Eric Frisch obtained summary judgment for a lawyer and his law firm in a case involving a mistake in a conveyancing deed. Plaintiff was the conservator for the seller of land. The lawyer closed on the transaction. An error in the legal description resulted in an overconveyance. The lawyer discovered the mistake later and attempted to correct it, but the conservator rejected the attempts. The conservator sued for “negligence,” claiming that the seller relied on the attorney to draft the conveyancing deeds for her benefit. The trial court rejected this claim, ruling that in the absence of an attorney-client relationship, the closing attorney did not owe a legal duty of care to the seller. The trial court also ruled there was no evidence to support a claim of a voluntary undertaking that increased the risk of physical harm under the Restatement of Torts, 2d.  

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Eric Frisch obtained a defense verdict in a wrongful death case for an electrophysiologist. The patient died of a puncture following a puncture of the superior vena cava during a laser-guided lead extraction procedure performed in an electrophysiology lab. Plaintiffs claimed the procedure should have been performed with the ability to open the chest immediately and repair the hole.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Eric Frisch and Mike DiOrio participated in the annual Emory Healthcare/American Heart Association golf tournament at East Lake Golf Club on August 14, 2017. The Firm was a silver sponsor. Emory Healthcare has a long tradition of supporting the American Heart Association. Over the past 15 years, Emory Healthcare has raised over $4 million through employees participating in the Heart Walk. Through these efforts, the American Heart Association has been able to invest nearly $15 million back into the Atlanta area through research grants, advocacy efforts, and community health education programs annually. Emory alone has received over $7.5 million dollars in active research grants from the American Heart Association.

Eric Frisch presented Neonatal Brachial Plexus Palsy at the ACI Obstetric Malpractice Claims Conference. The conference was June 26-27 at The Union League of Philadelphia. Eric’s presentation was on June 26 at 10:30 a.m. Please click here for more information on ACI Obstetric Malpractice Claims and future conferences.

Eric Frisch and Michael DiOrio attended the 32nd Annual Medical Malpractice Liability Seminar held from November 3-5 at the Ritz Carlton, Amelia Island, FL.

Eric Frisch participated as a faculty member at ACI's 15th Obstetric Malpractice Conference held June 21-22 in Philadelphia. Eric presented, You Can’t Control What You Can’t Control: The Challenges of Informed Refusals and Home Births. 

Eric Frisch participated in an ethics panel discussion at the Daily Report's In-House CLE Seminar held on March 15, 2016 at Cumberland Maggiano's.

February 19, 2016 Carlock, Copeland & Stair, LLP is proud to announce our lawyers selected for inclusion on the Georgia Super Lawyers® and Rising Stars® lists for 2016. Thomas S. Carlock and Johannes S. Kingma have been selected for inclusion on the Top 100 Super Lawyers® in the State of Georgia. Only five percent of the lawyers in the state are named by Super Lawyers®. The selections for this esteemed list are made by the research team at Super Lawyers®, which is a service of Thomson Reuters. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check. Top 100 for the State of Georgia - Super Lawyers® Thomas S. Carlock - Top Rated Civil Litigation Attorney in Atlanta, Georgia Johannes S. Kingma - Top Rated Professional Liability Attorney in Atlanta, Georgia Super Lawyers® Thomas S. Carlock - Civil Litigation: Defense Wade K. Copeland - Civil Litigation: Defense Eric J. Frisch - Personal Injury Medical Malpractice: Defense Johannes S. Kingma - Professional Liability: Defense D. Gary Lovell, Jr. - Personal Injury Medical Malpractice: Defense David F. Root - General Litigation Douglas W. Smith - Personal Injury General: Defense Kent T. Stair - Professional Liability: Defense Frederick M. Valz, III - Insurance Coverage Rising Stars® is a listing of exceptional lawyers who are 40 years of age or under, or who have been practicing for 10 years or less, and have attained a high degree of peer recognition and professional achievement. Only 2.5 percent of the total lawyers in the state are honored on the Rising Stars® list. Rising Stars® Shannon M. Sprinkle - Professional Liability: Defense Peter Werdesheim - Professional Liability - Defense

Eric Frisch presented at the American Conference Institute's 14th Annual Advanced Forum on Obstetric Malpractice Claims in Philadelphia, June 23-24, 2015. His covered topic was "The Anatomy of an Obstetric Malpractice Case: An Examination of Every Stage and Trial Techniques".

Eric Frisch was a panelist at the Appellate Practice Seminar for the State Bar of Georgia on "Amicus Briefing – When and How to Utilize Friend of the Court Briefing" on February 20, 2015.

Copeland Stair Valz & Lovell, LLP is proud to announce that several of our lawyers have been selected for inclusion on the Georgia Super Lawyers® and Rising Stars® lists for 2019. Super Lawyers recognizes attorneys who have distinguished themselves in their legal practice. Attorneys are chosen for this honor through a nomination process, peer review by practice area and independent research on candidates. The lengthy process identifies lawyers who have attained a high degree of peer recognition and professional achievement.  Meet our Super Lawyers® and Rising Stars®! Super Lawyers®, only five percent of attorneys in the state of Georgia are selected for inclusion in Super Lawyers list. Our Super Lawyers are: Wade K. Copeland Eric J. Frisch D. Gary Lovell, Jr. Rolfe M. Martin Jay M. O'Brien David F. Root Douglas W. Smith Kent T. Stair Fred M. Valz Rising Stars® list recognizes the top up-and-coming attorneys in the state – those who are 40 years old or younger, or those who have been practicing for 10 years or less. No more than 2.5 percent of eligible attorneys are named to the Rising Stars® list, here is ours in Atlanta: Melissa L. Bailey Please click here to read about our South Carolina Super Lawyers®  and Rising Stars®!

