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 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)

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!

Georgia Court of Appeals Affirms Denial of Summary Judgment on Causation

A panel of the Georgia Court of Appeals has affirmed the denial of summary judgment, holding that the plaintiffs presented a jury question on whether the failure to follow chest pain protocols in an emergency department were the proximate cause of the patient’s death from an acute myocardial infarction.

The patient presented to the emergency department on July 26, 2014 by ambulance for complaints of vomiting and chest pain radiating into his left arm. The patient did not complain of chest pain in the ED. A nurse ordered an EKG and troponins. The computer report of the EKG read “borderline,” but the physician over-read was “no ischemic changes.” Likewise, the troponins were within normal limits.

The hospital’s policies and procedures required a provider assign all emergency patients to one of four tracks and the nurses are to follow orders for that track. If the patient has not been assigned to a track, the nurses are supposed to ask a provider to assign a track. Chest pain patients were to be assigned to tracks 1, 2, or 3 if the pain was suspected to be cardiac. For tracks 1, 2, or 3, the protocol called for serial EKGs and enzymes. In this case, the patient was not assigned to a track and the nurses did not request the physician do so.

The physician assessed the patient and discharged him based on the negative results in the ED and the report of a recent negative stress test. Although the patient had risk factors including high cholesterol, COPD, and a family history of coronary artery disease, among other things, the physician discharged the patient. The patient died the following morning at home of an acute myocardial infarction.

The hospital moved for summary judgment on the grounds that the nurse’s alleged negligence was not the proximate cause of the patient’s discharge. The emergency physician testified that he would have discharged the patient even if the nurse had questioned his decision. The trial court denied the motion, ruling that the “totality of the circumstances” surrounding discharge created a fact dispute for the jury. The Court of Appeals affirmed.

The Court held that because plaintiff has presented testimony from a nurse expert that the defendant nurse failed to ensure that the patient was assigned to a track or go up the chain of command, this “caused and/or contributed” to the death. The Court also held that because a physician expert witness testified that the discharge “almost certainly” led to the patient’s death, a jury question was created on proximate cause. The Court distinguished other cases in which the treating physicians testified they would have made the same decision even if they had been given other information because “there is evidence suggesting that the patient warranted care his treating physician did not provide him.” Because there was testimony that if the nurse had done things differently, “that would have made it more likely” for the patient to receive the care he needed from the physician, there was a fact dispute on causation.

Take-home: This is a pretty fact-specific case and without more detail from the opinion, it is hard to pin down specifically why the hospital’s arguments failed other than the general rule that questions of proximate cause are typically jury questions, especially when there is some evidence in the record.

The case is Evans v. The Medical Center of Central Georgia, 2021 WL 2450374 (2021).

Georgia Court of Appeals Affirms Each New Arbitration Provision a Patient Signs Constitutes A New Agreement

The Georgia Court of Appeals affirmed the trial court’s decision to deny Defendant’s motion to compel arbitration where Plaintiff previously signed an arbitration provision, but denied signing a subsequent, albeit identical, provision to arbitrate.

Plaintiff visited the hospital several times for unrelated procedures and was presented with the arbitration provision on each visit. On the March 2018 and April 2018 visits, Plaintiff did not sign under the provision. On the May 21, 2018 visit Plaintiff did sign the provision. On the June 4, 2018 and August 2018 visits, Plaintiff did not sign the provision. The August 2018 visit is the visit at issue.

Plaintiff alleged he suffered injuries due to Defendants professional negligence during the August 2018 surgical procedure. Defendants filed a motion to compel arbitration based on an arbitration provision in a consent Plaintiff signed during an earlier visit to the same hospital for treatment unrelated to the visit at issue in this lawsuit. The trial court denied the Defendant’s motion stating “re-presenting an arbitration agreement to a previously admitted patient constitutes an abandonment of any prior arbitration agreement signed by that patient.”

