Eric Frisch and Claire Sumner obtained a defense verdict in DeKalb County State Court in a wrongful death case against a physician and his hospital employer. Plaintiff alleged that the physician failed to diagnose and treat post-operative pneumonia in a timely manner.  The defense argued that the patient developed acute respiratory distress syndrome and pulmonary edema, which were properly treated.

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

Tom Carlock and Eric Frisch obtained a defense verdict in Fulton County State Court in a wrongful death case against a neurosurgeon.  The case involved a fifty-three year old male who underwent a successful C5-C6/C6-C7 anterior cervical discectomy and fusion.  The surgery was completed without complication, but the patient developed minor post-operative swelling.  The surgeon was informed of the issue; he evaluated the patient and issued orders to admit the patient to the intensive care unit for close monitoring for signs of possible airway obstruction, including neck swelling, shortness of breath and difficulty breathing.  The ICU nurses were measuring the patient’s neck circumference and contacted the surgeon to advise that the circumference had increased by 1 cm, but the patient was otherwise stable with no signs of respiratory distress.  Thus, the instructions for continued close monitoring were continued.  All experts testified that neck circumference measurements do not equate to neck swelling and provide no useful information about a patient’s respiratory status.  Over the next several hours, the patient began experiencing actual observable neck swelling and difficulty swallowing, but the ICU nursing staff did not notify the neurosurgeon.  The patient went into respiratory arrest more than five hours after the last time the nurses contacted the neurosurgeon and resuscitation efforts were unsuccessful.  Plaintiff alleged that the neurosurgeon should have evaluated the patient, ordered diagnostic tests or re-intubated the patient when he was notified that the patient was stable, but had an increase in neck circumference.

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

Partners Tom Carlock and Eric Frisch obtained a defense verdict in Floyd County Superior Court in a wrongful death case against a vascular surgeon. The case involved a 64 year old male who suffered from a vascular occlusion of the lower leg. He underwent a peripheral vascular procedure, which the doctor had to stop because he could not clear the blockage. After removing the catheter, the doctor attempted to close the insertion site with a Star Closure device without success. The patient was on heparin, so the doctor gave Protamine to reverse the effects. The patient suffered a reaction to Protamine and arrested.  The patient was revived, but suffered an anoxic brain injury.  Plaintiff alleged that the patient was at an elevated risk for the reaction, that the doctor should not have given Protamine, and that there was a failure to intervene in a timely manner.

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

Eric Frisch and Harrison Spires successfully argued summary judgment for a law firm in a defamation action. Harrison Spires argued the motion in the Superior Court of Cherokee County. The law firm was accused of defaming a debtor during foreclosure proceedings.

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

Atlanta partner Eric Frisch successfully defended a radiologist in DeKalb State Court. The plaintiff had stage IIIA breast cancer and a mastectomy. Plaintiff alleged that the radiologist failed to detect a suspicious mass on mammograms. The jury returned a defense verdict after 1.5 hours of deliberations.

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

Eric Frisch obtained a defense verdict for two hospitalists in the State Court of Henry County. Plaintiffs alleged that a 63 year old patient died of undertreated low blood pressure, which led to decreased blood flow to the heart, eventual cardiopulmonary arrest, and death. The patient was admitted to the floor from the emergency department by one of the defendant hospitalists. The records reflected a phone call over night to the second defendant hospitalist, who did not remember receiving the call. The defense successfully showed that the patient presented with viral gastroenteritis that was diagnosed and treated appropriately, but the virus attacked her heart, leading to myocarditis, a rare and frequently fatal condition that is difficult to diagnose and treat.

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

Eric Frisch obtained a defense verdict in Fulton County Superior Court in a wrongful death case. Plaintiffs alleged that an emergency physician failed to resuscitate a critically ill patient adequately and failed to insert a chest tube in the face of evidence of bleeding into the chest.

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

Tom Carlock and Eric Frisch successfully defended a general surgeon in a wrongful death claim in Bartow County Superior Court (Cartersville, Georgia). The patient was at the hospital for a small bowel obstruction. The surgeon ordered the placement of a nasogastric tube in the operating room. Because it was an "open" procedure, a laparotomy, the surgeon reached up and felt the nasogastric tube in the stomach. About 18 hours later, the patient became sick and, on investigation, it was discovered the patient had suffered a rupture of the esophagus from the nasogastric tube. The patient was then transferred to another hospital, but she died 10 days later at age 85. Plaintiffs alleged that the surgeon failed to confirm placement of the nasogastric tube in the operating room and failed to diagnose and treat the perforation in a timely manner. The jury returned a defense verdict in just over 3 hours.

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

Trial victory for Tom Carlock and Eric Frisch, who successfully defended an anesthesiologist at trial. Plaintiffs alleged that the anesthesiologist and a physician assistant failed to adequately ventilate and oxygenate the patient after she developed respiratory distress, leading to purported brain damage. The Fulton County jury returned the defense verdict in about two hours.

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

Tom Carlock and Eric Frisch successfully defended an obstetrician at trial against allegations that one fraternal twin received an in utero brain injury related to weight discordance, pre-eclampsia, and low amniotic fluid levels. The Floyd County, Georgia jury returned a defense verdict in less than 5 hours, after hearing evidence that the twin pregnancy was managed appropriately and that the most likely cause of the injury was genetics.

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

The Georgia Court of Appeals affirmed a defense verdict in a brain damaged baby case handled by Tom Carlock and Eric Frisch. The case was tried to a defense verdict after more than five weeks of testimony. On appeal, the issues included whether the trial court properly limited the amount of time the injury child was present in the courtroom. In a case of first impression in Georgia, the Court held that the trial court has the discretion to limit a plaintiff's presence in the courtroom in cases involving severe neurological injuries.

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

Eric Frisch successfully defended an obstetrician at trial. Plaintiffs alleged the doctor failed to recognize and/or document shoulder dystocia, resulting in a permanent and severe obstetrical brachial plexus palsy involving all of the nerves from C5 to T1. The case was tried to a defense verdict in DeKalb County. On appeal, we successfully moved the Court of Appeals to dismiss the case on procedural grounds. The Georgia Supreme Court subsequently denied Plaintiffs' petition for certiorari.

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

Healthcare Practice Group partners Tom Carlock and Eric Frisch successfully defended a pulmonologist in Augusta in a case involving a woman who was profoundly brain damaged and is currently in a persistent vegetative state. Plaintiffs alleged that the pulmonologist failed to diagnose and treat a tension pneumothorax for three hours, leading to a cardiac arrest. The defense proved that the doctor complied with the standard of care and that if a tension pneumothorax occurred at all, it was right before or during the arrest and was promptly treated.

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

Partners Tom Carlock and Eric Frisch obtained a defense verdict in a medical malpractice case in Floyd County. Plaintiffs alleged that an internist and emergency medicine physician failed to diagnose and treat a hypertensive emergency and congestive heart failure. The defense proved that the Plaintiff suffered from a rare complication of a rare connective tissue disorder.

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

Tom Carlock and Eric Frisch, along with Athens attorney Drew Marshall, recently won a defense verdict for a hospital in Athens, Georgia in a five week liability trial involving allegations of obstetrical malpractice. Plaintiffs alleged that a community obstetrician and the nursing staff at the hospital failed to deliver the baby fast enough in light of what they contended were non-reassuring fetal heart rate patterns. The defense presented strong expert and fact witness testimony that the labor had proceeded normally and that there were no warning signs of decreased oxygen to the baby. The defense also presented strong expert testimony that the baby's alleged injuries may have occurred before labor started and at least some of the claimed injuries may have been genetic.

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

Eric Frisch recovered $952,028.17 in liquidated damages and past due fees for Holiday Hospitality Franchising, Inc. based on the early termination of a Holiday Inn® brand hotel in Maryland. The franchisee breached the license agreement and failed to pay franchise and other fees less than six months into a ten year term. The franchisee denied liability and counterclaimed for fraud and violations of the FTC Franchise Rule and Maryland law. Judge Thomas Thrash in the Northern District of Georgia awarded HHFI summary judgment, upholding the liquidated damages provision and awarding attorney's fees and expenses of litigation. Holiday Hospitality Franchising, Inc. v. 174 West Corp., 2006 WL 2466819 (N.D.Ga., Aug. 22, 2006).

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

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.

Carlock, Copeland & Stair, LLP is proud to announce that several of our lawyers have been selected for inclusion on the Super Lawyers® and Rising Stars® lists for 2017. 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 Fred M. Valz, III - Insurance Coverage Rising Stars® Shannon M. Sprinkle - Professional Liability: Defense

Eric Frisch was quoted in a Huffington Post article regarding obstetric violence. Click to see full article along with a link to his prior publication entitled, Obstetric Violence and Modern American Medical Jurisprudence originally published in Law Journal Newsletters. Reprinted with permission from Law Journal Newsletters – Medical Malpractice Law & Strategy. © 2015 ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.

February 19, 2016 Carlock, Copeland & Stair, LLP is proud to announce that 13 of our lawyers have been selected for inclusion on the Super Lawyers® and Rising Stars® lists for 2016. 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 Prcandidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check. 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 W. Dan McGrew, III - Professional Liability: 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® Brent A. Meyer - Construction Litigation Shannon M. Sprinkle - Professional Liability: Defense Peter Werdesheim - Professional Liability - Defense

Carlock, Copeland & Stair, LLP is proud to announce that 17 of our lawyers have been selected for inclusion on the Super Lawyers® and Rising Stars lists for 2015. 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 the 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. Super Lawyers

• Thomas S. Carlock
• Wade K. Copeland
• Eric J. Frisch
• Johannes S. Kingma
• D. Gary Lovell, Jr.
• W. Dan McGrew
• David F. Root
• Douglas W. Smith
• Kent T. Stair
• Fred M. Valz, III

• John L. Bunyan
• Brent A. Meyer
• Heather H. Miller
• Shannon M. Sprinkle
• Peter Werdesheim

Congratulations to Tom Carlock, Broderick Harrell and Eric Frisch on a recent defense verdict for a neurosurgeon which was covered by the Daily Report. A neurosurgeon sued for medical malpractice in the 2004 death of a patient was cleared of liability by a Fulton County jury, which turned aside claims that he failed to act or order diagnostic tests quickly enough when complications developed in the hours following a cervical spinal-fusion surgery. During pretrial motions, the defense managed to keep the jury from hearing evidence that Dr. Omar Jimenez's hospital privileges were suspended less than two years after the death of 53-year-old Mark Kravitz and that Jimenez had been subject to eight other malpractice suits in Georgia and Nebraska before and after the incident, according to attorneys on both sides of the case. Jimenez is represented by Carlock Copeland & Stair partners Tom Carlock, Broderick Harrell and Eric Frisch. Citing the possibility of an appeal, Frisch declined to go into much detail concerning the evidence and allegations against his client. But he said the involvement of WellStar Cobb Hospital—a co-defendant until it settled out of the case—was made known to the jury. "The plaintiffs acknowledged that the nurses at WellStar were responsible," said Frisch. But, he said, the plaintiff's side contended "that Dr. Jimenez should have done something, whether it was get a consultation, get an imaging study—something." Click here to read more of the article.

Carlock, Copeland & Stair, LLP is proud to announce that 17 of our lawyers have been selected for inclusion on the Super Lawyers® and Rising Stars lists for 2014. 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 the 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. Super Lawyers

• Thomas S. Carlock
• Wade K. Copeland
• Kent T. Stair
• Douglas W. Smith
• David F. Root
• W. Dan McGrew
• Johannes S. Kingma
• D. Gary Lovell, Jr.
• Eric J. Frisch

• Shannon M. Sprinkle
• Peter Werdesheim
• Heather H. Miller
• Ryan B. Wilhelm
• John L. Bunyan
• Cheryl H. Shaw
• Brent A. Meyer

“'Gross Negligence' at Issue Again Before Georgia High Court”, published in the September 11, 2013 edition of the Fulton County Daily Report, features a case being argued by Carlock Copeland Attorney Eric Frisch in the Supreme Court. He is representing the defendants in a case dealing with gross negligence standard in an emergency room setting.

