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Georgia Society for Healthcare Risk Management 2016 Legal UpdatePresented By:Kevin P. Race, Esq.krace@Insley and Race, LLC404-876-9818 Timothy H. Bendin, Esq.tbendin@Bendin, Sumrall & Ladner, LLC404-671-3100404-671-30802016 GSHRM Update on the law ofMedical NegligenceTABLE OF CONTENTSTable of Cases 3Advance Directives 5Apportionment 5Arbitration Agreements 7Assumption of the Risk 8Civil Procedure 8Criminal Acts 10Emergency Care Statute 11Evidence 12Experts… 14Expert Competency 15Intentional/Negligent Infliction of Emotional Distress 17Medical Records 18Medical Record as a Basis for Libel 18Respondeat Superior 20Scope of Discovery 20Statute of Limitations/Statute of Repose 21Trial Procedure 23Waiver 24Witness Disclosure 2409144000002016 GSHRM Update on the law ofMedical NegligenceTABLE OF CASESBd. of Regents of Univ. Sys. of Georgia v. Jordan, 335 Ga. App. 703, 782 S.E.2d 9809 (2016)Blake v. KES, Inc., 336 Ga. App. 43, 783 S.E.2d 432 (2016)15Bowden v. The Med. Ctr., Inc., 297 Ga. 285, 773 S.E.2d 692 (2015)20Brown v. Howard, 334 Ga. App. 182, 778 S.E.2d 810 (2015)19Caldwell v. Evans, 334 Ga. App. 68, 778 S.E.2d 235 (2015)8Carter v. VistaCare, LLC, 335 Ga. App. 616, 782 S.E.2d 678 (2016)14Cheney v. Lawson, 333 Ga. App. 180, 773 S.E.2d 297 (2015), 14reconsideration denied (July 15, 2015), cert. denied (Oct. 19, 2015)Coon v. Med. Ctr., Inc., 335 Ga. App. 278, 780 S.E.2d 118 (2015), 17reconsideration denied (Dec. 15, 2015)Doctors Hosp. of Augusta, LLC v. Alicea, 332 Ga. App. 529, 774 S.E.2d 114 5(2015), cert. granted (Oct. 19, 2015)Dubois v. Brantley, 297 Ga. 575, 775 S.E.2d 512 (2015), 16reconsideration denied (July 27, 2015)Elliott v. Resurgens, P.C., 782 S.E.2d 867 (Ga. Ct. App. 2016), 24reconsideration denied (Mar. 16, 2016)Gerguis v. Statesboro HMA Med. Grp., LLC, 331 Ga. App. 867, 772 S.E.2d 18227 (2015), cert. denied (July 6, 2015)Goldstein, Garber & Salama, LLC v. J.B., 335 Ga. App. 416, 779 S.E.2d 484 10(2015), reconsideration denied (Dec. 16, 2015)Huizhu Yan v. Herlis Associates, LLC, 335 Ga. App. 479, 781 S.E.2d 587 (2016)14Jasarevic v. Foster, 335 Ga. App. 528, 782 S.E.2d 314 (2016)18Jefferson v. Houston Hosps., Inc., No. A15A1811, 2016 WL 1203850 20(Ga. Ct. App. Mar. 29, 2016)Jones v. Covington, No. 1:15-CV-396-WSD, 2015 WL 7721835, at *1 20(N.D. Ga. Nov. 30, 2015)Little-Thomas v. Select Specialty Hosp.-Augusta, Inc., 333 Ga. App. 362, 10773 S.E.2d 480 (2015), reconsideration denied (July 22, 2015), cert. denied (Oct. 19, 2015)Mark v. Agerter, 332 Ga. App. 879, 775 S.E.2d 235 (2015)12Nguyen v. Sw. Emergency Physicians, P.C., 298 Ga. 75, 779 S.E.2d 334 (2015)11Norton v. United Health Servs. of Georgia, Inc., 336 Ga. App. 51, 783 S.E.2d 7437 (2016)Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015)13Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015)23Piedmont Hosp., Inc. v. D.M., 335 Ga. App. 442, 779 S.E.2d 36 (2015), 22reconsideration denied (Dec. 16, 2015), cert. denied (Apr. 26, 2016)Piedmont Newnan Hosp., Inc. v. Barbour, 333 Ga. App. 620, 774 S.E.2d 822 (2015),23reconsideration denied (July 30, 2015), cert. denied (Oct. 19, 2015)Robles v. Yugueros, 335 Ga. App. 324, 779 S.E.2d 139 (2015), 12reconsideration denied (Dec. 15, 2015), cert. granted (Apr. 21, 2016)Ross v. Waters, 332 Ga. App. 623, 774 S.E.2d 195 (2015)9Smith v. Danson, 334 Ga. App. 865, 780 S.E.2d 481 (2015)22Turrell v. McNeel, 333 Ga. App. 611, 774 S.E.2d 274 (2015), 24reconsideration denied (July 30, 2015), cert. denied (Nov. 2, 2015)Walker v. Tensor Mach. Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015)6Watson v. Reg'l First Care, Inc., 335 Ga. App. 740, 782 S.E.2d 822 (2016)8Wong v. Chappell, 333 Ga. App. 422, 773 S.E.2d 496 (2015), 21reconsideration denied (July 27, 2015), cert. denied (Oct. 19, 2015)Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015), 5reconsideration denied (July 27, 2015)Zarate-Martinez v. Echemendia, 332 Ga. App. 381, 772 S.E.2d 826 (2015), 16cert. granted (Sept. 8, 2015)Advance DirectivesDoctors Hosp. of Augusta, LLC v. Alicea, 332 Ga. App. 529, 774 S.E.2d 114 (2015), cert. granted (Oct. 19, 2015)The administrator of a patient’s estate brought medical malpractice action against hospital and physician, alleging that they intubated the patient and placed her on mechanical ventilation, which prolonged her life when she was in a terminal condition and caused her unnecessary pain and suffering, contrary to the patient’s advance directive and the specific directions of her designated health care agent. The hospital and physician moved for summary judgment and contended they were immune from liability under Georgia’s Advanced Directive statute, and they had informed and given basic consent for the intubation. The trial court denied summary judgment.The Court of Appeals upheld the trial court’s denial of summary judgment on immunity under the Advanced Directive statute. Georgia Advanced Directive statute codifies the long recognized right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. The statute’s introductory clause reads that any health care provider who acts in good faith reliance on any direction or decision by the health care agent will be protected. The statute subsections address three specific types of acts by health care providers that further elaborate on the conditions under which immunity can be obtained for violating an agent’s direction or decision. The first subsection addresses instances where health care providers rely on the health care agent’s requests. The next two subsections address instances where the health care providers violate the health care agent’s requests. The Court of Appeals held that grammar of the statute’s introductory section reflects that the