Georgia Court of Appeals Affirms Exclusion of Doctor’s Substance Abuse

In a lengthy ruling covering many issues related to a trial, the Georgia Court of Appeals affirmed the exclusion of a doctor’s past substance abuse issues on the grounds of relevance. In the case of Doherty v. Brown, et al., issued on November 18, 2016, the Court addressed numerous issues arising out of a $22 million verdict against a pain physician and his practice group. The Plaintiff claimed that the doctor’s past substance abuse issues went to the question of “patient safety.” The doctor moved in limine and the trial court granted the motion. When Plaintiff attempted to bring it up at trial, the doctor objected and the trial court sustained the objection. On appeal, Plaintiff claimed the evidence should have been admitted. The Court disagreed, holding that the trial court properly exercised its discretion to exclude the evidence because there was no proof the doctor was impaired at the time of the surgery at issue.

The take-home is that the appellate courts have repeatedly held that evidence of a physician’s past substance use or abuse is not relevant to the issue of malpractice unless there is proof of impairment at the time of the incident.

Georgia Court of Appeals Reverses for Exclusion of Affidavit

The Georgia Court of Appeals reversed a defense verdict on the grounds the trial court improperly “prohibited” a plaintiff from refreshing the recollection of a witness with an affidavit that was not disclosed in discovery.

Plaintiff alleged she suffered weakness in her legs, lost the ability to stand, and urinary incontinence following the second in a series of lower back injections performed by the defendant anesthesiologist. The second injection was performed on May 12. The anesthesiologist testified she assessed Plaintiff after the injection and there were no problems walking. The staff testified Plaintiff would not have been discharged if there were problems. On May 14, the anesthesiologist received a phone message from Plaintiff saying that her legs were “hardly working at all.” The anesthesiologist called Plaintiff, who said he was having spasms and pain, but did not mention other problems. The anesthesiologist testified she offered to see Plaintiff, among other things. Plaintiff disputed the anesthesiologist’s version of the events. Plaintiff testified that the anesthesiologist did not offer to see her and that she could not recall whether she told her about the urinary issues. On May 18, Plaintiff went to an orthopedist, who operated on her.

The key issue was the testimony of a fact witness doctor who employed the anesthesiologist, Dr. Gadlage. Plaintiff disclosed Dr. Gadlage’s name in interrogatory responses, but did not identify an affidavit she had obtained from Dr. Gadlage about a key phone conversation around May 14. It appears Plaintiff obtained the affidavit after responding to discovery initially, but did not supplement the discovery responses. Dr. Gadlage was listed in the pretrial order as a witness, but Plaintiff’s counsel told defense counsel that Dr. Gadlage was only a “character witness,” and would not be called on standard of care. Defendant did not depose Dr. Gadlage.

Dr. Gadlage testified at trial that he remembered talking with Plaintiff about pain, possibly weakness. He could not remember Plaintiff talking about the inability to walk or urinary incontinence. Plaintiff then sought to use the affidavit, presenting it for the first time. The defense objected. Plaintiff conceded at a sidebar that she had not disclosed the affidavit, believing it to be work product. The trial court prevented Plaintiff from using the affidavit, even to refresh Dr. Gadlage’s recollection. The defense won.

The Court of Appeals reversed, holding that prohibition of the use of the affidavit was legal error. Rather, the trial court should have continued the case, declared a mistrial, or allowed the defense to review the affidavit and take a deposition, if needed. The Court recognized that Plaintiff “acted purposefully” in failing to disclose the affidavit, but concluded that Dr. Gadlage was a known witness and that exclusion or prohibition was not the appropriate remedy.

The case is Anglin, et al. v. Smith, A16A1405 (October 12, 2016).

Georgia Court of Appeals Holds that Fall from Wheelchair is Ordinary Negligence

The Georgia Court of Appeals has held that a claim against a hospital for the negligence of a nurse involving the fall of a patient from a wheelchair is not a claim that requires an expert affidavit. Plaintiff is an elderly patient who used a cane to walk. Seeing the patient struggle, a nurse offered the patient a wheelchair for transport in the hospital. After moving the patient through the treatment area without incident, the nurse wheeled the patient back to the waiting room. Along the way, they encountered a door through which the wheelchair would not fit. The patient lifted out of the wheelchair but their pants leg got caught on the foot pedals. The patient fell and was injured.

