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 Holds that Statute of Repose Prevents Adding New Doctor to Case

The Georgia Court of Appeals has held that a doctor could not be added to an existing lawsuit filed against her practice group and a physician in her practice group more than five years after the date of the negligent act or omission. In Preferred Women’s Healthcare v. Sain, the plaintiff originally sued an obstetrician and the group for malpractice arising out of an alleged failure to diagnose a malignancy on ultrasound. The ultrasounds allegedly showing the malignancy were performed in April 2012. The patient died of cancer in December 2013.

Plaintiff filed the original lawsuit in 2014 and only named one obstetrician and the practice group. In February 2017, Plaintiff deposed the ultrasound technologist, who testified that a second doctor’s “squiggly line” mark appeared on the ultrasound reports. In May 2017, Plaintiff deposed the second doctor, who confirmed that she provided care in April 2012 and reviewed the reports.

In June 2017, Plaintiff moved to add the second doctor. The second doctor opposed and claimed that the case against her was barred by expiration of the five year statute of repose. The trial court granted the motion to add and this appeal followed. The Court of Appeals reversed the trial court, holding that the five year statute of repose “destroys” the cause of action against the second doctor and that the otherwise liberal rules for adding parties and relation back of amendments do not apply once the statute of repose has expired.

Take-home: the statute of repose has always been a hard stopping point for medical malpractice claims and this case reaffirms this principle. The decision is timely as other cases support the notion that parties and claims may be added at various points before expiration of the statute of repose.

The case is Preferred Women’s Healthcare v. Sain, 2019 Ga. App. LEXIS 30 (Ga.Ct.App. Jan. 28, 2019

Georgia Court of Appeals Remands Case for Pain and Suffering Award

The Georgia Court of Appeals has reversed a jury verdict and remanded the case for retrial when the jury awarded past medical expenses but $0 for future medical expenses, past and future lost wages, and past and future pain and suffering. The Court held that the award of $0 was “so grossly inadequate” as to justify a new trial. The Court further held that it could not remand the case for a trial on damages only because the original jury apportioned 49% of the fault to the plaintiff. The case is Evans v. Rockdale Hospital, Ga.Ct.App. April 12, 2008.

Mrs. Evans presented to the emergency department at Rockdale Hospital after waking with the “worst headache of her life.” She told the nursing staff she thought she had food poisoning and the triage nurse failed to document the complaint of a headache. Mrs. Evans was worked up for digestive complaints and discharged. She followed up with a primary care physician. She continued to experience a severe headache for several days, eventually returning to the hospital. A CT scan showed she had suffered a stroke as a result of a ruptured aneurysm. At the time of trial, she was permanently disabled and required 24 hour attendant care.

At trial, Plaintiffs presented evidence of $1.2 million in past medical expenses, future medical expenses, past and future lost wages, and a day-in-the-life video, among other evidence, of pain and suffering. The jury returned a special verdict for the past medical expenses but $0 for all other items of damages, finding that Rockdale was 51% at fault and Mrs. Evans was 49% at fault based on what she complained of in the emergency department during the initial visit. Judgment was entered for just over $600,000, with an award for loss of consortium.

Plaintiffs moved for additur or for new trial on the ground that the award was so grossly inadequate as to be inconsistent with the preponderance of the evidence. The trial court denied the motion and the Court of Appeals reversed and remanded for a new trial on all issues. The Court held that Plaintiffs had presented evidence of past and future pain and suffering and that the law infers pain and suffering from personal injury. Because the jury awarded the past medical expenses and there was such evidence of pain and suffering, then, as a matter of law, the $0 award was grossly inadequate. The Court distinguished other cases in which there had been awards of special damages, but no pain and suffering.

Take-home message: this case probably does not have a lot of broad application, but is worth reading. We will monitor this case for further appeals.

Georgia Supreme Court Reverses Trial Court for Wrongly Giving an Ordinary Negligence Charge in a Medical Malpractice Case

On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.  On March 5, 2018, the Georgia Supreme Court reversed a $22 million verdict in a medical malpractice case, finding that the trial court had erroneously charged the jury on ordinary negligence.

On September 16, 2008, patient Ms. Brown had an epidural steroid injection administered by an anesthesiologist at a surgery center.  Ms. Brown was given the sedative Propofol prior to the procedure.  Her blood oxygen level was 100 percent when the procedure began.

Shortly after the procedure began, a pulse oximeter used to monitor the patient’s blood oxygen level sounded an alarm, indicating a drop in Ms. Brown’s oxygen in her blood.  Technicians and nurses in the room made efforts to increase the oxygen level.   The anesthesiologist stated that the machine was malfunctioning and that Ms. Brown’s true oxygen saturation level and breathing was fine.

Ms. Brown failed to resuscitate following the procedure, and EMTs responded to the practice’s 911 call for help.  The anesthesiologist told Ms. Brown’s daughter-in-law and the physician who admitted her to the hospital that the procedure had gone fine and Ms. Brown was simply having complications coming out of the anesthesia.  The anesthesiologist gave no indication that Ms. Brown might have experienced respiratory complications during the procedure.