requirement of “good faith reliance” on a health care agent’s direction or decision referenced in the introductory clause should apply to the subsections that follow it. Good faith has been defined as a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation. The Court of Appeals held that the question of good faith was for the jury to determine. The Supreme Court accepted cert and an opinion is forthcoming. apportionmentZaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015), reconsideration denied (July 27, 2015)In this Supreme Court case, the Court overturned the Court of Appeals and held that a Plaintiff’s employer can be added as a non-party to the verdict form under a theory of negligent entrustment. In this case, Daniel Prickett sued Emelda Zaldivar to recover money damages for injuries that he allegedly sustained in an automobile accident. The Defendant also pointed a finger at the Plaintiff’s employer, Overhead Door Company, which was not a party to the lawsuit. Prickett was employed by Overhead Door at the time of the collision, and he was driving a truck that Overhead Door had provided to him in connection with his employment. According to the Defendant, Overhead Door was negligent to have entrusted Prickett with a company truck, and for that reason, it too should bear some of the responsibility for any injuries that he sustained.The trial court granted a motion for partial summary judgment agreeing with the Plaintiff and holding that you could not apportion responsibility to the Plaintiff’s employer. In that regard, the Court relied heavily on the case of Ridgeway v. Whisman, 210 GA. App. 169 (1993). The Court of Appeals affirmed that decision. The Supreme Court accepted certiorari to review that decision. The Court held that the Court of Appeals’ decision was incorrect. The Supreme Court decided that negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted. They also decided and disapproved of the Ridgeway decision to the extent that it suggests that negligent entrustment never can be a proximate cause of an injury to the person entrusted, and they reversed the Court of Appeals’ decision. At issue in this case is O.C.G.A. § 51-12-33 (“the apportionment statute”). The case has a lengthy discussion about statutory construction of the various provisions of that statute. The Court held that O.C.G.A. § 51-12-33(c) requires the jury in cases which the statute applies to consider the fault of all persons or entities who contributed to the alleged injury or damages. They indicated that means that all persons or entities who have breached a legal duty in tort that is owed with respect to the Plaintiff can be included. They further held that that not only includes Plaintiff himself and the Defendants with liability to the Plaintiff, but also every other tortfeasor whose commission of a tort as against the Plaintiff was a proximate cause of his injury, regardless of whether such tortfeasor would have actual liability in tort to the Plaintiff. They further noted that an affirmative defense of immunity does not eliminate “fault” or cut off proximate cause, it only bars liability, notwithstanding that the fault of the tortfeasor was a proximate cause of the injury in question. In the case at hand, the Court held that to the extent that the Defendant could prove that Overhead Door breached a legal duty in tort that it owed Prickett, the breach of which was a proximate cause of the injury that the Plaintiff sustained, the trier of fact could be permitted under the apportionment statute to assign fault to Overhead Door. Walker v. Tensor Mach. Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015)The Supreme Court held that a jury may assess a percentage of fault to a non-party employer that has immunity under the worker’s compensation act. Traditionally, under the exclusive remedy provision of the Worker’s Compensation Act, the employer entirely avoids having to defend against tort litigation and remains immune from tort liability regardless of any assignment of fault under the statute directing the trier of fact in certain cases to consider the fault of all persons or entities who contributed to the alleged injury or damages. The Supreme Court noted that it had decided the Zaldivar decision several months earlier and ultimately found there was no reason to treat non-party employers, who have immunity under the Worker’s Compensation Act, any differently than non-parties with other defenses or immunities against liability, such as they found in the Zaldivar decision. In the case at hand, the Plaintiff, Jack Walker, was injured at work while operating a machine that had been designed by the Tensor company. After reaching a settlement with his employer for worker’s compensation benefits, he sued Tensor, alleging that it negligently failed to warn him of safety related defects in the machine. Tensor then gave notice under O.C.G.A. 51-12-33 that it intended to ask the jury to assign responsibility for Walker’s injuries to his employer. Walker filed a Motion in Limine to exclude all evidence concerning fault on the part of his employer asserting that O.C.G.A. § 51-12-33 does not allow a Plaintiff to apportion fault to a non-party employer that has immunity from liability in tort by virtue of the exclusive remedy provision of the Worker’s Compensation Act. The Court noted that other jurisdictions have allowed all tortfeasors to be included on the verdict form in apportionment matters. Further, the Court noted that the statute provides specifically that immunity from liability does not prevent an immune party from acting or omitting to act, rather immunity shields that party from any liability stemming from that act or omission. “There is nothing logically or legally