Health Law and Regulation Update Blog Post by Eric Frisch The Georgia Court of Appeals has reversed the trial court’s dismissal of a medical malpractice case based on deficiencies in the qualifications of an expert witness. Plaintiffs are the parents of an 18 year old who died of complications from lupus. Plaintiffs sued a psychiatrist and their employer for failure to recognize and treat timely the signs of lupus. Plaintiff attached to the complaint the affidavit of an expert rheumatologist, who opined that he was familiar with the signs and symptoms of lupus. Defendants moved to dismiss, arguing that the expert was not qualified because he is not a psychiatrist and for lack of specificity regarding the alleged negligent conduct. Plaintiffs amended the affidavit with more detail in response. The trial court held a hearing and granted the motion, ruling that the expert did not have sufficient expertise or experience to opine about the standard of care applicable to a psychiatrist. The Court of Appeals reversed. First, the Court agreed with the trial court that Plaintiffs’ expert had sufficient knowledge of the signs and symptoms of lupus generally, satisfying the basic requirements of 24-7-702(c). Next, the Court held that Plaintiffs’ expert met the standards for familiarity with the standard of care, having actively practiced in diagnosing and treating lupus for more than three of five years before the incident. Finally, the Court reversed based on precedent that Plaintiffs’ expert did not have to be a psychiatrist or having specialized knowledge of the standard of care applicable to psychiatrists. The Court did not offer a lot of reasoning on this last point other than concluding that because the expert was otherwise qualified, it was not necessary for Plaintiffs’ expert to be a psychiatrist. Take-home: It remains difficult to get a case dismissed for an insufficient expert affidavit. It can happen sometimes, but it is a nuanced and fact-specific analysis. The case is Russell v. Kantamneni, ___ S.E.2d ___, 2022 WL 1576068 (Ga.Ct.App. May 19, 2022). Click here to subscribe to CSVL's Health Law and Regulation Update Blog.

Health Law and Regulation Update Blog post by Eric Frisch. The Georgia Court of Appeals reversed summary judgment and remanded for further proceedings a negligent credentialing claim against a staffing company that is not a hospital, medical facility, or clinic. Plaintiff originally asserted claims against a CRNA, supervising physician, and a clinic arising out of the death of a patient at the clinic. At the time, the CRNA worked at the pain clinic under a services contract with the defendant staffing company. The CRNA had three prior disciplinary actions in Alabama and Georgia and had another patient complication almost 2 years earlier at the pain clinic. Plaintiff settled with the CRNA, supervising physician, and clinic, who obtained a release of all claims, including vicarious liability. Plaintiff then sued the staffing company for negligent hiring, training, credentialing, retention, and supervision of the CRNA, medical malpractice, imputed/vicarious liability, corporate negligence, and other claims. The staffing company moved for summary judgment and the trial court granted the motion. The trial court ruled that the CRNA was an independent contractor, the settlement agreement barred the vicarious liability claims, and the negligent hiring and retention claims failed because there was no evidence that the CRNA’s acts or omissions caused the patient’s death. The Court of Appeals affirmed on everything except the negligent credentialing claim. The Court held there was no evidence the staffing company ratified the acts of the independent contractor CRNA or that Plaintiff was a party to the professional services agreement such that he could recover under it. Of note, the Court wrote that it had not found any binding authority addressing whether a negligent credentialing claim could lie against an entity like a staffing company that is not a hospital, clinic, or similar medical facility. Based on expert affidavits regarding the underlying events, the Court held the negligent credentialing claim should be remanded for briefing on the issue of whether a staffing company can be held liable on this theory. Take-home: This was a factually complex opinion that turned on several different points. It is worth keeping an eye on this case to see whether the negligent credentialing claim comes back up on appeal. The case is Miller v. Polk, ___ S.E.2d ___ 2022 WL 128662 (April 29, 2022). Please click here to subscribe to CSVL's Health Law and Regulation Update Blog.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals affirmed the denial of a motion to dismiss and to compel arbitration in a medical malpractice case, holding that a husband’s signature on a residency agreement containing an arbitration provision is not binding on the decedent, even if the husband was also the decedent’s power of attorney. In this case, the decedent executed a power of attorney, designating her husband to sign her in or out of any hospital or nursing home, among other things. The decedent was then admitted to a skilled nursing facility. The admission paperwork included an arbitration provision. The form contained multiple signature lines for “resident,” “responsible party,” “resident’s representative,” and “legal representative.” Decedent’s husband signed the form as “responsible party” and “resident’s representative.” The same form included checkboxes underneath “resident representative” and “legal representative,” including “spouse,” which was checked. The form also included a checkbox for “agent under a power of attorney,” which was not checked. After suit was filed, the facility moved to dismiss or to compel arbitration. The trial court denied the motion and the Court of Appeals affirmed. The Court held that under controlling case law and basic contract principles, the trial court correctly determined that Decedent’s husband only signed the residency agreement in his capacity as the spouse and not in his capacity as an agent, power of attorney, or fiduciary. Notably, the Court wrote that the mere existence of a power of attorney, without more, does not determine whether the person has acted in that capacity when they signed. Further, the Court stated “we now hold that the existence of a POA between spouses, standing alone, is insufficient to bind the principal” under the facts of the case. Part of those facts included the absence of any evidence that decedent was incapacitated. Take-home: Courts will strictly construe arbitration agreements. Any entity seeking to use an arbitration provision should review the current cases and consider revising the agreements. The case is C.R. of Thomasville, LLC v. Hannaford, __ S.E.2d ___, 2022 WL 1012952 (Ga.Ct.App. April 5, 2022). Click here to subscribe to CSVL's Health Law and Regulation Update Blog.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Senate passed HB961 to fix O.C.G.A. §51-12-33 and to permit apportionment of damages in single defendant cases. The bill should now head to the Governor’s desk and we would expect it to be signed into law. It is unclear whether it would be retroactive or apply to existing cases at this time. Stay tuned for more updates. To subscribe to CSVL's Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals vacated a $3 million verdict in a medical malpractice and wrongful death case and remanded for a new trial on the grounds that the claim was brought by the wrong party. Plaintiffs were the mother and adult children of Francis Mitchell, who died of a bowel perforation following removal of an ovarian mass. Plaintiffs alleged the perforation occurred during the surgery. They also alleged that surgeon’s office staff failed to document properly and relay to the patient information made by the family after surgery. Plaintiffs sought recover for ordinary negligence for the failure to document. The jury returned a general verdict. On appeal, Defendants claimed that the Plaintiffs were not the proper parties to bring the wrongful death action because Ms. Mitchell had an estranged but living husband. The Court of Appeals agreed, holding that Georgia’s wrongful death statute specifically lays out who has standing to sue, starting with the surviving spouse. Relying on a limited equitable exception, the trial court ruled that Ms. Mitchell’s mother and adult children could bring the claim because Ms. Mitchell’s husband was not. However, the Court of Appeals affirmed that the equitable exception is limited to cases involving minor children only. The Court of Appeals affirmed the denial of a directed verdict on the ordinary negligence claim. The Court held that Plaintiffs produced some evidence that the failure to document the phone calls “impeded communication with Mitchell’s health care team and violated the medical practice’s own internal policies.” The Court further held that the jury was authorized to conclude that if the staff had properly recorded the calls, Ms. Mitchell would have been sent back to the hospital, at which point she had a 50 percent chance of survival. Take-home: Georgia’s wrongful death statute is strictly construed and checking the proper parties is a key part of the defense. The appellate courts seem open to allowing more claims of “ordinary negligence” to proceed to the jury and that trend is expected to continue. The case is Northeast Georgia Medical Center, Inc. v. Metcalf, __ S.E.2d ___, 2022 WL 8722220 (Ga.Ct.App. March 24, 2022). Click here to read similar articles or subscribe to CSVL's Health Law and Regulation Update Blog.