We are proud to announce that 14 of our lawyers have been selected for inclusion on the Georgia Super Lawyers® and Rising Stars lists for 2013. Super Lawyers Thomas S. Carlock Wade K. Copeland Kent T. Stair Douglas W. Smith David F. Root W. Dan McGrew Johannes S. Kingma D. Gary Lovell, Jr. Eric J. Frisch 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 the 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. Rising Stars Shannon M. Sprinkle Peter Werdesheim Heather H. Miller Ryan B. Wilhelm John L. Bunyan 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.

We are proud to announce that 14 of our lawyers have been selected for inclusion on the Georgia Super Lawyers® and Rising Stars lists for 2012. Super Lawyers Thomas S. Carlock Wade K. Copeland Kent T. Stair Douglas W. Smith David F. Root W. Dan McGrew Fred M. Valz, III Johannes S. Kingma D. Gary Lovell, Jr. Eric J. Frisch 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 the Thomson Reuters. Each year, the research team at Super Lawyersundertakes 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. Rising Stars Shannon M. Sprinkle Peter Werdesheim Heather H. Miller John L. Bunyan 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.

We are proud to announce that 15 of our attorneys have been selected for inclusion on the Georgia Super Lawyers® and Rising Stars lists for 2011. Super Lawyers Honorees Thomas S. Carlock Wade K. Copeland Kent T. Stair Douglas W. Smith David F. Root W. Dan McGrew Fred M. Valz, III Johannes S. Kingma D. Gary Lovell, Jr. Eric J. Frisch 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 the Thomson Reuters, Legal division based in Eagan, MN. 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. Rising Stars Honorees Shannon M. Sprinkle Peter Werdesheim Heather H. Miller Spencer A. Bomar Ryan B. Wilhelm Rising Stars is a listing of exceptional lawyers who are 40 years 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.

Eric Frisch was featured in the "Leadership Spotlight" of the Defense Research Institute's (DRI) The Voice. The profile spotlights his legal practice, his education, and his community involvement. Eric is currently the webpage chair for DRI’s Trial Tactics Committee. He has also served as the Young Lawyer Liaison to the Trial Tactics Committee and is a regular contributor to DRI publications. Click here to read the full article.

We are proud to announce that 15 of our attorneys have been selected for inclusion on the Georgia Super Lawyers® and Rising Stars lists for 2010. Super Lawyers Honorees Thomas S. Carlock Wade K. Copeland Kent T. Stair Douglas W. Smith David F. Root W. Dan McGrew Fred M. Valz, III Johannes S. Kingma D. Gary Lovell, Jr. Eric J. Frisch 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 the Thomson Reuters, Legal division based in Eagan, MN. 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. Rising Stars Honorees Shannon M. Sprinkle John C. Rogers Pete Werdesheim Ryan B. Wilhelm Rising Stars is a listing of exceptional lawyers who are 40 years 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.

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 CSKL'a 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 CSKL 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 CSKL'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 CSKL'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 CSKL 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 CSKL'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 CSKL 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.

Recent Health Law and Regulation Update Blog Post by Eric Frisch. A Connecticut physician group recently agreed to pay $125,000 to settle a claim of “reckless disregard” for a patient’s privacy rights. The group contacted the local television station to give a statement about a dispute between its patient and one of its doctors. A reporter contacted the doctor, who “impermissibly disclosed the patient’s protected health information.” The Office of Civil Rights investigated and concluded that the doctor had shown “reckless disregard” after the doctor was instructed by the group’s privacy officer to respond with “no comment.” The group failed to discipline the doctor or take corrective action. Take-home: while a patient has an unfettered right to disclose their private health information in public and to the media, a covered entity does not. There is no “media exception” to the Privacy Rule. To read the report and corrective action plan, please click here. For more information on our Health Law and Regulation Update Blog, please click here.

Recent Health Law & Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals has held that metastatic cancer constitutes a “new injury” for purposes of calculating the statute of limitations. Plaintiff went to an obstetrician/gynecologist in August 2013 with complaints of abnormal bleeding from a large uterine fibroid mass. Plaintiff and the doctor discuss treatment options, including robotic hysterectomy. The doctor then referred the patient to a gynecological oncologist. The oncologist examined the patient and reviewed films. In November 2013, the oncologist reported to the obstetrician that there was a “very low suspicion” for malignancy. The obstetrician proceeded with the robotic procedure on December 13, 2013 based on the oncologist’s report. During the procedure, the fibroids were cut (“morcellated”) and not removed intact. Pathology reports showed the fibroids were cancerous. Post-operative CT and PET scans were negative until October 24, 2014, when the patient presented with pelvic tumors. The patient passed away on May 19, 2015. On December 9, 2015, the patient’s husband was appointed administrator of her estate. He then filed suit against the obstetrician, the practice group (Wellstar Physicians), and named several “John Doe” defendants. In April 2017, plaintiff filed an amended complaint to name the oncologist and substitute him in for one of the John Doe defendants. The oncologist moved to dismiss on the grounds of expiration of the two year statute of limitations. The trial court converted the motion to a partial motion for summary judgment and held that the “new injury” exception to the statute of limitations did not apply. The Court of Appeals reversed, holding the evidence showed the “new injury” exception did apply.  The general rule in misdiagnosis cases is that the misdiagnosis is the injury because the plaintiff suffers pain and incurs medical expenses from that point forward. In some cases, however, when the injury from the misdiagnosis is relatively benign or treatable but then develops into a more debilitating or “less treatable” condition, the injury is the “subsequent development of the other condition.” In this case, the Court held that the metastasis led to “a substantially reduced likelihood of her survival” and was a result of the morcellation, rather than removal of the fibroids intact. The Court also held that the statute of limitations was tolled until the administrator was appointed and that the amendment related back to the filing of the original complaint. The case is Hayes v. Hines, 2018 Ga. App. LEXIS 615 (Oct. 26, 2018). 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. In the second appellate version of Southwestern Emergency Physicians, P.C. v. Quinney, the Georgia Court of Appeals affirmed a $4.5 million verdict for the plaintiffs. Plaintiffs sued Southwestern Emergency Physicians, a doctor, and the hospital where the care encounter took place. Plaintiffs alleged that the negligence of the physician and two non-party nurses caused Mr. Quinney to become a paraplegic. On appeal, the main issues were whether the trial court erred in permitting Plaintiffs to argue both gross negligence and the “ordinary” professional malpractice standard of care in light of the previous appellate decision in the case, whether the trial court erred by instructing the jury that the gross negligence standard applied to non-parties for purposes of apportionment, and whether the trial court should have listed the hospital as a separate entity from its employee nurses for purposes of apportionment. The Court of Appeals affirmed the verdict, denying each of the grounds asserted. In the first appellate case, the defense moved for summary judgment on the issue of “ordinary” professional malpractice because the care provided arose solely out of emergency medical care to which the gross negligence standard applies under Section 51-1-29.5. On appeal, the Court held that the gross negligence standard applied because “emergency medical services” had been rendered, but ruled there were fact disputes about whether the doctor was grossly negligent. After remand and finishing discovery, the defense moved to exclude any testimony or argument about anything other than gross negligence. The trial court denied the motion in part because two defense experts had testified since the first appeal that Mr. Quinney was stable and that the jury should hear the evidence and then decide whether to apply the gross negligence standard or the “ordinary” standard of care. The defense then stated that it intended to discuss gross negligence in opening and Plaintiffs argued they should be allowed to discuss ordinary negligence if that was the case. The trial court agreed and gave “careful” preliminary and jury instructions that were “adjusted to the evidence, apt, and a correct statement of the law” regarding gross negligence. In addition, during the charge conference, Plaintiffs withdrew charges related to “ordinary negligence” leaving only gross negligence as the issue. Accordingly, the Court of Appeals affirmed the denial of the motion to preclude any mention to ordinary negligence. Next, the defense argued that the trial court should not have instructed the gross negligence standard as it applied to apportioning fault to non-parties, such as the individual nurses. After Plaintiffs withdrew the ordinary negligence jury charge in the charge conference, the defense argued for the charge to apply to the non-parties on the theory that apportionment only requires a finding of fault, not liability. The Court held that the duty the non-parties owed to Mr. Quinney was one of “slight care” (gross negligence) and that the defense was required to prove they did not provide such care if the jury was to apportion to them. Notably, the jury did apportion to two non-parties. Lastly, the defense argued the hospital should have also been listed as a separate party for apportionment. The Court held that because the defense did not offer any evidence that the hospital would be liable independent of its role as employer of the two non-party nurses who were listed on the verdict form, there was no error. Take-home: this case highlights the complicated nature of trying a case under the “gross negligence” standard and with apportionment. These cases are highly fact specific and it can be challenging to get the right jury charges for all of the scenarios that might be presented. The case is Southwestern Emergency Physicians, P.C. v. Quinney, 2018 Ga. App. LEXIS 538 For more information on our Health Law and Regulation Blog, please click here.

Recent Health Law and Regulation Update Blog Post by Eric Frisch In this convoluted case, the Georgia Court of Appeals reversed the denial of a motion for new trial filed by the plaintiffs after a defense verdict for the defendant cardiologist. Mr. Berryhill was prescribed medication to control his blood pressure at a local clinic. He then went to see the defendant cardiologist, Dr. Daly, who provided him with additional medication. Dr. Daly also performed a cardiac catheterization and placed a stent. Following surgery, Dr. Daly told Mr. Berryhill not to engage in any “strenuous or risky activity, or any lifting, bending, or stooping over.” Mrs. Berryhill was present. Five days later, Mr. Berryhill went hunting with a friend. He was in a deer stand about 18 feet off the ground when he fainted and fell, suffering serious injuries. The Berryhills sued the cardiologist, a pharmacy, and the manufacturer of the deer stand. Against the cardiologist, plaintiffs alleged Dr. Daly prescribed too much blood pressure medication, which caused him to faint. The pharmacy and manufacturer were dismissed before trial. Dr. Daly’s motions in limine included a motion to exclude the testimony of an expert pharmacist and to have the claims against the manufacturer admitted into evidence as admissions. The Court instructed the jury on assumption of the risk and avoidance of the consequences. Dr. Daly won and plaintiffs moved for a new trial including as grounds that the charge on assumption of the risk was not appropriate. The trial court denied the motion and the Court of Appeals reversed. The Court of Appeals held that a jury instruction for assumption of the risk is authorized only when the plaintiff assumes a known risk arising from a defendant’s conduct or failure to act. In so holding, the Court wrote “[t]he knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might associated . . . but rather is based in part on the reasoning that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct towards him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” The Court went on to write “[h]ere, climbing in to a deer stand was not a risk associated with Dr. Daly’s duty to Berryhill” and “it would be incorrect to identify this risk . . as justifying the instruction.” However, it was the risk of syncope (fainting) as a side effect that was the “particular risk in question.”  While the evidence showed Dr. Daly advised Mr. Berryhill not to engage in strenuous activity, the evidence did not establish that Mr. Berryhill knew he risked losing consciousness if he chose not to comply. Accordingly, the trial court should not have charged on assumption of the risk. The Court then concluded that the error may have been harmful because it could have led the jury into believing that any risk Mr. Berryhill assumed would support a finding of no liability. The take-home is not that Dr. Daly had a duty to inform Mr. Berryhill of the specific risks of fainting or syncope. Rather, the Court only ruled that the jury charge should not have been given. The Court did not discuss whether a more narrowly tailored charge would have been appropriate. The case is Berryhill v. Daly, 2018 Ga. App. LEXIS 526. For more information on our Health Law and Regulation Update Blog or to subscribe, please click here.