inconsistent about allocating fault but shielding immune parties from liability for that fault.” The Plaintiffs argue that one of the benefits of the Worker’s Compensation statute is under that immunity, an employer would not have to participate in defending the litigation. The Court rebuffs that argument and notes that employers often have to respond to requests for discovery and non-party requests, etc. for a variety of reasons, and that is not a reason to disallow the apportionment of fault under the apportionment statute. Arbitration AgreementsNorton v. United Health Servs. of Georgia, Inc., 336 Ga. App. 51, 783 S.E.2d 437 (2016)Plaintiff brought a claim against several corporate Defendants for the wrongful death of his wife while a patient in the Defendants’ nursing home. At the time of the decedent’s admission to the facility, the decedent’s general power of attorney signed an arbitration agreement, which states that claims subject to arbitration include: any and all claims or controversies arising out of or in any way relating to ... the Patient/Resident's stay at, or the care or services provided by, the Healthcare center, or any acts or omissions in connection with such care or services ... whether sounding in breach of contract, tort, or breach of statutory or regulatory duties. The Defendants therefore filed a motion to compel arbitration based upon the arbitration agreement. However, a wrongful death claim is a claim belonging to the survivors of the decedent for the full value of the life of the decedent. It is not addressed to the injuries suffered by the decedent prior to death, but to the injury suffered by the beneficiaries resulting from the death of the decedent. Thus, a wrongful death action presents a new, distinct, and separate cause of action. Arbitration is a matter of consent, not coercion, and a party can be compelled to arbitrate only upon a showing that he entered into an enforceable agreement to arbitrate. Here, the Court found there was no evidence that the decedent’s wrongful death beneficiaries entered into an agreement to arbitrate their separate, distinct claims. And those claims never “belonged” to the decedent, so neither she nor her power of attorney could bind the beneficiaries to arbitration with regard to their wrongful death claims. As such, although litigation of any tort claims by the decedent’s estate against the Defendants is barred by the arbitration agreement, litigation of the wrongful death claims asserted by her beneficiaries is not so barred. Assumption of the RiskWatson v. Reg'l First Care, Inc., 335 Ga. App. 740, 782 S.E.2d 822 (2016)The Plaintiff passed out while waiting in an examination room in a medical clinic, fell off the exam table he had been sitting on, and was injured. He sued the clinic and the medical assistant who had interviewed him a few minutes earlier, alleging that the medical assistant’s negligence caused his injuries. Because Plaintiff had passed out three times before and was injured on at least one of those occasions, the trial court granted the clinic’s summary judgment motion on the grounds that it had established the affirmative defense of the assumption of the risk, and the Plaintiff appealed. The Court of Appeals affirmed, as the record illustrated the Plaintiff’s subjective awareness of the risk that he could potentially pass out from coughing from the fact that he had sustained injuries from passing out from coughing prior to his fall at the clinic. Additionally, the room where Plaintiff sustained his injuries contained two chairs in which he was free to sit, but he chose not to. Accordingly, the Court held these undisputed facts establish, as a matter of law, that Plaintiff voluntarily and knowingly chose to remain seated upon the table, regardless of any alleged negligence on the part of the medical assistant.Civil ProcedureCaldwell v. Evans, 334 Ga. App. 68, 778 S.E.2d 235 (2015)A patient brought a medical malpractice action against the Defendant doctor, alleging that the doctor negligently failed to diagnose her cancer, and the patient’s husband asserted a claim for loss of consortium. After the patient and her husband died, two of their surviving five children filed a motion to substitute parties and to add additional parties to pursue a wrongful death claim. The trial court granted the motion and the doctor sought interlocutory appeal, arguing the court erred in allowing the Plaintiffs to add only two of the five surviving children of the deceased Plaintiffs, arguing that the wrongful death statute requires all surviving children must be parties to the suit in the absence of a surviving spouse. The Court held the Defendant’s arguments were without merit, as although the current law does not explicitly say that full participation is not required, the language of the statute strongly implies it. Furthermore, because the recovery from the wrongful death action is to be divided equally among the survivors, the Court found the Defendant had no real stake in the question of whether all the children join in the action, as the number of Plaintiffs does not affect the outcome for him. Therefore, because the Defendant lacks standing to complain that fewer than all of the surviving children are named Plaintiffs, and because the trial court did not err in granting the Plaintiffs’ motion to add and substitute parties, the Court of Appeals affirmed.Ross v. Waters, 332 Ga. App. 623, 774 S.E.2d 195 (2015)A Plaintiff sued a physician and clinic after the patient’s hip surgery in DeKalb County where the clinic was located (the physician lived in Fulton County). During the pendency, the physician began active duty military service, so the action was stayed. Two years later the physician returned