Plaintiff filed the suit without an expert affidavit, claiming ordinary negligence. The trial court granted summary judgment to the hospital. The Court of Appeals reversed, holding that the record did not demonstrate that only medical people could transport the patient with a wheelchair. Similarly, the record showed that the nurse failed to follow the manufacturer’s instructions, forming the basis for the ordinary negligence claim.

As an aside, in a footnote, the Court noted that the hospital moved for a setoff of the patient’s medical bills for sums not charged or which the hospital paid for the patient. The Court declined to rule on that part of the appeal because the trial court did not rule on it.

The case is Byrom v. Douglas Hosp., 2016 Ga. App. LEXIS 543 (Oct. 4, 2016).

Georgia Court of Appeals Distinguishes Professional and Ordinary Negligence

In the case of Carter v. Cornwell, 2016 Ga. App. LEXIS 523 (September 21, 2016), the Georgia Court of Appeals affirmed the dismissal of a doctor for Plaintiff’s failure to file an expert affidavit, but reversed regarding the doctor’s practice group.  Carter was a longtime patient of Dr. Cornwell and his practice group. Dr. Cornwell wrote a prescription for Ms. Carter for 120 pills of hydrocodone. Before Ms. Carter left the office, Dr. Cornwell changed the number of pills to 180 on the same prescription.

Ms. Carter then went to fill the prescription at the local pharmacy. The pharmacy saw the altered prescription and then called Dr. Cornwell’s office. The on-call doctor covering for Dr. Cornwell did not know that Dr. Cornwell changed the prescription and did not call Dr. Cornwell for guidance. Ms. Carter was then arrested for altering a prescription to obtain a controlled substance.

Ms. Carter sued Dr. Cornwell and the practice group, but did not file an expert affidavit. Dr. Cornwell and the group moved to dismiss and the trial court granted the motion. The Court of Appeals affirmed the dismissal of Dr. Cornwell, holding that he was exercising professional judgment when he decided to change the number of pills and, by extension, the dosage, for Ms. Carter. Plaintiff argued that the decision to change the dosage may have been professional discretion (and therefore requiring an affidavit), but the act of altering the prescription was “administrative,” not professional. The Court of Appeals disagreed, concluding that the entire act fell within the scope of professional duties that require an expert affidavit.

As to the group, however, the Court of Appeals reversed. The Court held that the claims against the practice for failure to handle the on call responsibilities properly was not an act of “professional judgment or skill” because the question was one of simply verifying whether the patient was in possession of a lawful prescription.

Bottom-line – claims or ordinary, simple, and administrative negligence are surfacing frequently in cases and the rules about what is and is not a claim requiring an affidavit sometimes appear to be made on a case-by-case basis.

Beyond the Headline: Medical Error – the Third Leading Cause of Death in the US?

Headline on Yahoo! News last night (unrelated to Donald Trump) was “Medical error – the third leading cause of death in the US.” The article focused on a newly published article in the British Medical Journal, Makary MA, 2016:353:i2139 with the same title. Actually reading the article is much more enlightening than the headline. Contrary to the headline, the ultimate premise of the article is that the United States needs to adopt a uniform method of reporting deaths so that science can develop a true estimate of the number of “preventable” idiopathic (i.e., related to medical care) deaths. In fact, the authors admit that their headline is an estimate that needs “greater attention.”

The article starts off by defining “medical error” as “an unintended act (either of omission or commission) or one that does not achieve its intended outcome, the failure of a planned action to be completed as intended (an error of execution), the use of a wrong plan to achieve an aim (an error of planning), or a deviation from the process of care that may or may not cause harm to the patient.” This appears to be significantly broader than the definition of professional malpractice or medical negligence under the laws of most states. The authors then point out the obvious: death certificates provide inadequate information to use as a reliable source for determining whether a death is or is not related to a preventable medical error. Notably, the authors are sharp to alert readers that death certificates may not be completed by a medical professional of any kind and could include laypeople, such as funeral directors.

The authors devoted a significant amount of time to parsing through the myriad of “studies” published since the 1999 Institute of Medicine report, To Err is Human. The take-home message is that each of the studies involved a significant amount of statistical extrapolation. It is beyond the scope of this post to dive into whether the methodology of those studies was flawed.

The ultimate take-home message, buried in the middle of the article, is “deaths caused by errors are unmeasured.” The authors offer some useful suggestions to collect quality data so that a true estimate can be performed. Until then, the headline is likely to prevail.