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Court of Appeals Affirms Trial Court’s Denial to Add Treating P.A. and Reverses Summary Judgment – Health Law and Regulation Update Blog Post by Jasmyn Jackson

July 6, 2021

Health Law and Regulation Update Blog Post by Jasmyn Jackson.

The Georgia Court of Appeals affirmed the trial court’s decision to deny Plaintiff’s motion to add the treating physician assistant as a Defendant. The Court further reversed the trial court’s grant of Defendant’s Motion for summary judgment based on standard of care and causation.

Plaintiff presented to the first hospital on October 11, 2014 with complaints of acute lower right leg pain. She reported the pain as a nine out of ten. After evaluation, the physician assistant prescribed pain medication and discharged Plaintiff. Defendant was not present during the physician assistant’s treatment, but later reviewed and signed the Plaintiff’s chart. On October 14, 2014, Plaintiff presented to a second hospital with swelling and discoloration in her right foot and worsening foot pain. After diagnosis, she underwent an open tibial thrombectomy that day. Ten days after the thrombectomy, Plaintiff again presented to the first hospital with a “cool to the touch,” discolored right foot. Plaintiff’s foot was ultimately partially amputated in December 2014. Plaintiff filed her lawsuit in June of 2016 alleging a failure to diagnose a serious arterial dysfunction. Plaintiff introduced experts who opined this failure to diagnose was a violation of the standard of care.

On October 7, 2016, Plaintiff filed a second amended complaint naming the physician assistant as a Defendant. Plaintiff did not file a motion to add a defendant and she did not move for leave to add a defendant. Additionally, Plaintiff failed to serve the physician assistant before the statute of limitations ended on October 11, 2016. The physician assistant entered a Special Appearance and filed a Motion to Dismiss. The Court affirmed the trial court’s denial of Plaintiff’s motion to add Defendant and granted the physician assistant’s motion to dismiss. The Court held the physician assistant did not receive notice of the action prior to the statute of limitations and the physician assistant did not know and had no way of knowing that she would be a defendant in the case.

The Defendant then moved for summary judgment arguing Plaintiff failed to produce evidence that Defendant violated the standard of care or that Defendant’s alleged negligence was the cause of Plaintiff’s damages. The Court held the trial Court erred in granting Defendant’s summary judgment on standard of care because there was still a question as to whether Plaintiff was in fact stable and able to receive treatment as a nonemergency patient. The Court further held, based on the conflicting affidavits and testimony, a fact dispute remained as to whether a delay in treatment caused a misdiagnosis.

Take-home: At the very least, a potential defendant must know of the lawsuit prior to the statute of limitations running. However, it is imperative to always motion the court to add a Defendant and motion the court for leave to add that Defendant, when necessary. With respect to standard of care, whether a patient was non-emergent is based on the condition of the patient. It is the condition of the patient that controls, not the opinion of the physician. Seemingly, the condition of the patient is almost always a jury question. Lastly, on causation, a jury question will remain if there are conflicting affidavits and testimonies as to whether the process and methods of treatment were the cause of the underlying harm.

Connie v. Garnett, 2021 WL 2548834.