiologists entitled “Committee on Expert Witness Testimony Review and Findings” regarding the testimony of a different expert in a different case. In the document, the ASA sanctioned an expert for testifying that the standard of care required placement of a nasogastric tube before rapid sequence induction. The Moore defense used the document to cross-examine plaintiff’s expert over objection. The jury returned a defense verdict.

The Court of Appeals reversed, holding that the document was hearsay and did not qualify as a “learned treatise” because it was not a published treatise, periodical, or pamphlet. Rather, relying on cases from other jurisdictions, the Court held that the “learned treatise” exception to the hearsay rule is limited and does not include documents that are litigation-inspired, even if they are published by a reputable entity. In addition, the Court held that the error was harmful because the use of the document implied that the plaintiff’s expert’s testimony was sanctionable and therefore not worth of belief.

Take-home: a similar theory has been leveled against a number of publications, including the widely-used ACOG guidelines regarding neonatal encephalopathy (the “Green Book”), among others. Practitioners should look carefully at documents they intend to use for cross-examination to make sure that they are admissible. Notably, the Court did not delve into whether the issue was admissibility into evidence versus use on cross-examination solely for impeachment.

The case is Moore v. Wellstar Health, 2019 Ga.App. LEXIS 170 (March 12, 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 Reverses Summary Judgment in Fraudulent Billing Case

The Georgia Court of Appeals has reversed the grant of summary judgment to the defendant in a case alleging billing fraud. Plaintiff sued her podiatrist, claiming the defendant did not perform the procedures for which she was billed. Plaintiff did not file an expert affidavit with the complaint. Defendant moved for summary judgment and the trial court granted the motion, holding that the question was one of professional judgment and therefore an affidavit was required.

The Court of Appeals reversed. As an initial matter, the Court pointed out that a motion to dismiss for failure to state a claim is the proper vehicle to dispose of a complaint in which there is no expert affidavit. Next, the Court held that the question of whether an expert would need to testify about the procedures was separate from the question of whether an expert affidavit is required with the complaint. The latter question turns on whether the claim is one for professional negligence as opposed to fraud. The Court relied on a long line of cases that distinguish claims for intentional conduct from claims for negligence. And the Court reaffirmed the rule that if a claimant alleges intentional conduct in the complaint and does not attach an affidavit, then cannot later change the case into a negligence claim, citing Walker v. Wallis, 289 Ga. App. 676 (2008).

Take-Home:  The lines between what is considered to be ‘simple’ negligence, professional negligence, or intentional acts and when an affidavit is required remain as cloudy as ever.

The case is Williams v. Murrell, 2019 Ga.App. LEXIS  80 (Feb. 22, 2019).