Recent Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to a defendant hospital. In Edokpolor v. Grady Memorial, the plaintiff claimed her husband died after aspirating Golytely. The doctor’s orders were to administer the medication through a nasogastric tube. The nurse, however, administered it orally. In support of the complaint, the plaintiff filed an expert affidavit. The expert testified that the nurses were obligated to follow the doctor’s orders and that the administration of the medication by mouth caused aspiration and caused his death. The hospital moved for summary judgment, pointing out there was no evidence the patient aspirated during administration of the Golytely orally, that the patient may have aspirated after ingesting the medication by vomiting, and that administering the medication through a nasogastric tube does not eliminate the possibility of aspiration. Plaintiff did not submit any opposing evidence. The trial court granted the motion and the Court of Appeals affirmed, holding that the affiant’s bare and conclusory allegations about causation did not create a genuine issue of material fact. The case is Edokpolor v. Grady Memorial, 2018 Ga.LEXIS 507. For more information on or to subscribe to our Health Law and Regulation Blog, please click here.

Health Law and Regulation Update Blog Post by Eric Frisch. The Georgia Court of Appeals has reversed the grant of summary judgment to the defendants on expiration of the statute of limitations in a misdiagnosis case. Plaintiff was a doctor who began suffering neurological symptoms in January 2013. She presented to one of her partners for workup and was referred to another physician. The two treating defendants did not order an echocardiogram to determine whether she was experiencing a cardiac condition that could be causing her to suffer neurological symptoms from transient ischemic attacks. Plaintiff suffered a stroke in September 2013. She sued her treating physicians, claiming they should have ordered an echocardiogram to determine the cause of her symptoms before she suffered the stroke. The defendants moved for summary judgment, arguing their alleged misdiagnosis occurred more than two years before Plaintiff filed suit, thereby triggering the statute of limitations. The trial court granted the motion. In reversing, the Court of Appeals concluded that Defendants had not carried their summary judgment burden of showing the undisputed facts demanded a finding as a matter of law. The Court held that Defendants failed to show that their misdiagnosis caused the symptoms Plaintiff was experiencing between January and September, as opposed to some other cause. In otherwords, while Defendants were admitting they misdiagnosed the condition during that time frame, they failed to prove that their misdiagnosis was the only cause of the symptoms, thereby precluding summary judgment. The case is Adams v. McDonald, 2018 Ga.App. LEXIS 401 (June 21, 2018). 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 affirmed exclusion of an affidavit of a key witness in a medical malpractice case. Plaintiff worked for a physician office. She suffered a back injury and was referred to the defendant anesthesiologist for pain management. During the second injection by the Defendant, Plaintiff contends she complained of pain shooting down her leg and additional problems. The issue at trial was when the Defendant learned about the new complaints. The anesthesiologist testified that she did not learn about the complaints for several days until it was too late to do anything. Plaintiff testified that she told Defendant about her complaints much earlier. During discovery, Defendant sent interrogatories regarding witnesses generally, witnesses who had expressed opinions about Defendant’s care, and requesting documents. Plaintiff’s interrogatory responses identified her employer generally, but not as someone who would opine about Defendant’s care specifically. Later, Plaintiff’s employer executed an affidavit in which he testified he had a phone call with Defendant very early on about the new complaints. Plaintiff did not disclose the affidavit to Defendant in discovery. At trial, Plaintiff’s employer did not recall his alleged conversation with Defendant. Plaintiff’s counsel then sought to use the affidavit to refresh his memory and to admit it into evidence. Defendant objected because the affidavit had not been disclosed, which Plaintiff admitted, but contended it was work product. The trial court excluded the use of the affidavit. Plaintiff appealed. The Court of Appeals reversed, but the Georgia Supreme Court vacated the case and remanded the case back to the Court of Appeals for further consideration in light of the 2017 decision of Resurgens, P.C. v. Elliott. The Court of Appeals held the trial court did not abuse its discretion, ruling that Plaintiff’s interrogatory responses required supplementation regarding the employer’s testimony. When Plaintiff did not supplement the discovery after obtaining the affidavit, the initial interrogatory response became misleading, thereby justifying the sanction. Take-home message: there is tension between Section 9-11-26(e)(2)(B), which does not require supplementation when the response was “complete when made” unless the respondent later learns the original response is no longer true, and Section 9-11-37, which requires supplementation of prior responses that are incomplete, ambiguous, or no longer complete accurate. The case is Anglin v. Smith, 2018 Ga.App. LEXIS 405 (June 21, 2018). 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’s lien is fertile ground for cross-examination. In the case of Stephens v. Castano-Castano, the plaintiff sued for injuries arising out of a motor vehicle accident. The evidence showed that her attorney referred her to a treating physician who, in turn, treated her under the terms of a lien based on her recovery. Attempts at presuit settlement ultimately resulted in no settlement (and part of the decision deals with offers and acceptance), so a lawsuit was filed. At trial, the defense sought to cross-examine the treating physician on the fact the attorney referred the plaintiff to him and his lien. Plaintiff moved to exclude the evidence, which was granted. The Court of Appeals reversed, holding that the trial court should have permitted the defense to cross-examine the doctor based on the financial interest. The Court wrote: “Dr. Chappius’ financial interest in the outcome of the case is highly relevant to the issue of his credibility and potential bias, as Dr. Chappuis has become an investor of sorts in the lawsuit. If Castano receives a large verdict amount, then Dr. Chappuis has a near certain chance of fully and quickly recovering the costs of the treatment provided to Castano at no initial cost. On the other hand, if Castano does not recover at trial, Dr. Chappuis' chances of being fully reimbursed are more doubtful. Thus, the expert witness has a financial motivation to testify favorably for Castano, and the probative value of this testimony outweighs its prejudicial effect.” The Court rejected the notion that the attorney’s referral was fair game, however. In so ruling, the Court wrote that “[a]t most, there is a suggestion of unseemliness which creates a danger of unfair prejudice and confusion of the issues before the jury.” The case is Stephens v. Castano-Castano, 2018 Ga. App. LEXIS 307. To subscribe to our Health Law and Regulation Update Blog, please click here.

Recent Health Law and Regulation Update Blog post by Eric Frisch. Under Georgia law, a medical malpractice complaint may be filed without an expert affidavit if the statute of limitations is to expire within 10 days and an attorney files an affidavit testifying they were not retained more than 90 days earlier. In a case of first impression, the Georgia Court of Appeals affirmed the denial of a motion to dismiss for failure to file an expert affidavit when an attorney sent a request for medical records 18 months before certifying they had not been retained to file suit. In Pico v. Brady, the alleged malpractice occurred on August 1, 2014. On December 16, 2014, Plaintiff signed an authorization permitting attorney Chris McClure to obtain medical records from the potential defendant doctor. On the same day, Plaintiff filled out a “New Client Questionnaire” for Mr. McClure in which Plaintiff acknowledged there would be no attorney-client relationship until a “Legal Services Contract” was executed. On July 29, 2016, Plaintiff signed the Legal Services Contract. On August 1, 2016, Mr. McClure filed the lawsuit for Plaintiff.  However, Mr. McClure did not file an expert affidavit; rather, he filed an attorney affidavit stating that he had not been retained until July 29, 2016. Defendants moved to dismiss and attached the medical records authorization and request as well as the “New Client Questionnaire.” The trial court denied the motion and the Court of Appeals affirmed. The Court ruled that, based on the Georgia Rules of Professional Conduct, the client controlled the scope of the attorney-client relationship.  Plaintiff in this case had expressly limited the scope of representation in December 2014 to only the collection of the records.  Since Plaintiff had not retained Mr. McClure for purposes of filing the lawsuit until July 29, 2016, there was no basis to dismiss the case. Notably, the subsection of OCGA 9-11-9.1 regarding the filing of an attorney affidavit is silent on whether the attorney is retained for any purpose, including the filing of the lawsuit. Instead, the plain language of the statute reads that the attorney must certify that his or her “law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiff's claim or claims.” Pico v. Brady, 2018 Ga. App. LEXIS 293 (2018). 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 reversed a jury verdict and remanded the case for retrial when the jury awarded past medical expenses but $0 for future medical expenses, past and future lost wages, and past and future pain and suffering. The Court held that the award of $0 was “so grossly inadequate” as to justify a new trial. The Court further held that it could not remand the case for a trial on damages only because the original jury apportioned 49% of the fault to the plaintiff. The case is Evans v. Rockdale Hospital, Ga.Ct.App. April 12, 2008. Mrs. Evans presented to the emergency department at Rockdale Hospital after waking with the “worst headache of her life.” She told the nursing staff she thought she had food poisoning and the triage nurse failed to document the complaint of a headache. Mrs. Evans was worked up for digestive complaints and discharged. She followed up with a primary care physician. She continued to experience a severe headache for several days, eventually returning to the hospital. A CT scan showed she had suffered a stroke as a result of a ruptured aneurysm. At the time of trial, she was permanently disabled and required 24 hour attendant care. At trial, Plaintiffs presented evidence of $1.2 million in past medical expenses, future medical expenses, past and future lost wages, and a day-in-the-life video, among other evidence, of pain and suffering. The jury returned a special verdict for the past medical expenses but $0 for all other items of damages, finding that Rockdale was 51% at fault and Mrs. Evans was 49% at fault based on what she complained of in the emergency department during the initial visit. Judgment was entered for just over $600,000, with an award for loss of consortium. Plaintiffs moved for additur or for new trial on the ground that the award was so grossly inadequate as to be inconsistent with the preponderance of the evidence. The trial court denied the motion and the Court of Appeals reversed and remanded for a new trial on all issues. The Court held that Plaintiffs had presented evidence of past and future pain and suffering and that the law infers pain and suffering from personal injury. Because the jury awarded the past medical expenses and there was such evidence of pain and suffering, then, as a matter of law, the $0 award was grossly inadequate. The Court distinguished other cases in which there had been awards of special damages, but no pain and suffering. Take-home message: this case probably does not have a lot of broad application, but is worth reading. We will monitor this case for further appeals. For more information on or to subscribe to our Health Law and Regulation Blog, please click here.

Health Law and Regulation Update Blog Posting by Eric Frisch. The Georgia Court of Appeals has reversed the dismissal of certain counts of a third renewal complaint against two corporate psychiatric services providers. In Curles v. Psychiatric Solutions, the Court held that Plaintiffs had stated claims for negligence per se and ordinary negligence, not professional negligence, and that those claims related back to an original complaint for purposes of statutes of limitation and repose. Plaintiffs are the estates and wrongful death claimants of two people killed by Amy Kern, a patient at a private psychiatric facility. Ms. Kern had been committed involuntarily to the facility on three occasions for psychotic episodes and violent tendencies. Twelve days after her last discharge, she killed her grandmother and her grandmother’s boyfriend. Plaintiffs filed an original complaint against the corporate defendants and individual providers, alleging breach of the duty to exercise reasonable care to control Amy, consistent with the Bradley Center case. They also filed an expert affidavit. Plaintiffs dismissed the corporate defendants from the original complaint without prejudice. Plaintiffs then filed a “renewal complaint” against the corporate defendants with the same allegations and moved to consolidate the “renewal complaint” with the original complaint. The trial court granted the motion and added the corporate defendants back to the case. Plaintiffs then filed second and third amended complaints, which the corporate defendants moved to dismiss. In the first part of the decision, the Court of Appeals held that Plaintiffs stated a claim against the corporate defendants for negligence per se based on the statutes requiring notice of discharge following involuntary commitment. The Court also held that Plaintiffs stated a claim for ordinary negligence against the corporate defendants because they alleged the decision to discharge Ms. Kern was based on the fact her insurance had run out, not on professional judgment. In ruling the claim was viable under the Bradley Center/control test, the Court held that although Bradley Center involved specific threats against specific people, the control principle is not so limited. Rather, the duty to control is to protect third parties generally, not specific third parties only. The Court re-emphasized the underlying principle that knowledge of threats generally is the key element in a case based on Bradley Center, distinguishing the Baldwin v. Hosp. Auth. of Fulton County case in which there was no evidence of actual or threatened harm prior to discharge. Lastly, the Court held that the non-professional malpractice claims were similar enough to the allegations in the original complaint, such that they would relate back. The take-home messages are (1) allegations of ordinary negligence or negligence per se will relate back, (2) dropped defendants can be added back into a case, and (3) a control claim under Bradley Center can be brought by injured third parties generally and is not limited to specific third parties targeted by the injuring party. Please click here for more information on our Health Law & Regulation Update Blog.