On appeal, Defendants argued Plaintiffs signature on the arbitration provision dated May 21, 2018 applied to all future admission. The Court disagreed, holding that Georgia law require us to give meaning to every term of a contract. The Defendant’s representation of the arbitration agreement at each visit constitutes an intent to offer the readmitted patient a new opportunity to accept or reject the arbitration. The Court held the each presentation of the arbitration agreement was an abandonment of the previous agreement and a new offer to either accept or reject arbitration.

Take-home: The most recent arbitration provision that a patient signed is the controlling agreement, regardless of previous visits at the same hospital and regardless of patient’s prior rejections or acceptions.   

Emory Healthcare, Inc. v. Farrell, S.E. 2d, 2021 WL 2217060 (2021).

 

Summary of Healthcare and Mental Healthcare Legislation From the First Session of the 156th Georgia General Assembly

The 156th Georgia General Assembly convened its first session on January 11, 2021 at the Georgia State Capitol in Atlanta.  Below is a summary of Healthcare and Mental Healthcare related legislation that passed from that first session.

Healthcare Legislation

  • HB 34: Audiology and Speech-Language Pathology Interstate Compact Act (https://www.legis.ga.gov/api/legislation/document/20212022/201674) – The Act enters Georgia into the Audiology and Speech-Language Pathology Interstate Compact (ASLP-IC), which allows professionals to practice across state lines without needing to obtain additional licenses. 11 states comprise the compact’s current membership, and an additional 11 states have pending legislation considering entry into the agreement.
  • HB 93: Health; eliminate duplicative state licensure and regulation of clinical laboratories (https://www.legis.ga.gov/api/legislation/document/20212022/200264) – HB 93 removes duplicative state licensure and regulation of clinical laboratories. Under the new legislation, clinical laboratories must be certified by or operating under a certificate of waiver from the federal Centers for Medicare and Medicaid Services (CMS). The bill struck the majority of Title 31, Chapter 22. Additionally, the bill updated references to clinical laboratory licensure found elsewhere in the O.C.G.A.
  • HB 128: Health; prohibit providers from discriminating against potential organ transplant recipients due solely to the physical or mental disability of the potential recipient (https://www.legis.ga.gov/api/legislation/document/20212022/202466) – The bill, titled Gracie’s Law, prohibits healthcare providers and other covered entities from using an individual’s disability as a basis to disqualify or deprioritize a candidate’s eligibility for organ transplantation or related services. The language of the statute allows an individual’s disability to be considered only where a physician finds the disability medically significant.
  • HB 141: Criminal procedure; requirements for awards made from Georgia Crime Victims Emergency Fund to medical service providers (https://www.legis.ga.gov/api/legislation/document/20212022/202443) – The Georgia Crime Victims Emergency Fund provides financial assistance to victims of some crimes. The new provision amends O.C.G.A. 17-15-8, addressing use of the fund for the payment of medical expenses. Medical service providers compensated under the statute will receive payment in accordance with the list of usual, customary, and reasonable charges published by the State Board of Workers’ Compensation unless a reasonable health care justification supports deviation from that list. Further, the amendment stipulates that acceptance of payment shall be considered payment in full.
  • HB 163: Community Health, Department of; submit state plan amendment to implement express lane enrollment in Medicaid (https://www.legis.ga.gov/api/legislation/document/20212022/200268) – The bill instructs the Department of Community Health to submit a state plan amendment to the U.S. Department of Health and Human Services creating an express lane for enrolling eligible children in the state Medicaid and PeachCare for Kids Program.
  • HB 234: Self-funded Healthcare Plan Opt-in to the Surprise Billing Consumer Protection Act (https://www.legis.ga.gov/api/legislation/document/20212022/201144) – The Surprise Billing Consumer Protection Act, passed last year, requires healthcare plans licensed by the Georgia Office of the Commissioner of Insurance to pay for covered services where a covered person sees an out-of-network provider at an in-network facility. However, the Act cannot mandate compliance from self-funded plans under the exclusive jurisdiction of the federal employment Retirement Income Security Act (ERISA). HB 234 allows otherwise exempt ERISA plans to voluntarily comply with the provisions of the Act and participate in the arbitration process.
  • HB 268: The Occupational Therapy Licensure Compact Act (https://www.legis.ga.gov/api/legislation/document/20212022/201689) – The Act enters Georgia into the Occupational Therapy Licensing Compact, which allows professionals to practice across state lines without needing to obtain additional licenses. 4 states comprise the compact’s current membership, and an additional 11 states have pending legislation considering entry into the agreement.
  • HB 271: Community Health, Department of; assess one or more provider matching payments on ambulance services (https://www.legis.ga.gov/api/legislation/document/20212022/201145) – The Act allows the Department of Community Health to assess provider matching payments on ambulance services as necessary to obtain federal funding through Medicaid.
  • HB 307: Georgia Telehealth Act (https://www.legis.ga.gov/api/legislation/document/20212022/202457) – HB 307 amends the Georgia Telehealth Act to expand the definition of telemedicine to include audio-only communications between a patient and provider. The amendment implements a series of restrictions on insurers, preventing actions that might limit access to telehealth services, such as vendor coverage restrictions, initial in-person visit requirements, or prescription restrictions that exceed applicable state or federal law.
  • HB 346: Jarom’s Act (https://www.legis.ga.gov/api/legislation/document/20212022/202461) – The Act authorizes emergency medical services personnel to administer hydrocortisone sodium succinate for patients with an adrenal insufficiency in adrenal crisis.