CSVL Atlanta Partner Eric Frisch presented on professionalism and civility at Emory Law School on March 18, 2022. Mr. Frisch participated with SEABOTA chapter president Geoff Pope and Fulton County Superior Court Judge Kelly Lee Ellerbe in a program called Civility Matters. The presentation included a panel discussion on how to deal with real-world challenges in the setting of civil cases, including balancing zealous advocacy with civility and respect for opponents and counsel.

Health Law and Regulation Update Blog Post by Eric Frisch. In a pair of decisions related to the enforceability of arbitration provisions in the healthcare context, two panels of the Georgia Court of Appeals reached opposite conclusions recently. In the first case, the Court of Appeals reversed a trial court’s ruling that an arbitration provision was procedurally unconscionable and therefore unenforceable. An elderly patient moved to skilled nursing facility. Before admission, the patient’s daughter and power of attorney faxed the facility of the power of attorney form. Although the facility received the power of attorney, an employee presented the patient “89 pages of admissions documents” on arrival and without the daughter present. The documents were “prepopulated” with spaces for the signatures of both the patient and the daughter. The patient died following a fall and the family filed suit. The facility filed a motion to dismiss and to compel arbitration, which the trial court denied. The trial court ruled that the facility failed to determine the patient’s mental status or ability to read before having them sign the paperwork, the failure to have the daughter sign the paperwork when knowing she was the power of attorney, and failure to give copies of the paperwork to everyone. The trial court ruled that the provision was unenforceable because it was procedurally unconscionable. The Court of Appeals reversed, holding that, despite the trial court’s conclusions, the evidence showed that the patient was competent, the financial power of attorney did not divest the patient of the authority to enter into the agreement, and the fact that it was “prepopulated” was not a sign of unconscionability. The Court further held that the failure to give the patient and the daughter copies did not relate to the making of the agreement or fraud to induce an unsophisticated party into signing. The case is PruittHealth-Augusta, LLC v. Lyell, 2022 WL 590675 (Ga.Ct.App. Feb. 28, 2022). In the second case, the Court of Appeals affirmed the denial of a motion to dismiss and compel arbitration. This case arose out of claims related to complications from delivery at a hospital. The patient – a pregnant mother – signed two forms for consent to treatment that contained identical arbitration provisions. The arbitration provision stated that they had authority if they were signing on behalf of a child or other person for whom they are legally responsible. The form then had multiple signature lines for “patient or patient representative.” The mother signed both forms on both signature lines but did not include a statement indicating her relationship to the patient. Following a difficult delivery, the baby died two weeks later. The Court of Appeals affirmed the denial of the motion to dismiss and compel arbitration. Specifically, the Court held that because the mother only signed in her personal capacity and not as the legal representative of the unborn child, the arbitration provision was not enforceable. The Court also found it significant that the unborn child was not identified in the documents as “the patient.” The case is Emory Healthcare, Inc. v. Engelen, 2022 WL 600762 (Ga.Ct. App. March 1, 2022). Take-home: the enforcement of arbitration provisions in healthcare contracts is factually nuanced. When different panels of the appellate courts reach different conclusions on the procedure, the only take home is that each case is going to be decided on a fact-specific basis. Click here to access similar articles or subscribe to CSVL's Health Law and Regulation Update Blog.

Recent Health Law and Regulation Update Blog Post by Eric Frisch. House Bill 961 has been introduced this session of the Georgia General Assembly to amend Georgia’s apportionment statute, O.C.G.A. §51-12-33. The proposed amendment is a response to last year’s seminal decision in the case of Alston & Bird, LLP v. Hatcher Management Holdings, LLC, in which the Supreme Court held that a defendant could not ask for a jury to apportion damages in cases involving only one defendant. The proposed bill would amend subsection (b) to allow for apportionment of damages in cases involving “one or more persons,” which changes the language that reads “more than one person.” We will keep an eye on this as it moves through the legislature, so check back here for more updates. Click here to access similar articles or subscribe to our Health Law and Regulation Update Blog.

Health Law and Regulation Update Blog Post by Eric Frisch. 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).   For similar articles or to subscribe to our Health Law and Regulation Update Blog click here.

Health Law and Regulation Update Blog Post by Eric Frisch. 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. Click here for similar articles or to subscribe to our Health Law and Regulation Update Blog.

CSVL Health Care Practice Group Leader Eric Frisch joined the ICLE's Medical Malpractice Boot Camp CLE program as a presenter on Friday, September 17, 2021.  Medical Malpractice Boot Camp is a six (6) hour CLE hosted by the State Bar of Georgia's Institute of Continuing Legal Education that covered topics ranging from evaluating and mediating potential medical malpractice cases to managing discovery disputes and trial strategies and tactics. Eric's session Apportionment was the final session and started at 2:50 p.m. Please click here to learn more about the ICLE's Medical Malpractice Boot Camp.

Recent Health Law and Regulation Update Blog Post by Eric Frisch. 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). For similar articles or to subscribe to CSVL Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. 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). Please click here for similar articles or to subscribe to our Health Law and Regulation Update Blog.