Blog Posting by Eric Frisch. The Georgia Court of Appeals affirmed summary judgment in favor of a pharmacy provider on claims of professional negligence arising out of a misfilled prescription. In the case of Roberts v. Quick Rx, Mr. Roberts’ wife went to the pharmacy to pick up his prescriptions. The cashier handed Ms. Roberts two filled bottles through a drive-through window. However, the bottles were for a different patient and for different medications. The following day, Ms. Bryant administered the medication to her husband, who was suffering from Alzheimer’s disease, diabetes, and high blood pressure. A little while later, she heard him call her name. She found her husband on the floor, confused. There was nothing in the area that would have caused him to fall. She called an ambulance and he was taken to the hospital for emergency surgery for a broken hip. The prescription error was later discovered and Plaintiffs sued Quick Rx for professional negligence, simple negligence, and punitive damages. The trial court granted summary judgment on the professional negligence and punitive damages claims. Regarding the medical malpractice claim, Plaintiffs’ pharmacy expert testified the standard of care required a pharmacist or their delegate to counsel the person picking up the medication about the medication and to match the patient with the prescription. This is part of a Georgia regulation. However, the expert did not rely on any facts to show this was not done or that it was not done by the pharmacist or their delegate. Accordingly, the trial court did not err in granting summary judgment. The Court held that the cashier’s failure to give the correct prescription to Ms. Bryant was a jury question on simple negligence. But, the same claim would not support a claim for punitive damages, so summary judgment was affirmed. Quick Rx cross-appealed, claiming there was no evidence of causation to support Plaintiffs’ claims that the fall made Mr. Bryant develop Alzheimer’s or made it worse. In response, Plaintiffs argued they were not making such a claim, but Ms. Bryant actually testified to it and they did not affirmatively state in response to summary judgment that they were not seeking that as an item of damages.  The Court affirmed the trial court’s grant of summary judgment on the issue. Lastly, Quick Rx claimed Plaintiffs’ causation expert did not provide a scientific basis for his opinion that the administration of the misfilled medication caused the fall. The trial court denied the motion and the Court of Appeals affirmed, holding that the expert had sufficient facts and a reasonable scientific basis for his opinions. Please click here for more information on our Health Law and Regulation Update blog.  

Blog Posting by Eric Frisch. The Georgia Court of Appeals has held that a partner in a medical practice group, called as a corporate witness under Rule 30(b)(6), is not an “expert witness” such that their opinion testimony is automatically admissible into evidence. In Yugeros v. Robles, the plaintiff alleged that Dr. Yugeros failed to diagnose and treat a complication of plastic surgery. When the patient presented to the hospital, Dr. Yugeros did a workup, but did not order a CT scan. During the lawsuit, Plaintiffs took the deposition of Dr. Yugeros’ partner, Dr. Alexander, as the corporate representative of the practice group pursuant to Rule 30(b)(6). During her deposition, Dr. Alexander testified the standard of care would be to order a CT scan. Plaintiffs asked for the representative familiar with the records to testify. However, Dr. Alexander had not realized Dr. Yugeros did not order a CT scan. Prior to trial, Dr. Yugeros moved to exclude Dr. Alexander’s testimony. The trial court granted the motion. After going up to the Supreme Court, the Court of Appeals held the trial court did not abuse its discretion in excluding the testimony because Plaintiffs failed to show that Dr. Alexander was qualified as an expert to opine on the standard of care.  The reasoning was that, although Dr. Alexander was a corporate representative, to be admissible, her testimony still had to be otherwise admissible. Since standard of care testimony is expert testimony, the Plaintiffs bore the burden of qualifying her and they didn’t do so. Please click here for more information on our Health Law and Regulation Update.

Blog Posting by Eric Frisch. The Georgia Court of Appeals has affirmed the trial court’s denial of a motion to dismiss a complaint against an emergency physician in the case of Graham v. Reynolds. Plaintiffs claimed Dr. Graham, an emergency physician, failed to diagnose an acute coronary syndrome on presentation to an emergency department. Dr. Graham discharged the patient, who then suffered a massive heart attack and died. Plaintiffs attached to their complaint the affidavit of a cardiologist specializing in electrophysiology. Dr. Graham moved to dismiss on the grounds that the affidavit expert was not qualified and because the affidavit did not opine on gross negligence. The trial court denied the motion. The Court of Appeals affirmed, holding that plaintiff’s affidavit expert was not disqualified solely because he is a cardiologist and not an emergency physician. The Court held that the affiant demonstrated sufficient knowledge in the area of diagnosing a heart attack on EKG to survive a motion to dismiss. The Court also rejected the contention that the affidavit was deficient because it did not contain facts showing gross negligence. The Court held that Section 9-11-9.1 only requires the affidavit set forth a negligent act or omission, which is a pleading required. Section 51-1-29.5, on the other hand, sets forth an evidentiary requirement, not a pleading requirement. The take-home message is that it remains difficult to challenge an expert affidavit at the motion to dismiss phase. Please click here for more information on our Health Law and Regulation Update blog.

Blog Posting by Eric Frisch. The Georgia Court of Appeals reversed the grant of summary judgment to a physician group, holding that the liberal pleading rule does not require a plaintiff to name each individual provider for whom a named physician group may be liable. Plaintiff filed a wrongful death case against two named doctors, among others, including 24 On Physicians, PC ("24 On"). Plaintiff dismissed and refiled under the renewal statute, naming the same two doctors and named their practice group on a theory of vicarious liability. The renewal complaint included a general allegation that “physicians” and other actual or ostensible agents of the group contributed to the death. Initially, the group moved to dismiss on the grounds the expert affidavit did not specifically mention the group. Plaintiff filed an amended affidavit in response. Plaintiff then filed another affidavit, which broadened the claim against the group to include unnamed physicians, employees, and agents. The group then moved for summary judgment on claims of vicarious liability for anyone other than the original named physicians based on expiration of the statute of limitations. The trial court granted the motion. The Court of Appeals reversed, holding that Plaintiff “was not required to specifically name each physician for which 24 On was allegedly responsible in the renewal complaint.” Rather, Georgia law only requires a pleading set forth a short and plain statement of the claims. The Court then held that the renewal complaint controlled the statute of limitations question and that the expert affidavit only needed to set forth one act or omission claimed to exist. Lastly, the Court distinguished the Thomas v. MCCG case, holding that the “alleged negligence of the “treating physicians” who were agents or employees of 24 On was contemplated in the renewal complaint.” The case is Oller v. Rockdale Hospital, 2017 Ga.App. LEXIS 383 (August 14, 2017). Please click here for more information on our Health Law and Regulation Update Blog.

Recent blog post by Eric Frisch. In Ziglar v. St. Joseph’s Cander Health System, the Georgia Court of Appeals affirmed the dismissal of a claim against a hospital due to a deficient expert affidavit. Plaintiff alleged he arrived at the hospital unconscious and developed a stage IV pressure ulcer during his stay. In his complaint, Plaintiff alleged that the hospital, nursing staff, and support staff, failed to assess properly and treat the ulcer and failed to advocate for him while he was unconscious. With the Complaint, Plaintiff filed an affidavit of an expert nurse. The hospital answered and filed a motion to dismiss under Section 9-11-9.1 based on the failure to set forth at least one negligent act or omission and the factual basis for the allegation. According to the opinion, the following was the salient paragraph from the affidavit: "Based on my review of the above-described medical records, it is my opinion within a reasonable degree [*3]  of medical probability that the staff of St. Joseph's Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat Jason Keith Ziglar's wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required." The Court held that this paragraph and the rest of the affidavit were deficient because the affidavit did not specify discrete instances of alleged “failure to . . . treat, assess, and advocate.” Likewise, the affidavit did not include any factual basis, such as dates and times. Plaintiff attempted to argue that the case was really one for simple negligence, but the Court disagreed. The take-home of this case is that challenges to the sufficiency of an expert affidavit are case specific. This opinion does give some credence to the idea that a plaintiff has to set forth some specifics to state a claim. For more information on our Health Law and Regulation Update blog or to subscribe, click here.

Blog Post by Eric Frisch. The Georgia Court of Appeals has affirmed a verdict in favor of the parents arising out of the death of a child born prematurely. In the case of Central Ga. Women’s Health Center v. Dean, Plaintiffs alleged that Dr. Henry Davis and Central Georgia Women’s Health Center were liable for failure to diagnose an incompetent cervix, leading to the premature delivery and death of their child. The jury returned a verdict of $4.5 million, but apportioned 50% of the fault to Dr. Davis. Defendants sought a directed verdict on causation and a motion in limine on Dr. Davis’ post-operative documentation. After verdict, the defendants sought JNOV, which was denied. The Court of Appeals affirmed. Mrs. Dean became a patient of CGWHC at 6 weeks pregnant. She gave a history of two prior miscarriages and a loop electrosurgical excision procedure (LEEP), which put her at risk for an incompetent cervix. The first obstetrical provider ordered frequent ultrasounds throughout the pregnancy. At 22 weeks, an ultrasound showed a shortened cervical length and Ms. Dean was told to rest. Six days later, Mrs. Dean began to experience thick, dark vaginal discharge. She and her husband went to the emergency department at a local hospital. Along the way, they spoke with Dr. Davis and told him about Mrs. Dean’s history and the recent ultrasound. Dr. Davis told the Deans that the discharge was probably old blood and that the hospital would likely send them home. The Deans proceeded to the hospital, where she was examined by a nurse. The nurse called Dr. Davis, but he did not come to the hospital. After discharge, Mrs. Dean continued to be symptomatic. In the early morning hours of the day after discharge, Mrs. Dean again called Dr. Davis to report the worsening symptoms. Dr. Davis asked Mrs. Dean to come to the office for a scheduled visit at 9:00 am. Mrs. Dean kept the appointment and was seen by a different provider, who recommended that Mrs. Dean see a maternal-fetal specialist that day. In between, Mrs. Dean was sent to the labor and delivery department at the hospital for complaints of increased pain. Mrs. Dean then went into premature labor and delivered the child at 23 weeks. The child then passed away due to extreme prematurity. After delivery, Dr. Davis wrote two post-delivery notes about examining Mrs. Dean in the hospital. Mrs. Dean denied that Dr. Davis visited on the first day and Mr. Dean testified that a different provider was in the room that day. Dr. Davis later struck through the note to indicate it was written in error, indicating that Mrs. Dean was not in the room. The Deans testified they were in the room and a nursing note indicated they were. Dr. Davis also documented another note of an exam, which Mrs. Dean denied happened. Causation – the question was whether Plaintiffs proved causation to a reasonable degree of medical probability. Plaintiffs’ expert testified that a “stitch would have saved this pregnancy” and resulted in a 2-4% better chance of survival each day the baby stayed in the womb. The Court held that despite some waffling by the expert, the inferences to be drawn were enough to survive directed verdict. Motion in Limine – the Court held the trial court was within its discretion to allow cross-examination of Dr. Davis about the post-operative notes as indicative of his capacity to tell the truth under Rule 608. The Court held that the jury could determine whether Dr. Davis’s note “involved in deliberate deception rather than a simple mistake.” The take-home from this case is that claimants can prove causation by multiple data points, not just single sentences from an expert witness. This is the prevailing trend on causation per the Court of Appeals, so causation attacks must address all of the data points, not just weak witness opinions. For more information on our Health Law and Regulation Update Blog or to subscribe, click here.  

