Michael P. DiOrio
Partner / Atlanta
Michael is a partner in our Atlanta office. He is a member of the general liability and healthcare litigation groups. A native of Providence, R.I., Michael received his undergraduate degree in Human & Organizational Development from Vanderbilt University, graduating cum laude. He received his law degree from The Catholic University of America, Columbus School of Law where he was a member of Moot Court and the National Trial Advocacy Team. While in law school, he interned with the local legal aid clinic and with the U.S. Navy JAG Corps in Newport, R.I. After law school, Michael practiced as a criminal prosecutor for 6 years with the Gwinnett Solicitor General’s Office and the District Attorney’s Office. Michael has tried more than 50 first chair jury trials, and has written and argued dozens of motions and appeals. Michael resides in Atlanta with his wife, Morgan and his daughter, Virginia Dare.
Rolfe Martin and Mike DiOrio Obtain Defense Verdicts in Medical Malpractice Case
August 2, 2019
Congratulations to our partners, Rolfe Martin and Mike DiOrio, for a defense verdict in the State Court of Cobb County. Plaintiff alleged that a nurse practitioner and supervising physician failed to diagnose and treat timely a testicular torsion. The team obtained a directed verdict for the physician and after deliberating for 45 minutes, the jury returned with a defense verdict for the nurse practitioner and practice.
For informational purposes only. Past success does not indicate the likelihood of success in future cases.
Wade Copeland and Michael DiOrio Obtain Defense Verdict in Medical Malpractice Case
June 4, 2019
On May 28 the jury returned a defense verdict for a surgeon and his employer, the Habersham Medical Center, after an eight day medical malpractice case in Habersham County. The defendants were represented by Wade Copeland and Mike DiOrio of Carlock, Copeland and Stair. The defendant surgeon had performed an excision and drainage of an inflamed cyst behind the shoulder of a 48 year old man. The cyst was excised 19 days later. Within two days of the excision, the plaintiff developed toxic shock syndrome which caused gangrene requiring the amputation of both legs below the knees. The plaintiff claimed over a million dollars in past and future medical expenses and lost wages. Each side presented four expert witnesses. One of the plaintiffs’ experts is the head of Infectious Disease at Johns Hopkins in Baltimore. In closing, the plaintiffs asked the jury for $12 million dollars. The jury returned a verdict in favor of the defendants after one hour of deliberation.
For informational purposes only. Past success does not indicate the likelihood of success in future cases.
Michael DiOrio, Eric Frisch and Rolfe Martin Attended the 35th Annual Medical Malpractice Liability Institute in Amelia Island, FL – November 7-9, 2019
November 7, 2019
Atlanta partners Michael DiOrio, Eric Frisch and Rolfe Martin attended the State Bar of Georgia's 35th Annual Medical Malpractice Liability Institute in Amelia Island, FL. This conference offered various opportunities to network with and learn from peers in medical malpractice litigation. Additionally, physicians and medical professionals from around the country shared their insight and perspective with attendees. For more information on this Institute or the State Bar of Georgia, please click here.
Eric Frisch and Michael DiOrio Attended the 32nd Annual Medical Malpractice Liability Seminar – Amelia Island, FL – November 3-5
November 3, 2016
Carlock Copeland Announces Attorneys Elevated to Partner
January 1, 2019
Carlock, Copeland & Stair is pleased to announce eight attorneys, across three offices have been elevated to partner effective January 1, 2019. We congratulate each of them for this achievement and couldn’t be prouder of the manner in which they have distinguished themselves, both in the courtroom and within the community.
“The class size, location, and diversity of this year’s new partner group demonstrates the emerging talent CCS has worked hard to cultivate throughout the Firm. We are proud to support and elevate the attorneys helping us grow and transition the Firm in the future.”