Health Law and Regulation Update Post by Eric Frisch. 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). To subscribe to our Health Law and Regulation Update Blog, please click here.  

Health Law and Regulation Update Blog Post by Eric Frisch. 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). To subscribe to CSVL's Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. 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).

Health Law and Regulation Update Blog Post by Eric Frisch. 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). To subscribe to CSVL's Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. 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). For similar articles or to subscribe to our Health Law and Regulation Update Blog, please click here.

Recently CSVL Health Care Practice Group Leader Eric Frisch had the opportunity to interview R&D Strategic Solutions’ James McGarity. James and Eric discussed potential effects of the COVID-19 pandemic on jury pools and seated juries for the CSVL Health Law and Regulation Update Blog. James, a nationally renowned Jury Consultant, is a partner in R&D Strategic Solutions. James has been studying jury behavior and trial strategy since 1999, and is a recognized expert in medical malpractice cases. In addition to consulting on more than two thousand medical malpractice cases, James has consulted on many other civil and criminal matters, including product liability, premises liability, copyright/patent litigation, white-collar crime, and many other types of litigation in venues across the country. Mr. McGarity has assisted clients with jury research, case strategy preparation, jury selection, voir dire question development, witness preparation, and post-verdict analyses. He is an expert in research methodology and survey design, and has been a speaker at numerous CLE events and legal conferences, including the Alabama Bar Institute for Continuing Legal Education, the Arkansas Association of Defense Counsel, the Georgia Bar Association, the Virginia Association of Defense Attorneys (VADA), the Memphis Bar Association, Emory University School of Law, and the University of Montana School of Law Advanced Trial Advocacy Program. James has also appeared frequently on Court TV, as a guest expert in jury behavior on shows hosted by Yodit Tewolde, Julie Grant, Seema Iyer, and Vince Politan, covering high profile trials across the country. R&D Strategic Solutions. ERIC:    James, professionally, how is your pandemic going? Have you been working on jury research projects? JAMES:    Our work slowed down a bit during the first few months of the pandemic, but has picked up substantially in the last few months. We have been doing jury research projects over the last year, but quite a bit more since the beginning of the year. ERIC:    From the exercises, what is the general mood of the jury pool out there? JAMES:    Uncertainty is the general mood. Jurors are keeping a closer eye on safety and safety related issues, having lived through such a significant event just this far, and we don’t know when it will be over for sure. There is also uncertainty about when the pandemic is going to end, how we will come out of it financially and in terms of our health, and how our economy will rebound from the lockdown periods. There is even more focused uncertainty among the population . . . . . .click here to read more.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals has affirmed an award of over $177,000 in attorney’s fees to the defendants in a medical malpractice case under O.C.G.A. §9-11-68. In Anglin v. Smith, plaintiff alleged that she suffered loss of leg function and urinary incontinence after a second injection into her lower back. In a previous version of the case, the Court of Appeals wrote “the crux of the case became . . . that [plaintiff] was paralyzed and incontinent when she las saw [Dr. Smith] and for several days thereafter.” However, the medical records and treating providers confirmed that plaintiff was able to walk and was not paralyzed. The only evidence that plaintiff was paralyzed came from plaintiff herself and plaintiff’s experts relied exclusively on this to support their standard of care criticisms. During discovery, defendants made a $1000 offer of judgment, which was rejected. After a defense verdict (affirmed on appeal), defendants moved for attorneys’ fees under O.C.G.A. §9-11-68. Importantly, defendants did not move for damages based on frivolity under Section 9-11-68(e). Rather, the motion was based on the statutory offer only. The trial court ruled that the offer was a good faith offer and awarded the fees. The Court of Appeals affirmed, holding that the trial court did not abuse its discretion in awarding the fees. Because the fees were awarded pursuant to a statutory offer of judgment, the trial court only needed to rule that the offer was made in good faith. Here, the trial court was authorized to determine, based on the whole of the record, that defendants felt strongly they would win the case and that was sufficient to support a finding of good faith. Plaintiff argued the trial court was required to set forth certain “objective factors” justifying the award. However, the Court of Appeals opined that the “objective factors” apply only to orders denying fees, not awarding them. Take-Home: There is no brightline test for a “good faith” offer by defendants under Section 9-11-68, but this case, along with others like it, show that a trial court is empowered with broad discretion to award fees even when the evidence is contested. The case is Anglin v. Smith, ___ S.E.2d ___, 2020 WL 7692151 (Ga.Ct.App. December 28, 2020). To subscribe to our Health Law and Regulation Update Blog, please click here.

Recent Health Law and Regulation Update Blog Post by Eric Frisch. In a significant case, the Georgia Supreme Court has overruled the long-standing rule that an employer cannot be held independently liable for negligent entrustment, training, hiring, or supervision if it admits the employee was acting in the course and scope of employment. The underlying case involved a truck accident. The defendant employer admitted that the truck driver was its employee and acting with in the course and scope of employment. The employer moved for partial summary judgment on claims for punitive damages and negligent entrustment, hiring, training, and supervision. The trial court granted the motion based on the long-standing rule known as the Respondeat Superior Rule. Plaintiffs opposed the motion, claiming that Georgia’s apportionment statute abrogated the Respondeat Superior Rule in favor of apportioning to the employer and employee. The Georgia Court of appeals affirmed the judgment. A majority of the Georgia Supreme Court reversed and held that the Respondeat Superior Rule is inconsistent with apportionment of damages. The Court reasoned that a claim for negligent entrustment is an independent act by the employer that, under the plain language of the statute, should be for the jury to consider when deciding percentages of fault between the plaintiff and the defendants. In particular, negligent entrustment involves the breach of a legal duty of the employer, namely, not to lend a vehicle to another to drive when there is actual knowledge that the driver is reckless or incompetent. In a dissent, Justice Carla Wong McMillan wrote that the apportionment statute does not abrogate the Respondeat Superior Rule because apportionment applies at trial, while the Respondeat Superior Rule applies at the summary judgment phase. Justice McMillan also wrote that the Court has previously held there is no apportionment of damages when the fault is indivisible, as it is in vicarious liability situations, noting specifically the Loudermilk decision. Take-home: This case breaks wide open claims for negligent hiring, training, and supervision in a wide variety of contexts. It also demonstrates the need for the General Assembly to revisit the apportionment statute to fulfil the stated purpose. That’s 2020 for you. The case is Quinn v. Hulsey, ___ S.E.2d ____ (Ga.Sup.Ct. November 2, 2020). For similar articles, visit to our Health Law and Regulation Update Blog by clicking here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals reversed the denial of summary judgment to an obstetrician for care related to a delivery complicated by shoulder dystocia. Plaintiff presented to Wellstar Kennestone Hospital for labor and delivery. Although the opinion is light on details, the inference is that the labor was uncomplicated until delivery of the shoulders. After shoulder dystocia was encountered, the obstetrician resolved it within 40 seconds using generally accepted maneuvers. The baby suffered injuries and the parents sued for medical malpractice. Defendants moved for summary judgment, arguing that the gross negligence standard under O.C.G.A. §51-1-29.5 should apply. That statute reads, in part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