from active duty, and the stay was lifted. Three months later, nearly at trial, the Plaintiff dismissed her case. That same month, the clinic was administratively dissolved. Six months later, the Plaintiff renewed her law suit. The Defendants moved to dismiss for improper venue and a motion to dismiss because they allege the statute of repose was not tolled under the Servicemembers Civil Relief Act (SCRA). The trial court denied both motions. Suits against joint tortfeasors residing in different counties may be tried in either county. A Georgia corporation resides in the county where its registered office or principal office is maintained, as shown by the records of the Secretary of State. Suits against joint tortfeasors residing in different counties may be tried in the county where the tort occurred, provided the corporation has an office and transacts business in that county. Determining venue must be based upon the facts as they exist when suit is initiated, not as the facts may have existed at some previous point in time. While the cause of action occurred in DeKalb County, when the Plaintiff filed her suit, the clinic no longer had a presence in DeKalb County. The trial court relied on an old statute to determine that venue was proper in DeKalb County, so the Court of Appeals reversed on that ground. The Court of Appeals did not address whether the statute of repose was tolled by the SCRA. Bd. of Regents of Univ. Sys. of Georgia v. Jordan, 335 Ga. App. 703, 782 S.E.2d 809 (2016)The Court of Appeals in this case had to determine where proper venue was when the Plaintiff brought claims against a medical institution owned and operated by the Board of Regents of the University System of Georgia under the Georgia Tort Claims Act. In this matter the parents of Cayleb Drayton brought a lawsuit arising out of care and treatment provided at MCG in Richmond County. The case was filed in DeKalb County because the child received most of his follow up treatment at Children’s Healthcare of Atlanta in DeKalb County.Under the Georgia Tort Claims Act, venue is proper in any county wherein “the loss occurred”. The court notes that the determining factor is not where the alleged negligence occurred, but where the substantial loss occurred. The term “loss” is defined under the Tort Claims Act as: personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence. The Court noted that had the legislature intended to limit venue for claims under the GTCA to the County where the negligent acts or omissions giving rise to the damages occurred, instead of where the loss occurred, it could have done so. As such, the Court held that the DeKalb County venue was proper in this case because a substantial amount of the child’s treatment occurred in DeKalb County. Criminal ActsGoldstein, Garber & Salama, LLC v. J.B., 335 Ga. App. 416, 779 S.E.2d 484 (2015), reconsideration denied (Dec. 16, 2015)A patient brought action against the Defendant dental practice, alleging the practice's negligence resulted in her being sexually assaulted by certified registered nurse anesthetist while she was under anesthesia at dental office. Between a surgical and cosmetic procedure, Plaintiff was left in a heavily sedated state for approximately two hours at the Defendant’s dental practice. At some point during this time, a nurse anesthetist was left alone with Plaintiff and made three video recordings of her, during which he sexually assaulted her. Plaintiff sued the dental practice, asserting, negligence per se and professional negligence. A jury rendered a verdict for $3.7 million, and apportioned 100 percent to the dental practice and none to the nurse anesthetist. The dental practice appealed the Court’s denial of its motion for directed verdict on both the negligence per se and professional negligence claims, as Plaintiff did not prove proximate cause for either cause of action. Specifically, the Defendant argued the nurse’s criminal acts were an intervening cause to any negligence by the dental practice for failure to supervise.The Court of Appeals affirmed the Trial Court, as the question of reasonable foreseeability of a criminal act for the purpose of proximate causation is generally for a jury’s determination rather than adjudication by the courts. The Court found the evidence does not show, as a matter of law, that the dental practice could not have reasonably anticipated that its patient might be victimized if left sedated to a medically-unjustifiable degree and for medically-unjustifiable amount of time without proper supervision. Further, the evidence showed that the nurse anesthetist sedated the Plaintiff at an unnecessarily deep level and for two hours more than necessary. This not only rendered her a more vulnerable target, but also constituted a violation of the standard of care and placed her at unnecessary risk of medical complications. Finally, the evidence showed the dentists who were supposed to supervise the nurse anesthetist were not statutorily qualified to do so pursuant to Georgia Law, thus creating an issue of fact for the jury to consider as to negligence per se. Therefore, given the specific statutory requirements and professional standards that exist to protect anesthetized patients, the Court did not believe that the abuse of an anesthetized patient is so unusual, contrary to ordinary experience, and rare that no reasonable jury could find the dental practice should have guarded against such abuse, and therefore directed verdict was not warranted. Little-Thomas v. Select Specialty Hosp.