Eric Frisch will present Neonatal Brachial Plexus Palsy at the ACI Obstetric Malpractice Claims Conference. The conference will run from June 26-27 at The Union League of Philadelphia, 140 South Broad Street, Philadelphia, PA 19102. Eric’s presentation will be on June 26 at 10:30 a.m. Please click here for more information. Neonatal Brachial Plexus Palsy • Brachial plexus: injury with and without shoulder dystocia • Fundal pressure, expulsive forces and clinician applied forces • Failure to detect macrosomia • Understanding the key risk factors for shoulder dystocia, how they should be managed, and the delivery note • The Expulsion Defense and its impact on juror’s perception of defense credibility and verdicts Clients, contacts, and colleagues are eligible for a speaker discount referral rate valid until May 5th. As a speaker referral, the attendee will be registered at an unpublished rate (not available online). Register by May 5th and your clients, contacts, and colleagues can register at the referral rate of $1,885.50. This rate is available only through Esther Ro at ACI and not online. Please contact Esther directly with your contact information. Esther Ro, Esq. Sr. Legal Analyst & Program Director American Conference Institute Business Information in a Global Context 45 West 25th Street, 11th Floor, New York, NY 10010 Phone: 212-352-3220 ext. 5225 Email: e.ro@americanconference.com Please book your hotel rooms at The Union League of Philadelphia as rooms are booking fast. Please call 215-587-5570 and mention “Obstetric Malpractice” to get the preferred rate.

Blog Posting By Eric Frisch. The Georgia Court of Appeals held that the jury should decide two medical malpractice cases on issues of causation. Everson v. Jordan – in this case, Plaintiffs are the parents of a man who died after running in front of a truck two days after presentation to the emergency department. The Court held that whether the man’s death was reasonably foreseeable to the emergency physician was a jury issue. Fields v. Taylor – Plaintiffs were the surviving children and estate of a nursing home patient, who developed pressure sores before passing away. Plaintiffs sued the nursing home and the treating physician. The nursing home settled. The trial court granted summary judgment to the physician, ruling there was no evidence to link any alleged acts of the physician to the outcome. On appeal, Plaintiffs alleged they had an expert to opine on violation of standard of care and the treating medical examiner opined the cause of death was sepsis from infected pressure sores. The Court of Appeals reversed summary judgment, holding there was no requirement of a specific “proximate cause” expert and that the jury should decide the link between the alleged negligence and the outcome. The take-home in both cases is the statement that proximate cause can be proven by linking together disparate pieces of evidence from multiple witnesses. In addition, it remains unclear the extent to which cause-in-fact is an essential element within the proximate cause analysis (compare the holding in the Swint v. Mae case). Please click here for more information on our Health Law and Regulation Update Blog.

Blog Posting by Eric Frisch. The Georgia Court of Appeals recently affirmed summary judgment for a defendant doctor and nurse in a compartment syndrome case. Plaintiff alleged that he developed compartment syndrome in his arm from positioning during prostate surgery. Plaintiff contended that the standard of care was to reposition during surgery to relieve pressure and avoid surgery. Plaintiff produced two experts, but neither was able to say whether the initial position or the failure to reposition during the procedure caused the injury. At best, both experts could only say that the failure to reposition “may have contributed” to the outcome, but neither expert could say whether it was more likely than not. The trial court granted summary judgment and the Court of Appeals affirmed. This case is an outlier in a series of opinions regarding causation in medical malpractice cases. The take-home is that there may be an opportunity to reestablish the formerly brighter line of causation evidence. The case is Swint v. Mae, 2017 Ga.App. LEXIS 85 (March 6, 2017). Please click here for more information on our Health Law and Regulation Update Blog.

Blog Posting by Eric Frisch. In a second ruling in the Thomas v. Atlanta Medical Center matter, the Georgia Court of Appeals remanded the case back to the trial court for further determination of whether the defendant emergency physician and radiologists were agents or in a joint venture. The emergency physician contracted with a practice group, who, in turn, contracted with the hospital. The group-hospital contract designated the doctor as an independent contractor. The doctor, however, did not have an agreement with the hospital. The radiologist was a member of a professional corporation who also contracted with the hospital. The radiology group-hospital contractor also designated the radiologist as an independent contractor. Plaintiff alleged that both doctors formed a “joint venture” with the hospital to provide medical services for profit. The hospital moved for summary judgment on the grounds that the group-hospital contracts contained sufficient language under O.C.G.A. §51-2-5.1, which holds a hospital harmless for the acts of independent contractors under certain circumstances. The trial court granted summary judgment. The Court of Appeals reversed on narrow grounds; specifically, the Court ruled that the trial court did not address the relationship between the doctors and the hospital and the language in the group-hospital contracts was not sufficient as a matter of law to comply with the statute. The Court wrote that the hospital may still ultimately be entitled to summary judgment, but not on the record. The trial court also granted summary judgment on the joint venture issue. Plaintiff complained that the trial court granted the motion sua sponte and without notice. The Court of Appeals agreed and remanded the issue back to the trial court for full briefing. The take-home message is that Section 51-2-5.1 is defendant-specific and will be applied according to the plain language of the statute. Please click here for more information on our Health Law and Regulation Update Blog.

Blog Posting by Eric Frisch. The Georgia Court of Appeals reversed summary judgment in favor of a doctor and nursing home in the case of Fields v. Taylor, decided January 18, 2017, holding that the trial court erred in granting the motion on proximate cause. Plaintiffs alleged their mother died as a result of sepsis from a decubitus ulcer that developed during a stay at the defendant rehab facility. Plaintiffs presented the testimony of a well-known medical examiner, who opined that the cause of death was sepsis from the wound in his opinion. Defendants moved to exclude the expert’s opinions as unreliable, which was denied, and moved for summary judgment on the grounds that Plaintiffs failed to present an expert to opine on the connection between the cause of death and the specific acts of negligence, which they called “proximate cause.” (Note – we would call this “cause-in-fact”). The Court of Appeals affirmed the denial of the motion to exclude, holding that the expert properly used the “differential diagnosis” method and then drew conclusions based on experience. The Court reversed the grant of summary judgment, holding that the Plaintiffs were not required to produce expert testimony specifically on “proximate cause” and that the testimony of several experts can be pieced together to create a fact dispute. In this case, Plaintiffs presented a standard of care expert and the medical examiner expert. Together, their testimony was sufficient to create a genuine issue of fact. The take-home is that it continues to be difficult to win summary judgment on proximate cause in medical malpractice cases, even when the expert testimony appears weak and disconnected. Please click here for more information on our Health Law and Regulation Update blog.

Recent Blog Posting by Eric Frisch. In the case of Thomas v. Atlanta Medical Center, the Georgia Court of Appeals reversed the dismissal of a “simple negligence” claim based on expiration of the statute of limitations. The case arose out of the alleged failure to diagnose a neck fracture and improper spine clearance in the emergency department. Plaintiff alleged the hospital was vicariously liable for the emergency physician and interpreting radiologist. The hospital denied and claimed they were independent contractors. During discovery, an alleged conflict in the evidence arose as to whether the emergency physician and nurse followed hospital protocol for removal of the cervical collar following radiological clearance. Plaintiff amended her complaint to add a claim for “simple negligence” against the hospital and nurse for failure to follow the protocol. The hospital moved to dismiss the claim based on expiration of the statute of limitations and the case of Thomas v. Medical Center of Central Georgia. The trial court granted the motion. On appeal, the Court of Appeals further limited the application of the Thomas v. Medical Center of Central Georgia case. The Court distinguished that case because it was decided on application of the affidavit statute, not the relation back statute. The Atlanta Medical Center case represents a further erosion of the Medical Center of Central Georgia case and strengthens the ability of claimants to add claims even though the statute of limitations has expired, especially if the claims are couched as non-professional malpractice claims. Please click here for more information on our Health Law and Regulation Update blog.

Recent Blog Posting by Eric Frisch. On November 28, 2016, the Office of Civil Rights of the Department of Health and Human Services, the entity responsible for HIPAA administration, issued an alert about a potential “phishing” email scam. The email purports to come from OCR’s Director, Jocelyn Samuels, and targets employees of covered entities and business associates. The email appears legitimate and includes a link concerning the audit program. By clicking on the link, the user is redirected to a cybersecurity firm marketing website. For those who may not be familiar with the term, “phishing” refers to an email that looks official or legitimate, but then redirects the person to an unaffiliated website. Common “phishing” emails mimic requests from credit card companies for personal information, auction sites for login information, and banks for updated privacy information. As always, if you have received an email that you did not expect and have questions about it, contact the alleged source directly to verify before opening. Please click here for more information on our Health Law and Regulation Update Blog. Please click here for more information on our Cyber Liability Blog.

Recent blog posting by Eric Frisch. In a lengthy ruling covering many issues related to a trial, the Georgia Court of Appeals affirmed the exclusion of a doctor’s past substance abuse issues on the grounds of relevance. In the case of Doherty v. Brown, et al., issued on November 18, 2016, the Court addressed numerous issues arising out of a $22 million verdict against a pain physician and his practice group. The Plaintiff claimed that the doctor’s past substance abuse issues went to the question of “patient safety.” The doctor moved in limine and the trial court granted the motion. When Plaintiff attempted to bring it up at trial, the doctor objected and the trial court sustained the objection. On appeal, Plaintiff claimed the evidence should have been admitted. The Court disagreed, holding that the trial court properly exercised its discretion to exclude the evidence because there was no proof the doctor was impaired at the time of the surgery at issue. The take-home is that the appellate courts have repeatedly held that evidence of a physician’s past substance use or abuse is not relevant to the issue of malpractice unless there is proof of impairment at the time of the incident. Please click here for more information on our Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. In the case of Hospital Specialists of Georgia, Inc. v. Gray, October 27, 2016, the Georgia Court of Appeals held that the trial court properly denied summary judgment to a practice group based on “substitution” of a second doctor after expiration of the statute of limitations, limiting the case of Thomas v. Medical Center of Central Georgia. Plaintiff Gray’s wife died after developing ARDS. Plaintiff sued Hospital Specialists of Georgia (“HSG”). Plaintiff alleged that Dr. Garrison was an employee or agent of HSG and that he was negligent and caused his wife’s death. Counsel for HSG met with Dr. Garrison shortly after the complaint was filed and determined that Dr. Ellis had treated Ms. Gray, not Dr. Garrison. The appellate decision is light on facts, so it is not clear whether this was disclosed in discovery or not. Over three and a half years after the death and 1.5 years after expiration of the statute of limitations, HSG moved for summary judgment on the grounds there was no evidence Dr. Garrison caused Ms. Gray’s death. Plaintiff then amended the complaint “to clarify” that Dr. Ellis was the doctor for whom HSG was vicariously liable. HSG moved for summary judgment on this claim as well, claiming expiration of the statute of limitations and relying on Thomas v. Medical Center of Central Georgia. The Court of Appeals held that Plaintiff “simply corrected a misnomer” and that the claims against Dr. Ellis were exactly the same as the claims against Dr. Garrison, as distinguished from the Thomas case. The Court reasoned that there was no surprise to HSG and that Plaintiff properly submitted an amended affidavit with opinions against Dr. Ellis. This decision stands out from other appellate decisions regarding “misnomers,” which has historically been used to correct the wrong name for the right person, as opposed to substituting one person for another. The Court did not address the statute of limitations argument in the decision. Please click here for more information on our Health Law and Regulation Update Blog.