~Managing Partner, Shannon Sprinkle ~Stephen J. Cohen, of our Atlanta office, received his J.D. from Atlanta’s John Marshall Law School, his M.P.A. from the University of Georgia and his B.A. from the University of Nevada, Las Vegas. Prior to practicing law, Steve was a police officer, and then a claims adjuster at a commercial automobile insurer. Both professions afforded him invaluable experience and a unique perspective in his thriving trucking and transportation litigation practice with Carlock Copeland. Alexander E. (Alex) Davis, of Carlock Copeland’s Charleston office, earned his J.D. at the University of South Carolina School of Law and his undergraduate degree from Wake Forest University. Alex has vast experience in complex insurance coverage disputes, construction defects claims and regularly represents clients in a variety of business and commercial tort claims. Alex is accomplished author, having been published in several national and regional magazines and is a participant of SCDTAA’s Emerging Leaders Program. Michael P. (Mike) DiOrio earned his law degree at The Catholic University of America, Columbus Law School, where he was a Moot Court member, and his undergraduate degree from Vanderbilt University. Prior to joining Carlock Copeland, Mike practiced as a criminal prosecutor in a metro Atlanta area District Attorney’s Office. Mike’s practice is focused primarily on medical malpractice defense and general liability litigation out of our Atlanta office. He has been first chair in over 50 jury trials. Mike volunteers his time with several worthy organizations, including serving as a past co-chair of Slyland Trail’s Annual Southern Shindig event. He lives in Atlanta with his wife, Morgan, and daughter, Virginia Dare. Abby C. Grozine earned her B.A. in Political Science from the University of Georgia and her J.D. from Mississippi College of Law with honors. Abby focuses her practice in the area of commercial litigation, general liability defense and trucking and transportation litigation, from our Atlanta office. Prior to joining Carlock Copeland, Abby served as a Staff Attorney for the U.S. Court of Appeals for the 11th District where she gained valuable research, writing and analytical skills used today in her expanding litigation practice. Jennifer Guerra, in the Atlanta office of Carlock Copeland, focuses her practice on commercial litigation, representing clients in professional liability claims, product liability claims and bad faith/coverage disputes. Jennifer attended the University of North Carolina at Chapel Hill, where she received her B.A. with honors, and then the University of Pennsylvania Law School for her J.D. Prior to practicing in the civil arena, Jennifer clerked with the State Court of DeKalb County where she learned the ropes of complex tort and multi-party litigation. Angela Cirina Kopet opened Carlock Copeland’s Chattanooga, TN office in 2014 and has managed the office since its inception. Angela practices primarily general liability, transportation and insurance coverage litigation, and is licensed in Georgia, Tennessee and Washington D.C. She is heavily involved with the Claims and Litigation Management Alliance (CLM), serving on several committees, the Educational Task Force, and was named The CLM Professional of the Year in the Outside Counsel Category in 2017. She was appointed to the Executive Council for the School of Leadership and remains a faculty member in the School of Casualty within CLM’s Claims College. Angela is Martindale –Hubbell AV Preeminent rated, awarded Top 100 Litigation lawyer in the State of Tennessee, and honored with a Senior Fellowship in the Litigation Counsel of America, a Trial Lawyer Honorary Society where she was inducted into the Order of Juris and Order of Certus for her trial and appellate work. Angela earned her B.A. from Fairfield University, her M.B.A. from Widener University and her J.D. from Delaware Law School. Claire A. Sumner, in our Atlanta office, focuses her practice in health care and general liability defense litigation. Claire has a number of trials under her belt, in both state and federal court, and has appellate experience as well. Claire attended the University of North Carolina at Chapel Hill, where she earned her undergraduate degree in English and religious studies. She received her J.D. with honors from the University of Tennessee College of Law, where she interned at the U.S. Sixth Circuit Court of Appeals. Kristen K. Thompson, in Carlock Copeland’s Charleston office, started her career with the firm in 2012 upon graduating law school. Kristen focuses her practice primarily in medical malpractice and general liability litigation and has impressive experience developing litigation strategies and writing persuasive briefs and motions in defense of her clients. Kristen is the current Vice President of the Susan G. Komen Lowcountry Affiliate's Board of Directors and a former Roper St. Francis Foundation Fellow.