-Augusta, Inc., 333 Ga. App. 362, 773 S.E.2d 480 (2015), reconsideration denied (July 22, 2015), cert. denied (Oct. 19, 2015)This case involved a patient and her husband filing a complaint against a hospital after the patient was raped by a hospital employee. The trial court granted summary judgment to the hospital and the Plaintiffs appealed. The court of Appeals held that the hospital was not liable to a patient for negligent hiring of an employee where the hospital had undergone the appropriate hiring techniques, including a written application, interview, confirmation of prior employment, a certification of employee’s CNA training and a criminal background check. As a matter of law, these matters were held reasonable and summary judgment was affirmed.However, summary judgment was overturned on the question of whether there was a material fact as to whether the hospital knew or should have known that the employee in question displayed certain tendencies that could have caused harm suffered by a patient. The Court of Appeals states numerous times in its decision that the standard on summary judgment is one on which all reasonable inferences must be resolved in favor of the Plaintiff. As such it seems to discount some of the prior information that may have been known to the hospital but says on summary judgement all of the evidence must be viewed in a light most favorable to the Plaintiff. In this case, there was evidence that the alleged rapist had a number of prior complaints against him, including: he would yell at patients and was rough in handling them; additionally he was known to have screamed and thrown things at patients, cussed, ranted and raved. There was also deposition testimony that he had been described as aggressive towards patients and very good at shutting the door when he went to do what he needed to do. He was also described as having a big attitude and numerous male patients reported that he was rough. However, the key piece of evidence that the Court hung its hat on is one prior allegation against the perpetrator that he had evidently inappropriately touched a female patient five years before the incident in question. The evidence showed that the conduct in that case was aggressive, non-consensual sexual contact with a female patient who was physically vulnerable. That information had been reported to the hospital and the Court believed that was sufficient evidence to allow a jury to decide the question of whether the hospital knew or should have known of his particular proclivity of violence towards women. Additionally, there was evidence that the hospital itself had had several other prior incidents of sexual assaults on female patients in the five years prior to the incident in question. All combined, the Court believed that it was inappropriate to rule in favor of the hospital on summary judgment and rather it was more appropriately decided by a jury.Emergency care statuteNguyen v. Sw. Emergency Physicians, P.C., 298 Ga. 75, 779 S.E.2d 334 (2015)The Plaintiffs’ sued the hospital alleging emergency room personnel failed to properly evaluate their child and released her from the ER without diagnosing and treating her subdural hematoma and skull fracture, which led to severe brain damage. The trial court granted partial summary judgment to Plaintiffs holding Georgia’s “gross negligence” statute did not apply, but the Court of Appeals reversed and found that, whether the gross negligence statute applied, was a question for the jury. For certain health care liability claims in Georgia based on “bone fide emergency services,” health care providers will be liable only if the Plaintiffs prove the health care providers were grossly negligent. The Georgia Supreme Court notes that emergency medical care does not just mean “care provided in the emergency medical department.” Rather, the term means medical services commonly provided in an emergency department, like evaluating, classifying, and treating patients who come in asserting that they require emergency care, will be “bona fide emergency services,” even if the result is that the patient is diagnosed as not needing (or no longer needing) emergency treatment. The standard is objective and not subjective, so the provider’s belief about whether an emergency existed does not control (it is relevant). Further, symptoms that develop after the patient is discharged from the ER are irrelevant in determining whether an emergency medical condition existed while the patient was in the ER (i.e. here the patient’s subdural hematoma manifested after discharge). The Supreme Court agreed with the Court of Appeals and decided that, where there is evidence that the patient did not have acute and severe symptoms and some evidence she did, the jury had to assess whether the gross negligence standard applied and whether the Defendant met that standard. EvidenceMark v. Agerter, 332 Ga. App. 879, 775 S.E.2d 235 (2015)A patient sued his neurosurgeon for the alleged negligent placement of a halo device. The surgeon placed the halo’s opening in the front, which the Plaintiff alleged was negligent. After being sued, the surgeon changed his practice and placed the opening in the back. The halo device’s manufacturer testified that placement of the opening was the surgeon’s choice. Before trial, the surgeon moved to exclude evidence of his change (subsequent remedial measure) in practice. The trial court denied the neurosurgeon’s motion to exclude evidence of neurosurgeon’s remedial measure. The trial court believed that the evidence could attack the credibility (impeachment) of the manufacturer since the neurosurgeon had changed his practice. The neurosurgeon appealed. The Court of Appeals cautioned that impeachment should be used cautiously with subsequent remedial measure testimony. Individuals should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission they had been negligent. Impeachment with subsequent