Carlock Copeland Health Law and Regulation Update

logoHealth Law and Regulation Update

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 Suggests No Nonparty Apportionment of Damages When One Defendant Remains at the Time of Trial

With little to no discussion of statutory interpretation, the Georgia Court of Appeals seemingly held that O.C.G.A. §51-12-33(b) does not apply in cases with only one defendant at the time of trial, even if the case was initially “brought” against multiple defendants.

In a premises liability action arising from an armed robbery and shooting at an Atlanta CVS, the jury found that CVS failed to employ adequate security measures to protect its property. The jury found CVS 95% at fault, the plaintiff 5% at fault, and the nonparty shooter 0% at fault.

CVS asserted that the jury’s verdict was void because it improperly apportioned fault when it determined that the unidentified shooter was 0% at fault for plaintiff’s injuries. In addition to holding that the verdict was not void, the Georgia Court of Appeals alternatively held that any error by the jury was harmless because O.C.G.A. §51-12-33(b) did not apply. The Court relied on the recent decision by the Georgia Supreme Court in Alston & Bird v. Hatcher Management Holdings, 862 S.E.2d 295 (Ga.Sup.Ct. 2021) (“Hatcher III”), which held that reduction of damages based upon nonparty fault applies only in multiple-defendant cases. In Hatcher III, the case only had one defendant throughout the pendency of the action. The CVS case, by contrast, was initially brought against multiple defendants but had only one remaining defendant at the time of trial. The Court held that O.C.G.A. §51-12-33(b) does not allow a reduction of damages based upon nonparty fault in a case with only one named defendant by the time the case proceeds to trial.

Take-home: The apportionment statute may authorize a reduction of damages based upon nonparty fault only in cases with one remaining defendant at the time of trial.

The case is Georgia CVS Pharmacy, LLC v. Carmichael, ___ S.E.2d ___, 2021 WL 5049438 (2021).

Georgia Court Of Appeals Affirms Limitation of Hospital’s Vicarious Liability and Holds Nurse Cannot Opine on Cause of Death

The Georgia Court of Appeals affirmed a trial court’s ruling that a hospital cannot be held vicariously liable for an independent contractor physician based on written contract with corporate practice group. In addition, the Court held that a nurse is not qualified to offer an opinion on cause of death in a medical malpractice and wrongful death case.

Plaintiff sued an anesthesiologist and a hospital for vicarious liability for the anesthesiologist, alleging the treating physician was an employee of the hospital and not an independent contractor; therefore, the hospital is liable for his actions. After surgery, the anesthesiologist extubated the patient when the vital signs began to deteriorate. The anesthesiologist attempted to reintubate four times before calling a code blue. An emergency physician responded and successfully reintubated the patient. The patient developed and died from an anoxic brain injury.

The hospital moved for summary judgment under O.C.G.A. §51-2-5.1, which shields hospitals from vicarious liability of independent contractors under most circumstances. The evidence presented showed the hospital had a written contract with the anesthesiologist and the practice group. In opposition to the motion and in an attempt to hold the hospital liable for the acts of the anesthesiologist as an employee, Plaintiff argued that the contract did not unambiguously identify the anesthesiologist as an independent contractor. The trial court granted summary judgment and the Court of Appeals affirmed. The Court explained a hospital is not liable for the torts of a healthcare professional unless there is an employee relationship, which is established by the language of the contract. Here, the contract was clear that the corporation was an independent contractor and the physician was the sole shareholder, officer, and director of the corporation. In addition, the contract gave the corporation the sole authority to control and discharge the physician. As a result, the hospital could not be held vicariously liable.

Plaintiffs also argued the trial court erred in granting summary judgment based on a lack of evidence showing causation. The hospital moved for summary judgment, arguing that Plaintiff’s expert, a nurse practitioner, could not opine on cause of death as a matter of law. The trial court granted summary judgment to the hospital and the Court of Appeals affirmed. The Court held it was not within the scope of practice for a nurse practitioner to opine on cause of death. The Court distinguished an earlier case in which it held a nurse’s causation opinion fell outside of the realm of her expertise because opinions about medical diagnosis fall outside of the limits of the expertise of non-physicians.

Take-home: As a general rule, nurses (registered or advanced) are not qualified to offer medical causation opinions. In addition, the plain language of a contract may shield a hospital from vicarious liability under Section 51-2-5.1.  

The case is Chybicki v. Coffee Regional Medical Center, Inc. ___ S.E.2d___, 2021 WL 4987583 (2021).  


Georgia Court of Appeals Holds Adult Child Lacks Standing in Wrongful Death Case

The Georgia Court of Appeals reversed the denial of a motion for judgment on the pleadings, holding that an adult child does not have standing to sue for wrongful death when the decedent’s spouse is alive but estranged. Plaintiff is the adult child of the decedent, who was married but estranged from his spouse. Defendants moved for judgment on the pleadings on the grounds that the adult child lacked standing to sue under the Wrongful Death Act. Plaintiff countered that the trial court could act in equity to recognize the rights of the adult child under the ‘equitable exception’ to the ‘spouse standing’ rule. The trial court agreed.

In reversing, the Court of Appeals went through the jurisprudence of the ‘equitable exception’ for standing to sue under the Wrongful Death Act. First, the Court noted that a wrongful death claim in Georgia is entirely a creature of statute and in derogation of common-law, meaning that the statute is strictly construed with no exceptions. The Court then described the limited circumstances when equity will intervene, typically in the case of minor children of a decedent whose surviving spouse abandoned them and could not be located.

In this case, there was no evidence the surviving spouse had abandoned the adult child or that they could not be located. Rather, the decedent and spouse were simply estranged and the statute clearly gives the right to the surviving spouse to elect not to pursue the claim, even over the protests of an adult child. The Court ruled the trial court “impermissibly expanded” the equitable exception and reversed.

Take-home: standing in wrongful death cases matters. In some cases, it can be a challenge to figure out who the proper party is and the plaintiff may be reluctant to give details.

The case is Connell v. Hamon, __ S.E.2d ___, 2021 WL 4841043 (Ga.Ct.App. October 18, 2021).

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).