Recent blog posting by Eric Frisch. The Georgia Supreme Court reversed the Court of Appeals’ decision in the case of Yugueros v. Robles and remanded for review of whether a corporate representative was qualified to give standard of care testimony in a medical malpractice case. In Yugueros, the medical issue was whether a stat CT scan was needed after discharge from an emergency department. The post-abdominal surgery patient presented to the emergency department with pain. An x-ray was read as unremarkable, but with a recommendation for a CT scan. Dr. Yugueros was contacted after the pain worsened.  Dr. Yugueros saw the patient, but did not order a CT scan. During the litigation, plaintiff served a notice of deposition for a corporate representative (a “30b6 witness”). Dr. Yugueros’ partner was designated as the representative of the group. During the 30b6 deposition, the representative testified that Dr. Yugueros ordered a CT scan, when, in fact, she had not. The follow-up questions indicated that the representative considered ordering a CT scan part of the standard of care. Before trial, Dr. Yugueros and her group moved to exclude the 30b6 witness testimony because it was not based on facts in the record, consistent with the rules regarding expert witness testimony. Plaintiff opposed, and argued that it was an admission against interest. The trial court excluded the testimony and the Court of Appeals reversed because the testimony was not “expert” testimony but rather an admission against interest. On certiorari, the Supreme Court reversed, holding that while depositions may be used by an adverse party “for any purpose,” that does not trump the rules regarding the admissibility of evidence, including the requirement that opinion testimony be based on facts. The Court sent the case back to the Court of Appeals for further review. Take-home: the case is not yet decided. But, it demonstrates that deposition testimony must still meet other evidentiary thresholds before it becomes admissible into evidence. Please click here for more information on Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. On October 22, 2016, the FTC issued new guidance to all those subject to the HIPAA Privacy Rule, including “downstream” business associates. “Once you’ve drafted a HIPAA authorization, you can’t forget the FTC Act,” which prohibits deceptive or unfair acts or practices affecting commerce. According to the FTC, this includes the duty to avoid misleading others about what is happening with their health information. “Your business must consider all of your statements to consumers to make sure that, taken together, they don’t create a deceptive or misleading impression.” The FTC includes a “.com Disclosures report” for guidance on creating effective privacy practices disclosures. The FTC warns against inconsistent language in privacy practices disclosures and contradictions regarding when information may be displayed publicly. Please click this link for more information: https://www.ftc.gov/system/files/documents/plain-language/pdf-0219_sharing-health-info-hipaa-ftcact.pdf Please click here for more information on our Health Law and Regulation Update Blog.

Recent blog posting by Eric Frisch. The Georgia Court of Appeals reversed a defense verdict on the grounds the trial court improperly “prohibited” a plaintiff from refreshing the recollection of a witness with an affidavit that was not disclosed in discovery. Plaintiff alleged she suffered weakness in her legs, lost the ability to stand, and urinary incontinence following the second in a series of lower back injections performed by the defendant anesthesiologist. The second injection was performed on May 12. The anesthesiologist testified she assessed Plaintiff after the injection and there were no problems walking. The staff testified Plaintiff would not have been discharged if there were problems. On May 14, the anesthesiologist received a phone message from Plaintiff saying that her legs were “hardly working at all.” The anesthesiologist called Plaintiff, who said he was having spasms and pain, but did not mention other problems. The anesthesiologist testified she offered to see Plaintiff, among other things. Plaintiff disputed the anesthesiologist’s version of the events. Plaintiff testified that the anesthesiologist did not offer to see her and that she could not recall whether she told her about the urinary issues. On May 18, Plaintiff went to an orthopedist, who operated on her. The key issue was the testimony of a fact witness doctor who employed the anesthesiologist, Dr. Gadlage. Plaintiff disclosed Dr. Gadlage’s name in interrogatory responses, but did not identify an affidavit she had obtained from Dr. Gadlage about a key phone conversation around May 14. It appears Plaintiff obtained the affidavit after responding to discovery initially, but did not supplement the discovery responses. Dr. Gadlage was listed in the pretrial order as a witness, but Plaintiff’s counsel told defense counsel that Dr. Gadlage was only a “character witness,” and would not be called on standard of care. Defendant did not depose Dr. Gadlage. Dr. Gadlage testified at trial that he remembered talking with Plaintiff about pain, possibly weakness. He could not remember Plaintiff talking about the inability to walk or urinary incontinence. Plaintiff then sought to use the affidavit, presenting it for the first time. The defense objected. Plaintiff conceded at a sidebar that she had not disclosed the affidavit, believing it to be work product. The trial court prevented Plaintiff from using the affidavit, even to refresh Dr. Gadlage’s recollection. The defense won. The Court of Appeals reversed, holding that prohibition of the use of the affidavit was legal error. Rather, the trial court should have continued the case, declared a mistrial, or allowed the defense to review the affidavit and take a deposition, if needed. The Court recognized that Plaintiff “acted purposefully” in failing to disclose the affidavit, but concluded that Dr. Gadlage was a known witness and that exclusion or prohibition was not the appropriate remedy. The case is Anglin, et al. v. Smith, A16A1405 (October 12, 2016). Please click here for more information on our Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. The Georgia Court of Appeals has held that a claim against a hospital for the negligence of a nurse involving the fall of a patient from a wheelchair is not a claim that requires an expert affidavit. Plaintiff is an elderly patient who used a cane to walk. Seeing the patient struggle, a nurse offered the patient a wheelchair for transport in the hospital. After moving the patient through the treatment area without incident, the nurse wheeled the patient back to the waiting room. Along the way, they encountered a door through which the wheelchair would not fit. The patient lifted out of the wheelchair but their pants leg got caught on the foot pedals. The patient fell and was injured. Plaintiff filed the suit without an expert affidavit, claiming ordinary negligence. The trial court granted summary judgment to the hospital. The Court of Appeals reversed, holding that the record did not demonstrate that only medical people could transport the patient with a wheelchair. Similarly, the record showed that the nurse failed to follow the manufacturer’s instructions, forming the basis for the ordinary negligence claim. As an aside, in a footnote, the Court noted that the hospital moved for a setoff of the patient’s medical bills for sums not charged or which the hospital paid for the patient. The Court declined to rule on that part of the appeal because the trial court did not rule on it. The case is Byrom v. Douglas Hosp., 2016 Ga. App. LEXIS 543 (Oct. 4, 2016). Please click here for more information on our Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. Eric is a partner with Carlock, Copeland & Stair in Atlanta, Georgia. He has practiced for twenty years and focused his practice on the defense of medical professionals for the last fifteen years with a focus on maternal-fetal claims. Since our previous article at the beginning of this year, interest in the topic of “obstetric violence” and related topics has increased. In January 2016, the doctor who performed a refused episiotomy captured on camera surrendered his license. In June 2016, the American College of Obstetricians and Gynecologists issued Committee Opinion Number 664, Refusal of Medically Recommended Treatment During Pregnancy. Also in June, informed refusal and obstetric violence were the topic of a panel counsel discussion at the American Conference Institute’s 13th Annual Advanced Forum on Obstetric Malpractice Claims. This month, the Atlanta Journal Constitution published an extensive investigation on physician sexual assaults and other abuses. With the maturing of the topic in the media and legal discussions, we take a look at the recent developments.

PRIMER ON OBSTETRIC VIOLENCE

OBSTETRIC VIOLENCE IN THE UNITED STATES

ACOG’S COMMITTEE OPINION NUMBER 664

CONCLUSION

Recent blog posting by Eric Frisch. The Georgia Court of Appeals recently vacated a lower court ruling that a nursing home resident lacked capacity to enter into an agreement to arbitrate her disputes. The Court did not reverse the trial court, but rather sent the case back to the trial court for more hearings, concluding the trial court used the wrong standard and shifted the burden of proof when ruling on the motion to compel arbitration. The patient was living home alone when she fell. After surgery, she was admitted to the nursing home. On admission, the patient had a number of chronic medical conditions and a “history of some cognitive impairments.” The month before she fell, she had two visits to the emergency department for feeling “loopy and out of sorts, with some memory loss.” On neurological exam, she was noted to have mild cognitive impairment, depression, and amnesia. But, on admission to the hospital, she was able to give treatment consent. On admission to the nursing home, she was taking narcotic pain medication. After admission, she was assessed as having episodes of confusion, forgetfulness, anxiety, and other cognitive deficits. The patient passed away and her family and estate sued the nursing home. The nursing home moved to compel arbitration based on the patient’s election to arbitrate in the admission agreement. In ruling on the motion, the trial court used a summary judgment standard and ruled that the nursing home bore the burden of proving the absence of evidence for the plaintiffs’ claims that the patient lacked capacity. In other words, the trial court required the nursing home to point out that the plaintiffs couldn’t prove the negative. The Court of Appeals concluded the trial court used the wrong legal standard. The law in Georgia is that a party may seek an order compelling arbitration and the trial court shall “summarily hear and determine the issue.” O.C.G.A. §9-9-6 (a). The law governing contract formation applies, which means the issues are generally for the court to determine as a matter of law, as opposed to determining whether there are issues of fact for a jury to consider, like on summary judgment. In this case, the nursing home produced a valid, signed arbitration agreement. Thus, the burden of proof shifted to the plaintiffs to prove that the patient was not competent when she signed it, as opposed to requiring the defense to show that the plaintiff did not have evidence to support their claim. The case is Kindred Nursing Centers v. Chrzanowski, __ S.E.2d ___ (Ga.Ct.App. September 28, 2016). The panel deciding the case was Presiding Judge Yvette Miller and Judges Christopher McFadden and Carla Wong McMillan. Please click here for more information on our Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. The Office of Civil Rights has issued a FAQ on this question: “May a business associate of a HIPAA covered entity block or terminate access by the covered entity to the protected health information (PHI) maintained by the business associate for or on behalf of the covered entity?” In answering “no,” the OCR explained that the business associate is limited to using the PHI in its possession by the terms of its agreement with the covered entity. In addition, the business associate cannot block the covered entity’s access to the PHI. For example, a business associate cannot use an embedded software “kill switch” to block access to electronic PHI because of a billing dispute with a covered entity. Moreover, business associates are required under the Privacy Rule to ensure the integrity and availability of PHI in their possession. This includes on demand access by the covered entity. There is an exception for business associate arrangements that include data aggregation or combinations that ultimately destroy the source data in the possession of the business associates. Bottom-line – business associates do not own the PHI in their possession. The PHI belongs to the individual but the business associate is responsible to the covered entity for maintaining the PHI in its possession or custody. Please click here for more frequently asked questions. Please click here for more information our Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. In the case of Carter v. Cornwell, 2016 Ga.App. LEXIS 523 (September 21, 2016), the Georgia Court of Appeals affirmed the dismissal of a doctor for Plaintiff’s failure to file an expert affidavit, but reversed regarding the doctor’s practice group.  Carter was a longtime patient of Dr. Cornwell and his practice group. Dr. Cornwell wrote a prescription for Ms. Carter for 120 pills of hydrocodone. Before Ms. Carter left the office, Dr. Cornwell changed the number of pills to 180 on the same prescription. Ms. Carter then went to fill the prescription at the local pharmacy. The pharmacy saw the altered prescription and then called Dr. Cornwell’s office. The on-call doctor covering for Dr. Cornwell did not know that Dr. Cornwell changed the prescription and did not call Dr. Cornwell for guidance. Ms. Carter was then arrested for altering a prescription to obtain a controlled substance. Ms. Carter sued Dr. Cornwell and the practice group, but did not file an expert affidavit. Dr. Cornwell and the group moved to dismiss and the trial court granted the motion. The Court of Appeals affirmed the dismissal of Dr. Cornwell, holding that he was exercising professional judgment when he decided to change the number of pills and, by extension, the dosage, for Ms. Carter. Plaintiff argued that the decision to change the dosage may have been professional discretion (and therefore requiring an affidavit), but the act of altering the prescription was “administrative,” not professional. The Court of Appeals disagreed, concluding that the entire act fell within the scope of professional duties that require an expert affidavit. As to the group, however, the Court of Appeals reversed. The Court held that the claims against the practice for failure to handle the on call responsibilities properly was not an act of “professional judgment or skill” because the question was one of simply verifying whether the patient was in possession of a lawful prescription. Bottom-line – claims or ordinary, simple, and administrative negligence are surfacing frequently in cases and the rules about what is and is not a claim requiring an affidavit sometimes appear to be made on a case-by-case basis. Please click here for more information on our Health Law and Regulation Update Blog.