remedial measure testimony is proper where the evidence shows an actual contradiction in the individual’s testimony. Here a contradiction did not exist. Rather, the manufacturer’s testimony followed the surgeon’s change in practice (i.e. the opening can be placed either in the front or the back based on surgeon’s preference). that the impeachment exception to the subsequent remedial measures rule did not apply regarding surgeon’s decision to change his procedure how he placed spine stabilizing device.Robles v. Yugueros, 335 Ga. App. 324, 779 S.E.2d 139 (2015), reconsideration denied (Dec. 15, 2015), cert. granted (Apr. 21, 2016)A patient’s estate brought a medical malpractice action against a plastic surgeon and her practice group, alleging the surgeon was negligent in her post-operative care of the patient. The patient died from complications after surgery. A physician corporate representative of the practice group was deposed and testified that the standard of care required the Defendant physician to order a CT scan if she was unsure of what was causing the patient’s abdominal pain. Prior to trial, the Defendant physician filed a motion in limine to exclude this testimony and the trial court granted the motion finding that the opinion was based on hearsay, was not based on all the data necessary to form an opinion, was not held to a degree of medical certainty and that the testimony was ambiguous. The case went to trial and the jury returned a verdict in favor of the Defendant physician and practice group. The Plaintiff appealed and the Court of Appeals held the testimony was admissible at trial as a party’s admission against interest under O.C.G.A. § 9-11-32(a)(2). The case was remanded for a new trial.Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015)The destroyed evidence at issue in this case was printed paper strips of the electronic monitoring of the fetal heart rate. At the time of Phillips’ birth, the medical records at Henry Medical Center were maintained electronically. Nevertheless, the nurses often took notes on paper fetal monitor strips during labor and delivery. Even though the strips were not considered a part of the official record, the nurses would refer back to their notes to complete the official record. The hospital retained the strips for 30 days post-delivery and then would routinely destroy them. The strips at issue in this case were destroyed pursuant to that procedure. In light of the destruction of that evidence, Plaintiffs requested that the jury be given a spoliation charge, which would lead to the presumption that the destroyed strips would have been helpful to the Plaintiffs in the case. The typical determination of when a spoliation charge is to be given is whether the Defendant or alleged spoliator had notice of a claim. That has typically been held to mean the actual notice from the Plaintiff that a claim was imminent. However, the Supreme Court reversed the Court of Appeals on this decision and indicated there was sufficient evidence here to suggest that from the Defendant’s perspective, there was notice of a claim. The factors used by the Court to suggest that the Defendant was on notice of a potential claim include: The extent to which the party responsible for injury is clear;The potential financial exposure if faced with a finding of liability;The relationship and course of conduct between the parties, including past litigation or threatened litigation; andThe frequency with which litigation occurs in similar circumstances.In the case at hand, there was evidence that Henry Medical Center triggered its own sentinel event/medical errors of policies and procedures immediately following the birth. In accordance with such policies, the hospital launched an internal investigation which involved questioning of involved personnel, its subsequent notification to its insurance carrier, and contacting legal counsel. Additionally, there was deposition testimony that the risk management would “sometimes” request that the fetal monitor strips be preserved, although no such request was made in this case. “Logically, the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending, but when it is reasonably foreseeable to that party.”In essence, the Supreme Court has placed a duty on hospitals to preserve all evidence any time there is the possibility of a mistake or significant bad outcome. Cheney v. Lawson, 333 Ga. App. 180, 773 S.E.2d 297 (2015), reconsideration denied (July 15, 2015), cert. denied (Oct. 19, 2015)A patient sued her surgeon because she experienced a post-operative infection and complications. The jury awarded her $500,000. The physician appealed. The trial court allowed the patient to submit a summary of her medical bills to the jury. The summary listed charges from seven providers. The physician argued that the Plaintiff provided no testimony about whether the charges were reasonable or necessary. The trial court overruled the physician’s objection and allowed the evidence. A patient suing for medical malpractice “shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing . . . that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial.” The patient must segregate from the bills those charges unrelated to the treatment. The trial court used a general verdict form (the form did not specify how much of the verdict related to the medical bills), so the Court of Appeals could not determine whether the jury’s verdict relied upon the improper medical bill evidence. The Court of Appeals reversed. ExpertsCarter v. VistaCare, LLC, 335 Ga. App. 616, 782 S.E.2d 678 (2016)In September 2011, a patient sued for negligence and fraud for hospice services. During the pendency, the patient died. The administrator of the