  • HB 454: Insurance; certain coverage requirements concerning providers that become out-of-network during a plan year (https://www.legis.ga.gov/api/legislation/document/20212022/202493) – HB 454 protects consumers who rely on a health insurer’s online provider directory during the open enrollment period. The Act requires an insurer to reimburse providers no longer in-network at their most recent contracted rate for up to 180 days after the provider’s contract terminates if the provider leaves the network after the enrollment period closes. The Act also prohibits insurers from terminating a provider from the insurer’s network during and up to 150 days after a public health emergency.
  • HB 458: Georgia Composite Medical Board; require certain training relating to sexual misconduct for members (https://www.legis.ga.gov/api/legislation/document/20212022/202496) – HB 458 requires training related to sexual misconduct and professional boundaries for healthcare providers and mandates such trainings for medical students as part of the curriculum. The Act further implements mandatory reporting requirements for providers with actual knowledge of another provider’s sexual misconduct. The Act also allows the Georgia Composite Medical Board to refuse licensure to a physician found guilty of sexual assault on a patient or to summarily suspend the license of a physician during the investigation of an alleged sexual assault on a patient.
  • HB 509: Insurance; require certain insurers to make at least one reasonably priced comprehensive major medical health insurance policy available (https://www.legis.ga.gov/api/legislation/document/20212022/202044) – Since its passing in 2010, the Patient Protection and Affordable Care Act has faced numerous obstacles, including extensive litigation and attempted legislative repeal. One of the hallmark protections of the PPACA includes a prohibition of eligibility rules that discriminate based on preexisting conditions or other health status-related factors. HB 509 anticipates the effect on consumers of a successful legislative or judicial repeal of the preexisting condition protection, requiring insurers to provide at least one reasonably priced policy with the same protections within 30 days of such repeal.
  • HB 567: Newborn Screening and Genetics Advisory Committee (https://www.legis.ga.gov/api/legislation/document/20212022/202512) – The Act establishes the Newborn Screening and Genetics Advisory Committee, charging the committee to consider and evaluate disorders added to the federal Recommended Uniform Screening Panel each year for inclusion in the newborn screening system. At the recommendation of the committee, the Department of Public Health may include these disorders in the screening system.
  • HB 653: Georgia Pharmacy Practice Act; pharmacy care (https://www.legis.ga.gov/api/legislation/document/20212022/202408) – The Act expands the definition of ‘Pharmacy care’ within the Georgia Pharmacy Practice Act to include ordering and administering viral and serology COVID-19 tests and other tests cleared or approved for home use by the FDA.
  • SB 4: Drug Abuse Treatment and Education Programs; patient brokering; prohibit; definitions; exceptions; penalties (https://www.legis.ga.gov/api/legislation/document/20212022/201183) – SB 4 prohibits payment or the offer to pay any remuneration to induce the referral of a patient or patronage to or from a substance abuse provider. The Act excepts remuneration not prohibited by the federal Anti-Kickback Statute [42 U.S.C. 1320a-7b(b)] and the associated safe harbors.
  • SB 5: Professions and Businesses; patient protection measures for patients undergoing sedation in certain settings (https://www.legis.ga.gov/api/legislation/document/20212022/201178) – SB 5 amends Title 43 to require board approved training in phlebotomy and other safety topics for individuals administering intravenous sedation during dental procedures at medispas.
  • SB 43: Noncovered Eye Care Services Act (https://www.legis.ga.gov/api/legislation/document/20212022/201762) – SB 43 expands the list of enumerated unfair methods of competition and unfair or deceptive acts or practices to prohibit insurers from requiring or stating or implying through explanation of benefit forms that an ophthalmologist or optometrist within its provider network must extend discounts to patients for noncovered eye care services.
  • SB 46: Health; certain medical personnel to administer vaccines during public health emergencies under certain conditions (https://www.legis.ga.gov/api/legislation/document/20212022/202495) – SB 46 allows emergency medical technicians and certified cardiac technicians to administer vaccines during a public health emergency. Additionally, the bill further allows anyone to opt out of the state-wide vaccine registry.
  • SB 80: Ensuring Transparency in Prior Authorization Act (https://www.legis.ga.gov/api/legislation/document/20212022/201779) – The act aims to promote consumer protection by adding transparency to the prior authorization (PA) process. The Act requires insurers to provide current PA requirements on their website as well as aggregate statistics on approvals, denials, and appeals. An insurer must communicate an authorization or adverse determination within 15 days (reduced to 7 days in 2023) of receiving the information needed to make the decision. The Act imposes a prohibition on PA requirements for emergency services. Violations of these requirements result in an automatic authorization of the related healthcare service unless the insurer can demonstrate good cause, good faith, and no prejudice to the covered person.
  • SB 215: Regulation of Hospitals; certified medication aides to administer certain medications to nursing home residents (https://www.legis.ga.gov/api/legislation/document/20212022/202184) – SB 215 allows nursing home facilities to employ certified medication aides to assist with the administration of certain medications within the facility. The Act enumerates the tasks an aide can perform and establishes supervision and review requirements for the nursing facilities.
  • SB 235: Offenses Against Public Order; offense of wearing a mask, hood, or device which conceals the identity of the wearer (https://www.legis.ga.gov/api/legislation/document/20212022/202181) – The bill created a statutory exception to the statute for masks worn to prevent the spread of COVID-19 or other infectious diseases.