Recent Health Law and Regulation Update Blog post by Eric Frisch. The Georgia Supreme Court has affirmed that the plaintiffs in a medical malpractice case could hold a practice group vicariously liable for the alleged malpractice of one of its employed physicians who was not named in the lawsuit. In the case of Atlanta Women’s Specialists, LLC v. Trabue, Shannon Trabue suffered a brain injury as a result of a cardiac arrest in the days after giving birth. Ms. Trabue was treated by two physicians – Dr. Angus and Dr. Simonsen – both of whom were employees of Atlanta Women’s Specialists (“AWS”). Plaintiffs sued Dr. Angus and AWS, but included allegations in the Complaint that AWS was vicariously liable for both Dr. Angus and Dr. Simonsen. Dr. Simonsen was not a separately named party in the complaint. At trial, defendants’ counsel asked the trial court to instruct the jury on apportionment of damages between Dr. Angus and Dr. Simonsen, as an unnamed party. Defendants did not file a notice of non-party at fault within the statutory time period. The trial court denied the motion. The jury returned a verdict for plaintiffs and found that both Dr. Angus and Dr. Simonsen were at fault. Defendants appealed and the Court of Appeals affirmed. The Supreme Court affirmed the Court of Appeals’ decision. First, the Supreme Court held that plaintiffs adequately pled AWS’ vicarious liability for Dr. Simonsen. In so doing, the Court affirmed the general rule that a “plaintiff need not specifically name in the complaint each physician-employee whose acts or omissions form a basis for the claim of vicarious liability against” the employer. The Court rejected the argument that the affirmative statement in the complaint that Dr. Angus was directly liable excluded any allegation that Dr. Simonsen was also liable under notice pleading. The Court also affirmed the trial court’s ruling that AWS could not seek apportionment by the jury for Dr. Simonsen’s negligence. Notably, the Court seemed to side-step the critical question – whether it would have been appropriate at all to have the jury apportion between Dr. Angus and his co-employee – by holding that defendants’ failure to give statutory notice was fatal. To this end, the Court held that “a defendant employee like Dr. Angus who wants to reduce a potential damages award against him by having the jury apportion damages between him and his defendant employer based on the fault of a nonparty co-employee must comply with the requirements of subsection (d).” Justice Bethel dissented (a rarity in Georgia jurisprudence as of late) and Justice Warren concurred fully in parts 1 and 2 and in the judgment only in part 3. In his dissent, Justice Bethel wrote that AWS should have been permitted to apportionment with Dr. Angus based on subsection (2) of O.C.G.A. §51-12-33. That subsection reads “in its determination of the total amount of damages to be awarded, if any, shall ... apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” The majority held that subsection (b) is not a standalone provision, but must be read in conjunction with the notice provision of subsection (d). Justice Bethel disagreed, writing that the hole in the majority’s reasoning is that it essentially imposes joint and several liability on AWS and Dr. Angus. Take-home: This is an important case for all parties. On the defense side, the outcome can be avoided by filing a notice of non-party at fault if any other, unnamed employee might also have contributed to the outcome. On the plaintiff side, more employees will be named to avoid the potential hole of a non-party at fault. We are not addressing the potential conflicts of interest, which are very fact specific. The case is Atlanta Women’s Specialists, LLC v. Trabue, ___ S.E.2d ___ 2020 WL 5752376 (Ga.Sup.Ct. Sept. 28, 2020). For more information on CSVL's Health Law and Regulation Update Blog or to subscribe, please click here.