patient’s estate was substituted as the Plaintiff. On the eve of trial, the administrator dismissed the suit. Six months later, to renew the original suit, the administrator sued again for fraudulent inducement, battery, and negligence. The trial court dismissed the battery and negligence claims.To be a good renewal of an original suit, to suspend the statute of limitations, the new petition must be substantially the same both on the cause of action and on the essential parties. The second suit cannot enlarge the Defendant’s liability. Here, while the factual allegations were the same, the Plaintiff’s second suit added a claim for battery. The battery claim did not relate back to the original suit, and was properly dismissed as time barred. The trial court dismissed the negligence claims for failure to file an expert affidavit. Plaintiff claimed the allegations stated ordinary, not professional, negligence. Plaintiff alleged that staff failed to follow a doctor’s order for home health care and, instead, placed her in hospice. The Court of Appeals determined that, under the particular facts, the allegations raised a question of professional judgment. Thus, they required an expert affidavit. Huizhu Yan v. Herlis Associates, LLC, 335 Ga. App. 479, 781 S.E.2d 587 (2016)The aunt of a patient asserted a claim against a doctor for injuries she sustained when her nephew fell on her while she was assisting him off of the premises of the physician’s office. Count 2 of her complaint faulted the doctor for not assisting the patient off of the premises. The Defendant doctor filed a motion to dismiss on the grounds that the complaint stated a claim for medical malpractice and the Plaintiff failed to attach the required expert affidavit as required by O.C.G.A. § 9-11-9.1.In response, Plaintiff asserted that her complaint alleged ordinary negligence and not professional negligence, thus did not require an expert affidavit under O.C.G.A. § 9-11-9.1. The trial court dismissed the complaint for failure to state a claim because under ordinary negligence “a person is under no duty to rescue another from a situation of peril which the former has not caused, even when the peril is foreseeable.” The Court of Appeals affirmed the trial court’s judgment and upheld the dismissal because if the claim sounded in medical malpractice, the required expert affidavit was not filed and if the claim was one for ordinary negligence, there was no duty to rescue on behalf of the Defendant doctor. Expert CompetencyBlake v. KES, Inc., 336 Ga. App. 43, 783 S.E.2d 432 (2016)Plaintiffs sued a residential care facility for the death of their son. Plaintiffs’ son, Paul, was an adult diagnosed with multiple developmental disabilities and partial complex seizures. He required constant line-of-sight supervision due to his history of leaving his assigned area without permission. On the day in question, while the caregiver was out of the room, Paul walked out of the building. Security video footage shows that Paul fell to the ground and became unresponsive. Facility workers were by his side within seconds; however, they did not start CPR until several minutes later when instructed to do so by the 911 operator. Paul died as a result of cardiac arrest status post seizure. Plaintiffs asserted claims for simple negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, negligent supervision and negligent training. In support of these claims, Plaintiffs offered physician expert Dr. Kimani who testified that the facility employees failed to timely perform CPR and that if they had done so, Paul’s chance of a successful resuscitation was at least 50%. Dr. Kimani’s deposition testimony created an issue of fact as to causation for wrongful death. However, the trial court determined Dr. Kimani was not competent to testify as an expert because he did not teach or supervise support staff for three out of five years preceding the events in question as required by O.C.G.A. § 24-7-702(C)(2)(D). As a result, the trial court granted summary judgment to the Defendant facility. The Court of Appeals reversed the trial court’s decision and held that because Plaintiffs’ claims did not sound in medical malpractice and the individual Defendants listed in the case were non-medical personnel, the Plaintiffs were not required to establish that their expert met the competency requirements of O.C.G.A. § 24-7-702(C)(2)(D).Dubois v. Brantley, 297 Ga. 575, 775 S.E.2d 512 (2015), reconsideration denied (July 27, 2015)A patient who suffered injury following a laparoscopic procedure to repair an umbilical hernia filed a medical malpractice action against the treating surgeon and the hospital. The hospital and physician moved to dismiss the case alleging the Plaintiff failed to meet the expert affidavit requirement. Although the Plaintiff’s expert physician was a general surgeon, Defendants argued he was not qualified to opine as to the standard of care for the treating surgeon because the expert only performed one laparoscopic hernia repair in the five years preceding the care and treatment at issue. The trial court denied the Defendants’ motion. The Court of Appeals accepted Defendants’ application for interlocutory appeal and reversed the trial court’s decision. The patient then appealed to the Supreme Court. The Supreme Court sided with the trial court and held the patient’s expert was qualified to opine as to the standard of care for the Defendant surgeon despite the fact that he only performed one laparoscopic hernia repair in the five years preceding the events at issue. The Supreme Court reasoned that O.C.G.A. § 702(c)(2)(A) and (B) does not require that an expert actually have performed or taught the very procedure at issue. Rather the provision