Publications and Presentations
Federal Judge Rules Public Interest Outweighs Minor’s Privacy Interest in Confidential Settlement – Health Law and Regulagation Update Blog Post by Mike DiOrio
January 7, 2019
Health Law and Regulation Update Blog Post by Mike DiOrio. A recent decision by a Federal District Court Judge involving the settlement details of a minor’s medical malpractice case sheds light on how the plaintiff’s age can derail a plan even when all parties agree. Defendants, especially medical providers, often ask for confidentiality as a term of a settlement agreement, if reached. There are many reasons that an individual provider, practice or hospital would not want a settlement amount or the settlement itself to be public knowledge. It goes without saying that if you are sued for what you do professionally, you don’t want the community knowing that you settled a claim, regardless of the reasoning behind the decision to do so or the strength of the claim itself. There are also scenarios where the plaintiff does not want the settlement to be made public. A common scenario is when a plaintiff sues multiple parties and, for whatever reason, settles with one but not all of the defendants. At this point, the remaining defendants typically want to know all the terms of the confidential and negotiated settlement agreement. Can either the amount or other terms be used as leverage in negotiations or for the defense at trial? Understandably, the plaintiff does not want or often cannot share these terms. In the case of a claim brought on behalf of a minor, however, things can get tricky. Minor settlements require court approval, and often the appointment of a conservator. See O.C.G.A. § 29-3-3. It is meant to protect the interests of the child. The submission of the settlement agreement and its terms to the court, however, makes those documents public record unless the court seals them. The court may seal the documents if the interests of the child outweigh the public’s inherent interest the same, and the presumption of public access. Typically, this means there is information about the minor which is private in nature and may cause the child harm if the public were to know – such as, the extent of the injuries or other personal health information. But what if the parties decide that the entire agreement (not just the amount) should be confidential? In Willis v. United States of America, a trial court recently dealt with a negotiated settlement of a minor that needed approval, but where confidentiality was a key component of the agreement. The plaintiff brought a medical malpractice case against the US government, a doctor, a hospital, and a medical practice. The unique nature of the suing the government meant that the settlement was not a universal one involving all the defendants at the same time. The plaintiff and the non-government defendants brought their settlement before the court for approval and seal. The parties noted that the remaining defendant did not object. The problem that the parties faced was that the only reasoning provided to the court as for the basis that the settlement terms be sealed, was that confidentiality was an express term. The court denied the settlement agreement as negotiated. It found the argument that the confidentiality clause, although a key factor in the agreement, did not outweigh the public’s right to access court information. Furthermore, the court stated that the amount of the settlement alone did not warrant any redaction or sealing of records. The court found that the settlement agreement contained no additional private or sensitive information of the minor child that was not already public record, and that no party had sought to seal those documents prior to submitting the settlement for approval. The court’s order offered a take it or leave it option. The parties could withdraw the settlement and continue with litigation if confidentiality was truly a non-starter, or, they could settle the case without the confidentiality clause and make it public record. The case is pending at this time. Take home – when a minor is involved, it does not necessarily matter what the parties have negotiated, especially when weighing the public’s right to access information. While there are some courts that as a matter of course agree to seal settlements involving a minor, it is not always the case. The reasoning behind the ruling may lay the foundation for access to a settlement agreement of a former defendant or third party in discovery, which is typically objected to and often denied when pursued via a motion to compel. Case is currently pending in the Southern District of Georgia – August Division; CV117-015 For more information or to subscribe to our Health Law and Regulation Update Blog, please click here.
The Rising Opioid Crisis: Liability, Coverage, and the Ethics In Between – Presentation at Carlock Copeland’s Annual Insurance Coverage Seminar
August 23, 2018
The Rising Opioid Crisis: Liability, Coverage, and the Ethics In, the interesting cross-over closing session of Carlock Copeland's Annual Insurance Coverage Seminar examines the origins of and the potential expanse of litigation arising out of the opioid crises; but, this session also addresses the multitude of coverage issues beginning to arise and the ethical dilemmas created by potential conflicts created by the crisis – including issues related to privacy concerns. Presenters/Co-Authors: David Root, Claire Sumner, Mike DiOrio, and Bradley Wood. For more information on this presentation, please contact Michelle Mattox at firstname.lastname@example.org.