Recent Blog Posting by Eric Frisch. In a recent Georgia Court of Appeals decision, the Georgia Court of Appeals wrote in a footnote that the “law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear.” In the case of McKuhen v. TransformHealthRX, Inc., 2016 Ga.App. LEXIS 458 (Ga.Ct.App. July 15, 2016), the Court, led by Presiding Judge Yvette Miller, wrote this in response to the malpractice defendant’s challenge to the qualifications of plaintiff’s expert. The case involved charges of malpractice and deliberate indifference at a jail. Plaintiff’s expert submitted an affidavit in support of the complaint in which he recited that he had been in the active practice for three of the five years leading up to the incident, ostensibly in compliance with Georgia law. The defense moved to dismiss and, alternatively, for summary judgment, challenging the claim. The expert submitted a supplemental affidavit, in which he claimed to have actively practiced. In his deposition, however, he explained that his active practice and teaching experience did not include the specific issue in the case – monitoring and treatment of someone withdrawing from alcohol. The Court of Appeals affirmed the trial court’s ruling that the expert was not qualified under an abuse of discretion standard. In a footnote, the Court wrote:

“The law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear. One set of rules applies when the expert's competency is challenged and a hearing is held; a different set of rules governs the trial court's evaluation of the affidavit when the expert's competency is challenged and no hearing is held. Similarly, the standard of appellate review differs depending on whether the trial court had a hearing on the issue of the expert's competency. It is irrelevant whether or not evidence was offered at the hearing. If there is a hearing on the expert's competence, the trial judge weighs the evidence in the plaintiff's witness's affidavit, or in the competing affidavits, and decides whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of [OCGA § 24-7-702 (c)]. When such a hearing has taken place, the trial court's decision is reviewed on appeal for abuse of discretion.”

Recent Blog Posting by Eric Frisch. We reported about the Malatesta v. Brookwood Medical Center case as part of our writings on obstetric violence. The Malatestas sued Brookwood, alleging they were misled about the types of alternative birth services that were offered. The Malatestas wanted a water birth with minimal medical intervention and Brookwood allegedly represented they had full capability to accommodate the birth plan. The Malatestas alleged that when they went in for the delivery, no one was aware of the birth plan and she was subjected to multiple medical interventions over her objections. Recently, the case went to trial and the jury returned a $16 million verdict, which included $10 million in compensatory damages and $1 million for loss of consortium. With the recent release of the American Congress of Obstetricians and Gynecologists' practice bulletin on patient autonomy and now this verdict, there is a larger trend of informed refusal and patient autonomy cases may be starting. Please click here for more information on our Health Law and Regulation Update Blog.

Recent blog posting by Eric Frisch. In McKuhen v. TransformhealthRX, Inc., the Georgia Court of Appeals affirmed the exclusion of an unqualified expert witness in a medical malpractice case. The expert, Dr. Kern, stated in the affidavit submitted to comply with O.C.G.A. §9-11-9.1 that he had experience with correctional health and alcohol detoxification. In his deposition, however, Dr. Kern “provided more specific testimony that contradicted his affidavits.” While Dr. Kern testified he had done some teaching, he conceded his coursework did not relate to alcohol detoxification, the issue in the case. Likewise, although he claimed working in correctional health, it was as an administrator, not a clinician and without nursing supervision oversight. The Court concluded that it was “constrained by the standard of review” to affirm the trial court’s decision to exclude the testimony and ultimately, summary judgment on the medical malpractice claim in the case. Please click here for more information on our Health Law & Regulation Update Blog.

Recent blog posting by Eric Frisch. Welcome back from an extended absence everyone. The Georgia Supreme Court has issued three interesting decisions. The first is related to the “Daubert” standard for causation testimony (Scapa Dryer v. Knight). The second relates to expert affidavits in support of malpractice cases (Zarate-Martinez v. Echemendia). Lastly, the Doctor’s Hospital of Augusta v. Alicea case deals with the complicated issues of good faith immunity under the Advanced Directive statute and patient autonomy. In the Scapa Dryer case, the Court held that the testimony of plaintiff’s causation expert in an asbestos case did not “fit” the facts of the case. This holding is a big advancement in the “Daubert” jurisprudence in Georgia. The concept of “fit” – whether the opinion matches up with the facts of the case reliably – is pretty robust in the Federal jurisprudence but underdeveloped in Georgia. The concept is that while an expert witness opinion may be facially valid – the produce of reliable methods and not “junk science” – the trial court still has to assess whether the expert is applying the theory or method reliably to the actual facts. In Scapa Dryer, the expert’s theory was not junk – he opined that minimal exposure to asbestos can cause mesothelioma. However, he could only opine that the defendant possibly caused “more than zero” exposure and, therefore, in his opinion, was completely responsible. The Court rejected this theory under the “fit” portion of the “Daubert” standard. In Zarate-Martinez, the Court rejected an all-out constitutional assault on the expert qualifications portion of O.C.G.A. §24-7-702(c). Although the claimant had not raised the constitutional issues below, the Supreme Court reached down to assess those issues, rejecting every attack – due process, equal protection, and special law, among others. The Court vacated the trial court exclusion of the expert, however. The trial court held that the expert’s affidavit did not comply with the law because there was no evidence the expert specifically performed the procedure at issue – open tubal ligation – during the 3 out of 5 year period. The Court vacated and remanded to the trial court for more evidence on the issue of whether the expert had “sufficient knowledge” of the procedure. Doctor’s Hospital v. Alicea is a more complicated case. In a nutshell, the Court held that a provider who acted contrary to an Advanced Directive without even consulting the healthcare power of attorney was not entitled to “good faith immunity.” Under the Advanced Directive statute, a healthcare provider is supposed to follow the letter of the directive and/or the wishes of the healthcare power of attorney. If they do follow those directives, they are entitled to immunity. If the provider feels the Advance Directive or power of attorney’s decision should not be followed, they are supposed to explain why and then transfer care if they cannot resolve the difference. In this case, the provider intubated against the terms of the Advanced Directive and did not consult with the healthcare power of attorney/agent. The provider claimed immunity, but the Court of Appeals and Supreme Court rejected the immunity. In short, the Court held that the provider is not entitled to immunity if they do not even attempt to communicate with the healthcare agent under the plain language of the statute and the purpose of the statute, which is to provide patient autonomy. Please click here for more information on the Health Law and Regulation Update Blog.

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.

Recent blog posting by Eric Frisch. Headline on Yahoo! News last night (unrelated to Donald Trump) was “Medical error – the third leading cause of death in the US.” The article focused on a newly published article in the British Medical Journal, Makary MA, 2016:353:i2139 with the same title. Actually reading the article is much more enlightening than the headline. Contrary to the headline, the ultimate premise of the article is that the United States needs to adopt a uniform method of reporting deaths so that science can develop a true estimate of the number of “preventable” idiopathic (i.e., related to medical care) deaths. In fact, the authors admit that their headline is an estimate that needs “greater attention.” The article starts off by defining “medical error” as “an unintended act (either of omission or commission) or one that does not achieve its intended outcome, the failure of a planned action to be completed as intended (an error of execution), the use of a wrong plan to achieve an aim (an error of planning), or a deviation from the process of care that may or may not cause harm to the patient.” This appears to be significantly broader than the definition of professional malpractice or medical negligence under the laws of most states. The authors then point out the obvious: death certificates provide inadequate information to use as a reliable source for determining whether a death is or is not related to a preventable medical error. Notably, the authors are sharp to alert readers that death certificates may not be completed by a medical professional of any kind and could include laypeople, such as funeral directors. The authors devoted a significant amount of time to parsing through the myriad of “studies” published since the 1999 Institute of Medicine report, To Err is Human. The take-home message is that each of the studies involved a significant amount of statistical extrapolation. It is beyond the scope of this post to dive into whether the methodology of those studies was flawed. The ultimate take-home message, buried in the middle of the article, is “deaths caused by errors are unmeasured.” The authors offer some useful suggestions to collect quality data so that a true estimate can be performed. Until then, the headline is likely to prevail. Please click here for more information on the Health Law & Regulation Update blog.

Recent blog posting by Eric Frisch. The Tennessee legislature recently amended that state’s data breach notification statute. Tennessee now requires information holders to disclose any security or data breach to Tennessee residents “immediately, but no later than fourteen (14) days from the discovery or notification of the breach.” There is an exception if more time is needed for a legitimate law enforcement reason. Also, the Tennessee legislature changed the rule regarding disclosure of access to encrypted data as well as unencrypted data. Finally, the legislature broadened the definition of “unauthorized user” to include employees of the information holder. The Governor signed the bill and the law becomes effective July 1, 2016. Please click here for more information on the Cyber Liability blog.

This is a recent blog posting by Eric Frisch. The Federal Bureau of Investigation is warning all businesses about the risks of “ransomware.” Ransomware is malware – a malicious program embedded inside of a message or web page. The message may come in the form of an innocuous message directed towards a specific person in the organization, such as a controller, accountant, or risk manager. The message typically includes an attachment, like document (.pdf), text file (.txt), or spreadsheet (.xls) that appears legitimate, such as a bill or a letter. Alternatively, the message may direct the user to a website that appears valid. When the user opens the attachment or goes to the website, the malicious program encrypts – that is, hides – files and folders containing the user’s information and data. The person or organization who sent the message then contacts the user and demands a ransom – money for the return of the information and data. There has been an increase in the number of ransomware attacks. The FBI does not advocate paying a ransom for the return of data. The FBI has set up a Cyber Task Force to assist in the event of a ransomware attack (www.fbi.gov/contact-us/field). The FBI recommends employee training, keeping all operating systems, software, and antivirus/malware protection systems up to date, and maintaining robust file access privileges across an organization. If a health care provider, covered entity, or business associate is hit with a ransomware attack, there may be additional reporting requirements under HIPAA, depending on the circumstances. Remember, many insurance policies provide data breach services that include assistance with reporting and remediation. Please click here for more information on Carlock, Copeland & Stair's Health Law & Regulation Update blog. Please click here for more information on Carlock, Copeland & Stair's Cyber Liability blog.

This is a recent blog posting by Eric Frisch. The Senate is considering legislation to overhaul Medicare audits. As discussed in this article, the frequency and complexity of Medicare recovery and overpayment audits have increased since CMS started the outsourcing program several years ago. The proposed legislation, entitled the Audit & Appeals Fairness, Integrity, and Reforms in Medicare Act of 2015 (AFIRM) (S.2368), would increase CMS oversight of the audit contractors, decreasing the review times for certain bills down to six months, and establish an ombudsman for appeals, among other things. Please click here for more information on Carlock, Copeland & Stair's Health Law & Regulation Update blog.  

Recent blog posting by Eric Frisch. Home Depot settled a class action lawsuit based on a massive data breach involving private information of up to 56 million people who used the self-check kiosks at the company stores. According to published reports, Home Depot is paying $13 million in damages, including out of pocket expenses and substantiated losses up to $10,000 per claimant. In addition, Home Depot will pay qualified claimants up to $75 for time spent remedying any identity theft issues. Home Depot agreed to remediate with new security measures. Lastly, Home Depot agreed to pay the lawyers involved in the multi-district litigation nearly $8.5 million in legal fees and $300,000 in expenses. The settlement is unique in that it included compensation for time spent by the claimants to undo the damage. Please click here for more information on Carlock, Copeland & Stair's Cyber Liability Blog.