Plaintiff’s counsel asserted both medical malpractice and ordinary negligence claims, including that the anesthesiologist improperly administered Propofol without positioning another anesthetist at the head of the table, failed to respond appropriately when the patient experienced respiratory distress and failed to contact emergency medical services promptly.

The trial judge charged the jury on both ordinary negligence and medical malpractice.

The Court of Appeals had concluded that the trial court charged correctly on ordinary negligence because a lay person would not need expert testimony to understand the meaning of data provided by pulse oximeters and blood pressure monitors and how best to respond to that information in the midst of a medical procedure.

The Georgia Supreme Court accepted certiorari and framed the issues as:  1) whether the trial court’s instruction on ordinary negligence was proper, and 2) if not, whether that error was harmful to the defendants.  The Supreme Court concluded that the ordinary negligence charge was improper and harmful to the defendants, ordering a retrial.    The Supreme Court disagreed with the Court of Appeals’ finding that responding to medical data from medical devices did not require medical judgment.

The case is Southeastern Pain Specialists, P.C. v. Brown, et al., Georgia Supreme Court No. S17G0733, decided March 5, 2018.

Georgia Supreme Court Reverses $3.7 Million Verdict on Foreseeability Grounds

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Goldstein Garber & Salama v. J.B., decided February 27, 2017, and determined that the Defendant was entitled to a directed verdict at trial.  Plaintiff was one of a number of patients who were sexually assaulted while sedated by a certified registered nurse anesthetist (CRNA) who worked at the Defendant’s dental practice as an independent contractor.  The acts of the CRNA were captured on his cell phone which was later discovered hidden in the practice’s employee restroom.  Prior to the discovery, the practice was unaware of the CRNA’s actions.  Plaintiff filed suit against the CRNA and the dental practice.  Plaintiff later dismissed the CRNA when he pled guilty to criminal charges and received a life sentence, but the case continued against the dental practice.  Plaintiff claimed that the Defendant was negligent in its supervision of the CRNA, and negligent per se based on O.C.G.A § 43-11-21.1(a) for failing to have required permitting to administer or supervise a CRNA administering general anesthesia.  After trial, a jury awarded the Plaintiff $3.4 million and apportioned 100% of the fault to the Defendant.  The Court of Appeals affirmed the trial court 4 to 3.

After granting certiorari, the Supreme Court determined that the CRNA was an independent and intervening third party wrongdoer responsible for the Plaintiff’s injury.  In this scenario, the Defendant may only be held liable for the actions of the CRNA if those actions were reasonably foreseeable, and a natural consequence of the Defendant’s failure to properly supervise him.  The Court was not persuaded by the Plaintiff’s argument that dentists are generally aware of instances where patients are abused while under anesthesia.  In this matter, the Court found that the Defendant had no prior knowledge of the CRNA’s intervening criminal acts, and that those acts were not reasonably foreseeable.  Furthermore, sexual assault is not the probable or natural consequence of failing to supervise an otherwise qualified nurse anesthetist.  Accordingly, a directed verdict was warranted.

The Supreme Court further held that the Court of Appeals erroneously found that sexual assault was a harm contemplated by the statute governing dentists and general anesthesia, O.C.G.A § 43-11-21.1.  In order for the Defendant to be found negligent per se for a violation of the statute, the Plaintiff must be considered to be within the class of persons that the statute was designed to protect.  Additionally, the harm suffered by the Plaintiff must be one that the statute contemplates guarding against.  In its ruling, the Court of Appeals cited a section in the same chapter as the above statute which stated the chapter’s purpose was to guard against unlicensed activities that negatively affect the “public health, safety and welfare,” and therefore would include sexual assault.  While the Supreme Court found that the statute applied to patients like the Plaintiff, it did not find that the statute applied to the harm.  The Court stated that the statute clearly applies to concerns regarding medical complications which may arise in a dental setting from the improper administration of anesthesia.  Because this would not include sexual assault, the trial court should have granted a directed verdict.  After ruling in favor of the Defendant, the Supreme Court declined to address whether the Defendant waived any objection to the apportionment of fault.

This is not the first time that the acts of this particular CRNA have been the basis of a lawsuit against a medical group.  In 2011, Copeland, Stair, Kingma & Lovell, LLP defended a group of plastic surgeons who had hired the CRNA as an independent contractor to administer anesthesia.  A similar video of a patient was discovered and that patient later filed a complaint alleging ordinary and professional negligence.  At the motion for summary judgment, Wade Copeland successfully argued that the CRNA’s acts were not reasonably foreseeable and that the surgical practice had no prior knowledge of the acts.  The Cobb County trial court’s decision to grant the Defendant’s motion for summary judgment was not appealed.

The take-home is that unforeseeable criminal acts, such as sexual assault, committed by an independent contractor may not be imputed to the hiring party without prior knowledge of wrongdoing by that particular actor.  Such acts are also not contemplated by statutes designed to regulate health care and medical professionals, and therefore may not be the basis of a negligence per se claim.