Georgia Supreme Court Rules Trial Court May Exclude Intentionally Withheld Surprise Witness – Recent Health Law and Regulation Blog Post by Michael DiOrio
June 6, 2017
Health Law and Regulation Update Blog post by Michael DiOrio. The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Resurgens, P.C. et al. v. Elliott, decided May 30, 2017, and determined that the trial court did not abuse its discretion when it excluded a rebuttal witness, as a discovery sanction, whose name was deliberately withheld during discovery. Plaintiff was a patient of the Defendants, and filed suit in 2011 claiming that the Defendants failed to timely diagnose and treat an abscess in his thoracic spinal cord which resulted in paralysis. Following four years of discovery, the case went to trial and resulted in a defense verdict. The Plaintiff filed a direct appeal which challenged the trial court’s exclusion of a rebuttal witness in the case. At trial, a Defendant, who was the treating physician, was asked by the Plaintiff’s attorney whether the Defendant was at the bedside of the Plaintiff at a particular time. The Defendant denied being present. The Plaintiff then excused the Defendant, and called a rebuttal witness who was a nurse that would purportedly testify that the Defendant was in fact bedside. Defendant’s counsel objected, based on the fact that the witness had not been previously disclosed in discovery, the pretrial order, or in any communication between counsel. Plaintiff counsel argued that this particular witness fell within its interrogatory response “catch-all,” that she was a “treating medical provider…a person named in the medical records…and an impeachment witness.” Therefore, while she was not specifically named, she was referenced. Furthermore, if the discovery response was not clear enough, the onus was on the defense to request clarity or move the Court to compel a different response. The trial court ruled in favor of the Defendants, stating that the Plaintiff had determined to call the nurse as a witness before trial and intentionally withheld the witness’s name. As such, the Defendants were entitled to the discovery sanction of excluding the witness in order to “allow the trial to proceed without surprise, without ambush.” The Plaintiff appealed to the Georgia Court of Appeals who reversed the trial court. The Court of Appeals stated that in the event a previously undisclosed witness is called to testify, the only remedy is to move for a postponement for a sufficient length of time to allow the objecting party to prepare, or to move for a mistrial. The Court of Appeals further stated that it is never appropriate for a trial court to exclude such a witness, even in cases where there was clear deception. The exclusion of a witness with probative value was an extreme response, and the discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) are not available. The Defendants applied for certiorari to the Supreme Court of Georgia who granted review. The Supreme Court reversed the Court of Appeals. The Court held that when a party provides false or deliberately misleading discovery responses, the aggrieved party is entitled to more than mere postponement or mistrial. The aggrieved party is entitled to discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) which includes, among others, exclusion of a witness. The Court explained that a party who receives a substantive answer to a discovery request is entitled to believe that answer, and are not required to file blind motions to compel in hope of discovering the opposing party’s deception. Furthermore, false or intentionally misleading responses are worse than a failure respond, because the aggrieved party may never learn that it failed to receive the truth. Therefore, the aggrieved party should be entitled to discovery sanctions, including exclusion of the undisclosed witness. To allow otherwise, simply because the witness may offer some probative value, would encourage and reward deceptive behavior. The take-home is that parties who face deceptive tactics by opposing counsel during trial are no longer confronted with the only options being a continuance or a mistrial, which are burdensome and expensive. There are now a severe repercussions for those attorneys who intentionally deceive opposing parties during discovery. Further take-home is found in footnote 10 of the opinion, where the Supreme Court stated “[we] caution the bench and bar against relying on such “catch-all” categories in this manner; candor and cooperation, as opposed to “gotcha” moments and gamesmanship, should be encouraged between litigating parties.” What is clear now for plaintiff and defense counsel in Georgia is that routine discovery responses such as, “any medical provider named in the medical records,” may no longer be sufficient once trial has begun. Parties should take the time to list the individual names of potential witnesses and other evidence well before trial or risk their exclusion. For more information on our Health Law and Regulation Update Blog, or to subscribe click here.