Recent blog posting by Eric Frisch. The Georgia Court of Appeals has reversed a defense verdict and ordered a new trial because the trial court improperly excluded the relevant testimony of a witness who was not disclosed in discovery. Plaintiff suffered post-operative paralysis following back surgery. Plaintiff sued the surgeon and his group, identifying one expert witness on standard of care and causation. Plaintiff alleged the doctor delayed diagnosing and treating post-operative leg weakness, which progressed to paralysis. Later surgery revealed the presence of abscesses. An electronic record entry by the doctor indicated that he was aware Plaintiff was unable to move his legs. However, other evidence showed that the same doctor was in another procedure at the time of the electronic record entry. The causation theory pivoted around whether the doctor knew of Plaintiff’s paralysis at the time of this electronic record entry. The parties conducted “extensive discovery,” apparently under a scheduling order. The parties also submitted a consolidated pretrial order. During the case-in-chief, Plaintiff called the defendant physician and asked one question: whether the doctor was at the bedside at the time of the electronic record entry. The doctor denied that he was and that he only learned of the paralysis later, at a time when it was too late to change the outcome. Plaintiff then called an eyewitness nurse to testify that she was with the doctor at the bedside at the time of the electronic record entry. The defense objected on the grounds that the witness was not identified in discovery responses or listed as a witness in the pretrial order. Plaintiff suggested the trial court let the defense depose the witness before she testified. The trial court excluded the witness. The Court of Appeals reversed, holding that the only proper remedies were a continuance or a mistrial. The Court recognized that a retrial would create a “significant burden” but that it must remain “steadfast” in its commitment to a “fair and impartial jury trial.” The Court concluded the trial court abused its discretion. Notably, the opinion does not make it clear whether the identity of this nurse was known to the defense or whether even the identity was truly a surprise. Nonetheless, the Court of Appeals’ decision is consistent with its precedent, including Hart v. Northside Hospital, 291 Ga.App. 208 (2008). The take-home message is to ask for a mistrial or a continuance when there is a surprise witness. The case is Elliott v. Resurgens, P.C., ___ S.E.2d ___ (March 4, 2016). Please click here for more information on Carlock, Copeland & Stair's Health Law & Regulation Update blog.

This is a recent blog posting by Eric Frisch. The Georgia Court of Appeals recently held that a nursing home could not compel arbitration of a wrongful death claim. The decedent was a resident of a long term care facility. On admission, her daughter signed an arbitration provision as power of attorney for the decedent. The provision specifically included a wrongful death claim. After her death, decedent’s husband and daughter (as power of attorney) sued for medical malpractice, wrongful death, and violation of the Patient’s Bill of Rights. The trial court stayed the case and compelled arbitration. The Court of Appeals reversed as to the wrongful death claim. In so doing, the Court held that the holders of the wrongful death claim – the survivors – did not consent to arbitration and, conversely, the daughter as power of attorney for the decedent had no authority to bind the survivors. Thus, while the medical malpractice and statutory claims were barred by the arbitration provision, the wrongful death claim was not. This case could have far reaching implications for health care arbitration claims in Georgia. In particular, claims could be split between those subject to arbitration and those that are not, creating a potential “whipsaw” with inconsistent rulings and outcomes for the same alleged acts or omissions. The case is Norton v. United Health Services of Georgia, Inc., ___ S.E.2d ___ (March 2, 2016). Please click here for more information on Carlock, Copeland & Stair's Health Law & Regulation Update blog.

On January 13, 2016, an administrative law judge ordered physical therapy provider Lincare, Inc. to pay a civil monetary penalty of $239,800 for violating the Privacy Rule. The Office of Civil Rights claimed that a Lincare therapist put patient records and an emergency procedures manual containing private health information in her car. In general, given the nature of Lincare's outpatient practice, this was not a problem. However, the therapist separated from her spouse and left the PHI in her car. Her estranged husband had access to the car. The husband reported that he had opened the car and found the PHI. Neither the therapist nor Lincare took any remedial measures. The Office of Civil Rights brought an enforcement action and Lincare opposed. On cross-motions for summary judgment, the ALJ ruled that Lincare had violated the Privacy Rule and failed to respond and remediate. Please click here for the link to the ALJ ruling. For all dealing with private health information, this case is an important reminder that even permissible uses of PHI can become Privacy Rule violations without comprehensive policies and procedures and a robust response mechanism. Visit our web page for more information about how we can help you. For more information on Carlock Copeland & Stair's Health Law & Regulation Update Blog, please click here.

A coalition of governors is proposing to draft protocols regarding opioid prescriptions and pain management. One of the treatment guidelines may include a limit on the number of prescriptions. The American Medical Association responded by raising concerns about government intrusion into the practice of medicine and, in particular, the tricky practice of pain management. In 2012, the Georgia Composite Medical Board issued Rule 360-3-.03 regarding the practice of pain management to augment existing controlled substance rules. Notably, Rule 360-3-.03 does not contain any specific prescription limits. For more information on Carlock Copeland & Stair's Health Law & Regulation Update blog, please click here.  

Eric Frisch wrote an article entitled, Obstetric Violence and Modern American Medical Jurisprudence for the Law Journal Newsletters. To read the complete article, please click here. Reprinted with permission from Law Journal Newsletters - Medical Malpractice Law & Strategy. © 2015 ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.  

Eric Frisch posted information regarding Medicare audits to the Carlock Copeland Health Law and Regulation Update Blog. To read the entire blog posting, please click here. The Senate is considering legislation to overhaul Medicare audits. The frequency and complexity of Medicare recovery and overpayment audits have increased since CMS started the outsourcing program several years ago. The proposed legislation, entitled the Audit & Appeals Fairness, Integrity, and Reforms in Medicare Act of 2015 (AFIRM) (S.2368), would increase CMS oversight of the audit contractors, decreasing the review times for certain bills down to six months, and establish an ombudsman for appeals, among other things.

Eric Frisch will present at ACI’s 15th Annual Advanced Forum on Obstetric Malpractice Claims.  The conference will be held at the Union League in Philadelphia, PA on June 21-22, 2016.

Partner Eric Frisch spoke about current proposed medical legislation in Georgia at the winter meeting of the Georgia Society of Healthcare Risk Managers.

Eric Frisch served on the Electronic Medical Records, Patient Portals and Audit Trails: The Benefits and Risks of a Paperless System, and Overcoming the Challenges of Implementing an Electronic Platform panel at the American Conference Institute’s National Advanced Forum on Medical Professional Liability held October 30 – 31, 2014 in New York. The Conference offered 14 hours of CE covering a variety of topics. Electronic Medical Records, Patient Portals and Audit Trails covered:

• Assessing the benefits and risks of utilizing electronic health records and patient portals
• Overcoming the inherent challenges of integrating the electronic health record (EHR) into medical practices
• The increased medical malpractice risks associated with Health Information Exchanges
• Recent rise in e-prescribing: benefits and associated exposure risks; best practices for mitigating such risks
• Risks associated with electronic drug-drug interaction lists and “alert fatigue”
• What does the recent “Model Policy” released by the Federation of State Medical Boards say regarding such electronic/virtual practices
• Providing assurance of the integrity of the electronic record and the associated raw data
• How to train users and the risks involved
• Cloning records and the retroactive manipulation of electronic records
• Implementing enhanced documentation tools to capture relevant information in the electronic record

Eric Frisch presented "Update on Medico-Legal Issues – Current Trends with Electronic Medical Records and Data" at the quarterly meeting of the organized medical staff of a metro-Atlanta hospital.  The presentation addressed an audience of both private and hospital physicians.

Eric Frisch presented "Electronic Medical Records, Patient Portals and Audit Trails" at the Annual Educational Meeting of the Georgia Society of Healthcare Risk Management.

This course educated attendees regarding the nature of various cyber liability claims and recent efforts to find coverage for those claims under Commercial General Liability policies and other insurance instruments. The course also explored other potential avenues for coverage for cyber claims and suggestions for insurance professionals facing efforts by plaintiffs’ attorneys to engineer coverage under policies where coverage is usually not found. This presentation was given by Eric Frisch and David Root at the Firm's Insurance Coverage and Bad Faith Seminar.

This article, "Why Is It So Hard to Find Quality Medical Malpractice Verdict Data? A Call for Meta-Analysis" was written by Eric Frisch for the August 2014 issue of the ALM Law Journal Newsletter, Medical Malpractice and Law Strategy. Medical malpractice practitioners on all sides are familiar with the theories and arguments for and against "tort reform." The basic premise in support of tort reform is that high verdicts in medical malpractice cases lead to defensive medicine, an outflow of qualified providers from the market, and increased insurance costs passed on to consumers. The opposition counters that insurance costs are increased because of investment decisions; that there is no real "crisis;" that reform is a euphemism for denying a right to a jury trial; and that the real incidence of malpractice is under-reported and under-compensated. Read more

Attorney Eric Frisch recently gave a presentation on health care risk management to a group of OB/GYN professionals.

Partner Eric Frisch presented at the 29th Annual Medical Malpractice Liability Institute on November 7-9, 2013 in Amelia Island. For the third year, Eric presented on the topic of current Georgia law concerning apportionment of liability in medical malpractice and healthcare organization litigation. The Annual Medical Malpractice Liability Institute is a yearly seminar that draws the premier healthcare litigation attorneys from around the Southeast.

Eric Frisch attended the Georgia Society of Healthcare Risk Management fall meeting. He presented on the current state of Georgia law for physicians, physician practice groups, hospitals, and other healthcare entities.

Healthcare practice group partner Eric Frisch spoke on “Apportionment – Case Law Update” at the 28th annual Medical Malpractice Law Institute seminar at Amelia Island.

"Apportionment of Damages: What We Know and What Remains Unsettled." Eric J. Frisch. Reprinted with permission from the Georgia Bar Journal, Volume 18, Number 1, August 2012. Copyright State Bar of Georgia. Statements expressed within this article should not be considered endorsements of products or procedures by the State Bar of Georgia.

Partner Eric Frisch presented on EMRs and liability at the Pediatrics by the Sea & Pediatric Coding Conference hosted by the Georgia Chapter of American Academy of Pediatrics on June 13, 2012 at the Ritz Carlton in Amelia Island, GA.

"At the Crossroads: HIPAA, the Privacy Rule, and Informal Discovery in Georgia." Eric J. Frisch and Douglas W. Smith. Georgia Defense Lawyers Association Law Journal. May 21, 2012.

Healthcare practice group Partner Eric Frisch spoke on minimizing risks and avoiding malpractice claims at the annual meeting of the Georgia Society of Plastic Surgeons on December 17, 2011 at the Grand Hyatt Buckhead Hotel in Atlanta, GA.

Healthcare practice group partner Eric Frisch spoke on apportionment of damages at the 27th annual Medical Malpractice Law Institute seminar at Amelia Island.

"Tying the Case Together with a Good Theme." Eric J. Frisch. DRI Online Newsletter, The Voice. Volume 9, Issue 1. January 6, 2010.

"Defending the Catastrophic Clear Liability Surgical Case." Eric J. Frisch. 25th Annual Medical Malpractice Institute. November 7, 2009 (Amelia Island, FL).

"Excluding the Late-Identified Expert Witness." Eric J. Frisch. DRI Online Newsletter. April 22, 2009.

Eric Frisch spoke at a Georgia continuing legal education course on the Admissibility of Expert Testimony in Georgia. Mr. Frisch addressed the application of Georgia's statutes governing the qualifications of expert witnesses, the "Daubert" standards, and the emergency room standard of care in medical malpractice cases.