Health Law and Regulation Blog Post by Eric Frisch. The Georgia Supreme Court has affirmed summary judgment for a psychiatrist on a wrongful death claim filed by the widow of a man killed in a car accident by the psychiatrist’s patient. The patient was under the care of the psychiatrist for alcoholism and had been prescribed Lorazepam. The patient returned to Atlanta from a trip and scheduled an emergency visit with the psychiatrist. The patient instead went to a bar before going to the appointment. After the appointment, he returned to the bar and drank more. Later that evening, after drinking more, the patient struck Plaintiff’s husband and killed him. Plaintiff sued the psychiatrist in “ordinary negligence” and professional malpractice. The trial court granted the psychiatrist summary judgment and Plaintiff appealed. The Court of Appeals affirmed, holding that there was no claim for “ordinary” negligence, either under the “Bradley Center” rule or because of violation of various statutes regarding involuntary commitment. In a word, the Court reaffirmed the rule that a third party cannot sue a professional for the acts of the professional’s patient because the duty to control the patient does not arise unless the professional exercises “legal authority” to “place restraints on the liberty” of the patient. Here, the patient was a voluntary outpatient, so the control element was missing. The Court also affirmed summary judgment on the professional malpractice claim because of lack of privity between Plaintiff and the provider. Take-home: this case seems to strengthen the general rule regarding professional liability to third-parties after a slight weakening of the rule in cases like Peterson v. Reeves. The case is Stanley v. Garrett, ___ S.E.2d ___, 2020 WL 5554398 (Ga.Ct.App. Sept. 17, 2020). For more information on or to subscribe to CSVL Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Supreme Court has held there was enough evidence to support a charge of assumption of the risk in a medical malpractice case. Plaintiff claimed he fainted and fell out of a deer stand while hunting five days after heart surgery. Plaintiff and his wife sued his cardiologist, claiming he was given too much medication, which caused him to faint. A trial, the jury was charged on assumption of risk and the jury returned a defense verdict. The Court of Appeals reversed. The Supreme Court granted certiorari and held that there was enough evidence to charge the jury. The evidence showed that Plaintiff knew he had surgery for cardiac issues and that he had been instructed not to engage in strenuous activity, including not lifting more than ten pounds, for at least seven days. Plaintiff disputed that he was told this and claimed he was not told about the specific risk of fainting. The Court of Appeals held that it was error to give the charge because “climbing into a deer stand was not a risk associated” with the physician’s duty, but fainting was a “side effect of the medication.” The Court of Appeals further wrote that the physician’s instructions not to engage in strenuous activity did not establish that Plaintiff knew he risked fainting if he did not follow them. The Supreme Court affirmed the general rule that only slight evidence is necessary to justify a jury charge. And the Court held that it did not need to decide whether the evidence established assumption of the risk, only whether there was sufficient evidence to give the charge. Plaintiffs argued that because he did not know the specific risk of fainting, the charge should not have been given. The Court rejected this argument, reasoning that the Plaintiff does not need to know of the specific risk, only “a risk of physical injury” to get the charge of assumption of the risk because knowledge of any such risk amounts to a failure to exercise ordinary care and diligence for their own safety. Take-Home: this was a battle over general v. specific risk. The Court’s ruling that a plaintiff need only be aware of a risk associated with their own conduct after medical treatment has wide-reaching implications for trial, especially in cases involving informed consent and discharge instructions. Daly v. Berryhill, _ Ga. ___, 843, S.E.2d 870 (2020). Click here to visit our Health Law and Regulation Update Blog.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals has held that an expert affidavit is not required to support some claims of negligent credentialing. Plaintiffs sued a physician, his employer, and the hospital where he had privileges, claiming injuries from an allegedly negligent cardiac catheterization. Plaintiff asserted the physician had not performed a sufficient number of interventional procedures to be granted staff privileges by the hospital. Plaintiffs filed an expert affidavit with the complaint, but the affidavit did not address the negligent credentialing claim. The hospital moved to dismiss arguing, among other things, that an expert affidavit was required for the negligent credentialing claim under O.C.G.A. §9-11-9.1. The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals held that credentialing can include professional review in the form of peer review or medical review of the quality of surgeries. However, Plaintiffs alleged in this case that the question was the number of surgeries, not the quality of care. Because a non-professional could count the number of surgeries, this did not involve medical or professional judgment. Accordingly, an affidavit was not required. Take-Home: It is a bit surprising the Court addressed the legal question, since, in general, the rule is that an expert affidavit need only address one negligent act or omission to be sufficient. This case could narrow the seemingly broad protection of peer review and medical review activities in the credentialing context if actual review of the quality of care is not involved. The case is Houston Hospitals, Inc. v. Reeves, ___ S.E.2d ____, 2020 WL 351822 (June 29, 2020). To read similar articles or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals affirmed a final judgment in favor of a neurosurgeon against a litany of alleged evidentiary errors at trial. In the case of Haskins v. Georgia Neurosurgical Institute, the plaintiff underwent lumbar surgery for a herniated disc. After surgery but in the operating room, the patient was able to move his feet. He was taken to recovery area, where, 30 minutes later, he could no longer move his feet. The surgeon ordered an MRI to look for a hematoma or spinal cord as a cause of cauda equina syndrome. The patient went back to the operating room, where a laminectomy was done. Following the second surgery, the patient continued to experience deficits. At trial, the patient alleged the surgeon violated the standard of care by over-retracting during the first procedure and performing the wrong procedure to start. Defendants denied the allegations and put up expert witness testimony that a possible cause of the deficits was a spinal cord stroke. Plaintiff filed a motion for new trial, which was denied and affirmed on appeal. Plaintiff first contended that the trial court erred in permitting the defense to cross-examine his expert witness with an article written by the witness’ partners. The Court held that this was harmless error because the article did not mention stroke as a cause of CES but was a general article that benefited both sides. Next, Plaintiff complained that the trial court erred by allowing Plaintiff to be cross-examined on the consent form he signed before surgery. Plaintiff opened the door to the exam but testifying that he did not been provided with consent paperwork. The trial court also gave a jury charge stating that consent was not a defense. Accordingly, there was no harmful error. Plaintiff then alleged the trial court erred in excluding a rebuttal witness who had not been identified in discovery and permitting the defense to read a deposition for which there was no signature by the witness. The Court held that both of these were harmless, if they were error at all. Importantly, Plaintiff contended that the defense theory about a spinal cord stroke as the cause of the CES was speculative. The Court held that Plaintiff was confusing its burden of proving causation during the case-in-chief with the defense burden to establish the reliability of expert testimony. Notably, the Court affirmed earlier cases that the defense does “not bear the burden of proving causation” and that the defense may offer expert testimony “suggesting alternative causes” to rebut more specific testimony. Take-Home:  This case reaffirms the long-standing rule that trial court errors must result in prejudice to be overturned on appeal. And it reaffirms the specific rule that the defense does not bear the burden of proving alternative causation with the same standard applicable to Plaintiff. The case is Haskins v. Georgia Neurosurgical Institute, Inc., 2020 WL 3445715 (June 24, 2020). To read similar articles or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia General Assembly has passed two new healthcare related measures. The first bill, entitled the “Disabled Adults and Elder Persons Protection Act,” enjoyed bipartisan support and is expected to be signed into law shortly. The second act extends Medicaid coverage for postpartum care for new mothers to four months, up from two months. Among the provisions of the Disabled Adults and Elder Persons Protection Act are:

• Job protection for whistleblowers
• Increased fines for violation of regulations for facilities
• A minimum fine of $5,000 for a regulatory violation that results in serious injury or death
• Extension of regulation to personal care homes and assisted living facilities
• Requiring direct patient care by qualified personnel at personal care homes with more than 25 beds with minimum staffing ratios
  • The staffing requirement includes a comprehensive clinical skills review and a medication aide
• Requiring comprehensive clinical skills evaluation for staff at other facilities
• Regulations for memory care and Alzheimer’s and dementia care units
• Pandemic planning, including maintaining a minimum amount of personal protective equipment
• Authorization to develop licensure and oversight standards for personal care home administrators