Mental Healthcare Legislation

  • HB 395: The Professional Counselors Licensure Compact Act (https://www.legis.ga.gov/api/legislation/document/20212022/201317) – The Act enters Georgia into the Professional Counselors Licensure Compact, which allows Licensed Professional Counselors to practice across state lines without needing to obtain additional licenses. Georgia is the first state to enter the compact, and four states have pending legislation considering entry into the agreement.
  • HB 591: Mental health; marriage and family therapists to perform certain acts which physicians and others are authorized to perform (https://www.legis.ga.gov/api/legislation/document/20212022/202538) – The Act expands the list of mental health professionals allowed to perform certain services relating to emergency involuntary treatment to include marriage and family therapists. Additionally, the Act creates a facility and state level reporting requirement for these circumstances.

For more information on the Georgia General Assempbly and the 156th Session specifically, please click here.

 

Georgia Court of Appeals Affirms Summary Judgment in Battery Case

The Georgia Court of Appeals affirmed summary judgment for a defendant hospital in a medical malpractice case in which the plaintiff changed their theory to battery. Plaintiff alleged a nurse employee failed to deflate the balloon in a catheter before removing it in violation of “basic and appropriate standard of care for nursing.” Plaintiff voluntarily dismissed the case without prejudice and then renewed it, without any specificity as to the legal theory of recovery.