Georgia Supreme Court Reverses $3.7 Million Verdict on Foreseeability Grounds – Blog Posting by Michael DiOrio
March 2, 2017
Blog Posting by Michael DiOrio. The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Goldstein Garber & Salama v. J.B., decided February 27, 2017, and determined that the Defendant was entitled to a directed verdict at trial. Plaintiff was one of a number of patients who were sexually assaulted while sedated by a certified registered nurse anesthetist (CRNA) who worked at the Defendant’s dental practice as an independent contractor. The acts of the CRNA were captured on his cell phone which was later discovered hidden in the practice’s employee restroom. Prior to the discovery, the practice was unaware of the CRNA’s actions. Plaintiff filed suit against the CRNA and the dental practice. Plaintiff later dismissed the CRNA when he pled guilty to criminal charges and received a life sentence, but the case continued against the dental practice. Plaintiff claimed that the Defendant was negligent in its supervision of the CRNA, and negligent per se based on O.C.G.A § 43-11-21.1(a) for failing to have required permitting to administer or supervise a CRNA administering general anesthesia. After trial, a jury awarded the Plaintiff $3.4 million and apportioned 100% of the fault to the Defendant. The Court of Appeals affirmed the trial court 4 to 3. After granting certiorari, the Supreme Court determined that the CRNA was an independent and intervening third party wrongdoer responsible for the Plaintiff’s injury. In this scenario, the Defendant may only be held liable for the actions of the CRNA if those actions were reasonably foreseeable, and a natural consequence of the Defendant’s failure to properly supervise him. The Court was not persuaded by the Plaintiff’s argument that dentists are generally aware of instances where patients are abused while under anesthesia. In this matter, the Court found that the Defendant had no prior knowledge of the CRNA’s intervening criminal acts, and that those acts were not reasonably foreseeable. Furthermore, sexual assault is not the probable or natural consequence of failing to supervise an otherwise qualified nurse anesthetist. Accordingly, a directed verdict was warranted. The Supreme Court further held that the Court of Appeals erroneously found that sexual assault was a harm contemplated by the statute governing dentists and general anesthesia, O.C.G.A § 43-11-21.1. In order for the Defendant to be found negligent per se for a violation of the statute, the Plaintiff must be considered to be within the class of persons that the statute was designed to protect. Additionally, the harm suffered by the Plaintiff must be one that the statute contemplates guarding against. In its ruling, the Court of Appeals cited a section in the same chapter as the above statute which stated the chapter’s purpose was to guard against unlicensed activities that negatively affect the “public health, safety and welfare,” and therefore would include sexual assault. While the Supreme Court found that the statute applied to patients like the Plaintiff, it did not find that the statute applied to the harm. The Court stated that the statute clearly applies to concerns regarding medical complications which may arise in a dental setting from the improper administration of anesthesia. Because this would not include sexual assault, the trial court should have granted a directed verdict. After ruling in favor of the Defendant, the Supreme Court declined to address whether the Defendant waived any objection to the apportionment of fault. This is not the first time that the acts of this particular CRNA have been the basis of a lawsuit against a medical group. In 2011, Carlock, Copeland & Stair, LLP defended a group of plastic surgeons who had hired the CRNA as an independent contractor to administer anesthesia. A similar video of a patient was discovered and that patient later filed a complaint alleging ordinary and professional negligence. At the motion for summary judgment, Wade Copeland successfully argued that the CRNA’s acts were not reasonably foreseeable and that the surgical practice had no prior knowledge of the acts. The Cobb County trial court’s decision to grant the Defendant’s motion for summary judgment was not appealed. The take-home is that unforeseeable criminal acts, such as sexual assault, committed by an independent contractor may not be imputed to the hiring party without prior knowledge of wrongdoing by that particular actor. Such acts are also not contemplated by statutes designed to regulate health care and medical professionals, and therefore may not be the basis of a negligence per se claim. Please click here for more information on the Health Law and Regulation Update Blog.
Carlock, Copeland and Stair, LLP Welcomes Attorneys To Atlanta and Charleston Offices
August 24, 2016