Health Law and Regulation Update Blog Post by Eric Frisch. Yesterday the Georgia Senate passed and adopted HB 888, which limits the consequences of “surprise” medical billing for patients receiving emergency medical services. The bill limits the remedies for out of network service providers to collect from patients on past due bills to the deductible or co-pay. Once the patient pays the deductible or co-pay, the service providers can only collect any out of network balance from health insurers. The bill also requires insurers to pay for out of network emergency services without prior authorization and to cover certain non-emergency services as well. The patient remains financially responsible for out of network services they choose to receive. This bill requires a deeper dive and more analysis will follow, but it seems to be ambiguous enough that significant litigation is likely to follow. Stay tuned for more analysis. The text of the bill can be found by clicking here. To subscribe to CSVL's Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. On April 14, 2020, Georgia Governor Brian Kemp issued an executive order designating employees, staff, and contractors of healthcare institutions and medical facilities as “auxiliary emergency management workers” and granting them immunity for their services under O.C.G.A. §38-3-35. Under that Code Section, no one “shall be liable for personal injury” while engaged in emergency management activities “except in cases of willful misconduct, gross negligence, or bad faith.” The immunity does not appear to apply automatically to every healthcare provider in Georgia. Rather, it is limited to “where services are provided or performed during the Public Health State of Emergency” but the definitions do include freestanding imaging centers, rehabilitation care centers, and freestanding surgery centers. This is a big step. In the event there are claims made during or after the COVID-19/novel coronavirus pandemic, the application and scope of this immunity is going to be a heavily litigated issue. We here at CSKL remain prepared to defend the healthcare providers in Georgia! The April 14, 2020 Executive Order can be viewed by clicking here. Please click here to subscribe to CSVL's Health Law and Regulation Update Blog.

Health Law and Regulation Update Blog Post by Eric Frisch. The University of Pennsylvania has released an online tool to help hospitals model projected census for the COVID-19/novel coronavirus pandemic. The tool can be found by clicking here. The variables are adjusted for region, number of presentations, number of ICU beds, and number of ventilators. Healthcare providers on the frontline have been in the news a lot lately. The news and social media sources speak about the heroics of nurses, emergency providers, and first responders. The job they are doing cannot be put in words. But, let’s not forget their colleagues – hospitalists, intensivists, critical care specialists, infectious disease, pulmonology, lab personnel, and support staff – who are integral in the fight. And keep in your thoughts the surgeons, obstetricians, cardiologists, and other specialists who have to manage the rest of the patients at the same time; people are still going to the hospital with appendicitis, babies to be delivered, and heart attacks. The Healthcare practice group of CSKL supports all who make our healthcare system the best in the world. For similar articles or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch.

Last night, the Office of Civil Rights Division of the United States Department of Health and Human Services (“OCR”) issued further guidance regarding enforcement of the Privacy Rule and related regulations due to the COVID-19/novel coronavirus pandemic as it relates to business associates of covered entities. Under the Privacy Rule and related regulations, business associates of covered entities may disclose private health information for public health and oversight activities only with prior authorization from patients. In light of the pandemic, OCR has declared that it will exercise its discretion and not enforce this requirement until the Secretary of the Department of Health and Human Services decides that the public emergency has passed. Attorneys like the members of the Healthcare practice group of CSVL who provide legal services directly to healthcare providers and facilities fall within the class of business associates to whom this wavier of action applies. The waiver is limited to the use for public health and oversight activities only and not to broader litigation, to which the existing rules, regulations, and laws still apply.

The guidance can be found by clicking here.

Stay tuned for more information about HIPAA and other healthcare related legal news in the ever evolving world of the COVID-19 pandemic. To subscribe to CSVL's Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog post by Eric Frisch. This is the continuing saga of Evans v. Rockdale Hospital. Mrs. Evans presented to the emergency department with what was diagnosed as a brain aneurysm. She and her husband sued the hospital and its nurses for failure to diagnose and treat in a timely manner. At trial, Plaintiffs introduced evidence of $1.1 million in past medical bills, a life care plan with significant future damages, and other evidence. The defense challenged the credibility of the damages experts and argued that Mrs. Evans was contributorily negligent for failing to seek treatment earlier. The jury returned a verdict for the past medical bills and a small amount for loss of consortium, but zero dollars for future damages. Plaintiffs moved for a new trial on inconsistency of the verdict and for additur conditioned on the grant of a new trial for inadequacy of the verdict. The trial court denied the motions and the first round of appeals followed. The Georgia Supreme Court remanded the case to the Georgia Court of Appeals for using the wrong standard to determine inadequacy of the verdict. In this current decision from the Court of Appeals, the Court affirmed the trial court’s denial of the motion for new trial based on inadequacy of the verdict. The Court held that the record showed the trial court exercised its discretion, did not make a material error in fact or law, and that the award was not so inadequate as to show obvious jury bias or the like. The Court also vacated its prior decision regarding inconsistency of the verdict, which is governed by a different legal standard than inadequacy. Because there was no indication the trial court used the different legal standard, the Court remanded the case back to the trial court for further proceedings. Take-home: many claimants are now using separate appellate counsel early in their cases. It is one thing to advocate trial level legal issues in the heat of battle, but understanding the standards of review for different rulings on appeal, such as evidentiary issues, requires a thorough understanding of the appellate process. The good news is that we at CSKL have decades of appellate experience on these issues! The case is Evans v. Rockdale Hospital, ___ S.E.2d ____, 2020 WL 1527979 (Ga.Ct.App. March 30, 2019). To subscribe to our Health Law and Regulation Update Blog, please click here.