Following discovery, defendant moved for summary judgment on the grounds that plaintiff had failed to come forward with expert witness testimony in support of the professional malpractice claim. At a hearing, plaintiff’s counsel moved for an extension of time to obtain expert testimony and argued that the complaint raised an issue as to simple battery. Plaintiff contended that he withdrew consent for removal of the catheter when he “vehemently” protested and telling the nurse to stop after she started the removal.

The trial court granted summary judgment to the hospital on professional malpractice for failure to have expert testimony. The trial court also granted the motion because plaintiff failed to show that it was medically feasible for the nurse to stop withdrawing the catheter when plaintiff withdrew his consent. Plaintiff appealed.

On appeal, plaintiff argued that there was a fact dispute regarding simple battery. The Court disagreed, holding that the absence of evidence on whether it was medically feasible to stop withdrawing the catheter at the point at which consent was revoked justified summary judgment. Also on appeal, plaintiff argued that the trial court should have let the case go forward on a simple negligence theory. The Court again disagreed, holding that plaintiff failed to assert a simple negligence claim in any of the pleadings or in opposition to the motion for summary judgment.

Take-home: this case reaffirms the general rule that the Court of Appeals will not review a matter that was not raised in the trial court and preserved as legal error.

The case is Wentz v. Emory Healthcare, Inc., ___ S.E.2d ____, 2021 WL 2024826 (2021).

Georgia Court of Appeals Affirms Defense Verdict in Case of Altered Records

The Georgia Court of Appeals has affirmed a defense verdict in a case in which the plaintiff claimed that altered records by a non-party was reversible error. In 2012, Plaintiff was diagnosed with stage 3 breast cancer. A surgeon performed a mastectomy and then plaintiff underwent chemotherapy with the defendant oncologist. A year later, the surgeon obtained a PET scan and an MRI in preparation for reconstructive surgery. The PET scan showed a nodule behind the sternum and the radiologist recommended further imaging. Plaintiff met with the surgeon, but was not told about the abnormal result.

The following month, the defendant oncologist met with Plaintiff and told her there was no evidence of disease. The oncologist documented she would follow up on the results of the PET scan and CT scan. Apparently, the defendant oncologist did not follow up, assuming the ordering surgeon did. The cancer returned but was not discovered until 2015, at which point Plaintiff was diagnosed with stage IV cancer.

Plaintiff alleged that the defendant oncologist failed to follow up on the PET scan while documenting there was no evidence of disease. At trial, Plaintiff sought to exclude the non-party surgeon’s records, which contained two slightly different versions of a note regarding the discussion about reconstructive surgery and the results of the PET scan. The inference from the altered record was that Plaintiff was non-compliant with treatment. Plaintiff moved to exclude records because the non-party surgeon altered the note after litigation, that the record was not certified, and that the alteration was a criminal violation. In response, the defendant oncologist, who wanted to use the record to point the finger at the non-party surgeon, submitted a certification for the records. The trial court denied the motion and admitted the records. At trial, the defendant oncologist did not put up evidence or argue that Plaintiff was non-compliant.

Plaintiff claimed on appeal that the records should not have been admitted because they were altered fraudulently and therefore did not fall within the business records exclusion. The Court of Appeals affirmed, holding that it was highly probable that the records did not result in harmful error, meaning even if it was error, it did not lead to the defense verdict. The Court reasoned that Plaintiff had to prove their case against the defendant oncologist and that because the defendant oncologist did not claim Plaintiff was non-compliant, the mere fact that the non-party defendant surgeon suggested she was did not cause the defense verdict.

Take-home: harmful error remains the test for appellate rulings in Georgia. This is a good reminder that the Georgia Court of Appeals is a court of errors, not a court of review, which means that it has to be a legal error that affects the outcome to result in a reversal.

The case is Ross-Stubblefield v. Weakland, ____ S.E.2d ___, 2021 WL 2010086 (May 20, 2021).