Recent Health Law and Regulation Update Blog post by Eric Frisch. The Office of Civil Rights (“OCR”) division of the Department of Human Services is responsible for enforcing HIPAA, the Privacy Rule, and related regulations. On Saturday, OCR issued guidance relaxing enforcement of the Privacy Rule dictates concerning telehealth, notification to family members and others, and disclosures to the media. The OCR cautions covered entities (i.e., health care providers and facilities) to obtain verbal consent to disclosures and to disclose only the “minimum necessary” information, but does permit covered entities to disclose a patient’s private health information to family members, friends, and others as needed. The guidance can be found by clicking here. The take-home message is that the public health crisis associated with the COVID-19 pandemic has forced everyone, including OCR, to change the way they do business. Covered entities and their business associates, like lawyers defending health care providers, should continue to follow the Privacy Rule dictates in daily practice with a narrow carve-out for COVID-19 related disclosures. Even then, health care providers are advised to document verbal consent and the subsequent disclosures because, at some point, this crisis will pass. We at CSVL remain committed to the support of all healthcare providers and we thank and applaud you for all you do and all you are doing now! To subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals has reversed a directed verdict in favor of the defense in a dental malpractice, holding that the plaintiffs introduced enough evidence to show an injury and damages to get to a jury. Plaintiff Lucien Ouazin presented to his dentist with complaints of lower jaw pain. The dentist performed an x-ray. According to the evidence, Mr. Ouazin noticed a dark discoloration on the x-ray and asked the dentist about it. The dentist said it was fine but that he had a cavity in one tooth and another needed to be extracted. The dentist referred the patient for the extraction, which was ultimately done. Three years later, Mr. Ouazin fell ill while shopping. He went to the hospital and was diagnosed with an endodontic tumor. The tumor and part of the jaw bone were extracted and part of the leg bone was used in the jaw. As a result, Mr. Ouazin was left with a limp and pain. Mr. Ouazin and his wife sued the dentist. At trial, the dentist moved for a directed verdict, claiming the Plaintiffs had not proven an injury and damages. The Plaintiffs claimed the tumor would have been much smaller if diagnosed earlier and the surgery would have been easier without the same impairments. The trial court granted the motion. The Court of Appeals reversed, holding that while surgery would have been needed no matter what, the jury could have found that the surgery performed in 2011 was “more drastic” than what would have been performed in 2011. In addition, the dentist moved at trial to exclude Plaintiffs’ expert’s testimony on the grounds that he had not performed the treatment within the 5 years leading up to the incident. The trial court excluded the testimony but the Court of Appeals reversed. The Court held that the expert is not required to have performed the same treatment within 5 years of the incident. Rather, the expert must show that they have actual knowledge or teaching knowledge of the subject matter in order to testify. Take-home: For purposes of proving an injury, the general rule is that any change in the condition, pain, or treatment will be sufficient to get to a jury. The case is Ouanzin v. Coast Dental Services, Inc., 2020 WL 1129766 (March 9, 2020). For more information or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. 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. To subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law & Regulation Update Blog Post by Eric Frisch. 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). For more information on, or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog post by Eric Frisch. 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). For more information on or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Law and Regulation Update Blog post by Eric Frisch. 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). For more information on or to subscribe to our Health Law and Regulation Update Blog, please click here.

Health Care and Regulation Update Blog post by Eric Frisch. 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). For more information on or to subscribe to our Health Law and Regulation Update Blog, please click here.

Recent Health Law and Regulation Update Blog Post be Eric Frisch The Georgia Court of Appeals affirmed the exclusion of a treating physician who was not identified as an expert witness on standard of care during discovery and only on the eve of trial. Plaintiff claimed she was injured by the defendant physician following three foot surgeries. The defendant recommended additional treatment, including removal of bone spurs. The defendant physician then recommended the plaintiff seek a second opinion from Dr. Light. Plaintiff sued the defendant and attached the affidavit of a specially-retained expert witness, who offered three opinions regarding deviation from the standard of care. The parties also had a scheduling order, which was modified three times, but included specific deadlines for the identification of experts, including “rebuttal” experts. During discovery, defendant asked plaintiff to identify “any witness whom you expect to call as an expert witness at trial, including any . . . treating physicians from whom you may elicit standard of care or causation testimony at trial.” Initially, Plaintiff responded that she had not decided who she was going to call. During the extended discovery period, Plaintiff identified the affiant/specially-retained expert, who only testified to the three deviations set forth in the affidavit. After the close of the discovery period per the scheduling order, the trial was set for over a year later. Less than a month before trial, plaintiff served supplemental discovery responses, identifying the treating physician, Dr. Light, as a witness and stating that he would offer three new opinions regarding deviations from the standard of care. Defendant deposed Dr. Light and established what he reviewed to form his opinions, which included records and imaging studies that he had not reviewed while he was caring for plaintiff. Defendant moved to exclude Dr. Light’s standard of care testimony because he had not been identified as an opinion witness during the discovery period. The trial court granted the motion and the Court of Appeals affirmed. On appeal, plaintiff conceded she failed to identify Dr. Light as an expert witness, but argued that she was not required to do so under what she called the “treating physician exception.” The Court rejected the idea of such an exception, holding that once Dr. Light reviewed materials that he did not have while he was treating the patient and offered standard of care opinions, he was an expert witness for purposes of disclosure during discovery. The Court distinguished cases in which a treating provider is called to offer opinions derived solely from firsthand observation and those opinions are not standard of care opinions, writing “a party may present expert testimony from a fact witness (i.e., a witness who does not have to be identified pursuant to Rule 26), who is testifying as to facts he or she observed or learned” while treating the patient, but that “such a witness may not, however, provide expert opinion testimony on the standard of care and whether that standard was breached, unless the witness has been identified as an expert” under Rule 26. Take-Home: This is the clearest declaration by the Georgia appellate courts regarding the distinction between an “expert witness” and what is labeled a “percipient witness” in Federal court. In the course of discovery, if a treating physician is going to review data that they did not have at the time they were taking care of the patient and they are offering standard of care testimony, that witness must be disclosed. In our practice, we ask two separate interrogatories, one regarding witnesses who have been specially-retained for purposes of litigation and a separate interrogatory regarding any witness who will offer opinion testimony at trial regarding standard of care, causation, or damages. The case also supports the notion that Georgia courts are strongly enforcing scheduling orders and doing so against all parties. All parties should be mindful that, within the confines of a scheduling order, the deadlines are meaningful and discovery and disclosure should be focused on full compliance. The case is Glover v. Atkinson-Sneed, 2019 Ga. App. LEXIS 73 (Ga.Ct.App. Feb. 20, 2019). For more information on or to subscribe to our Health Law and Regulation Update Blog, please click here.    

Recent Health Law and Regulation Update Blog Post by Eric Frisch. 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). For more information on or to subscribe to our Health Law & Regulation Update Blog, please click here.