requires:That the expert has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given;That the expert has been regularly engaged in the active practice of such area of specialty for at least three of the five years preceding the events at issue or the teaching of his or her profession for at least three of the five years preceding the events at issue; and That the expert has been regularly engaged in the active practice or teaching with sufficient frequency to establish an appropriate level of knowledge in performing the procedure or teaching others how to perform the procedure. In this case, the Supreme Court found that the patient and his wife alleged the Defendant physician was negligent in placing the primary trocar during the laparoscopic procedure, causing a pancreatic puncture. Although the patient’s expert did not perform laparoscopic umbilical repairs in the five years preceding the events in this case, the record showed that he did perform numerous other laparoscopic procedures in the abdominal cavity which called for the insertion of primary trocars like the one used on the patient in this case. Further, there was nothing in the record to suggest insertion of a primary trocar in a laparoscopic umbilical repair differed in any important way from placement of the trocar in other abdominal laparoscopic procedures. Thus, the trial court did not abuse its discretion when it found the patient’s expert had the appropriate level of knowledge to opine that the Defendant physician was negligent in his insertion of the primary trocar. Zarate-Martinez v. Echemendia, 332 Ga. App. 381, 772 S.E.2d 826 (2015), cert. granted (Sept. 8, 2015)A patient sued her surgeon when he allegedly perforated her bowel during an open laparoscopic tubal ligation. Along with the complaint, she filed the affidavit of her expert, Dr. Jacobi. Instead of dismissing the case, the trial court allowed the patient 45 additional days to identify a competent expert witness. Subsequently, the patient filed the expert affidavit of Dr. Hendrix. The Defendants again moved to strike the affidavit. In response, the patient filed a supplemental affidavit from Dr. Hendrix. The trial court granted Defendants’ motion to strike Dr. Hendrix’s affidavits and dismissed her complaint on the grounds that Dr. Hendrix was not qualified under O.C.G.A. § 24-7-702 (c). The patient appealed contending that her expert affiant met the requirements of O.C.G.A. § 24-7-702 (c), another expert, Dr. Ward, identified by the patient also met the requirements of O.C.G.A. § 24-7-702 (c) and other evidence in the record created fact questions and established the “pronounced results” exception to the requirement for expert testimony. The Court of Appeals affirmed the trial court’s decision and held that Dr. Hendrix’s first and second affidavits failed to meet the requirements of O.C.G.A. § 24-7-702 (c). The Court reasoned that expert testimony in a medical malpractice case is admissible under O.C.G.A. § 24-7-702 (c)(2)(A) only if the expert can demonstrate having been regularly engaged in the active practice of such area of specialty for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge as determined by the judge, in performing the procedure. Dr. Hendrix’s affidavits assert that she has performed “many” open laparoscopic tubal ligations in each of the five years before the procedure at issue. Without further clarification as to what Dr. Hendrix meant by “many,” the trial court was within its discretion to rule that the affidavit failed to meet the “active practice” requirement. In addition the court ruled that Dr. Ward’s affidavit was not filed with the complaint under O.C.G.A. § 9-11-9.1, thus his qualifications were not material to the appeal. Further, the Plaintiff was not able to get around the expert affidavit requirement by citing the “pronounced results” exception. The “pronounced results” exception refers to cases where the medical questions at issue concern matters of common knowledge or the negligence appears so clearly from the record that the patient need not produce expert medical testimony concerning the standard of care. In this case, the Court found the exception did not apply to the O.C.G.A. § 9-11-9.1 expert affidavit requirement and that this was not a case where a jury could determine whether the standard of care was breached just by common knowledge. Intentional/Negligent Infliction of Emotional DistressCoon v. Med. Ctr., Inc., 335 Ga. App. 278, 780 S.E.2d 118 (2015), reconsideration denied (Dec. 15, 2015)The mother of stillborn child filed suit against the hospital for negligent and intentional infliction of emotional distress, arising out of hospital’s mislabeling of her stillborn baby, resulting in the funeral and burial of the wrong child. The trial court granted the hospital’s motion for summary judgment and the mother appealed. Specifically, she appealed the ruling that she did not suffer any pecuniary loss. Under Georgia's impact rule, “recovery for [negligent infliction of] emotional distress is allowed only where there is some impact on the Plaintiff, and that impact must be a physical injury.” In these circumstances, there was no physical impact to Plaintiff. And although Georgia law permits an exception for certain pecuniary losses, the exception applies only to “a pecuniary loss resulting from an injury to the person which is not physical.” Here, the Court found the funeral and burial expenses incurred by the Plaintiff were not a direct result of the emotional injury experienced by the Plaintiff, but were a result of having a stillborn child. Thus, the funeral and burial expenses are not sufficient to overcome the impact rule requirement. As for the claim for intentional infliction of emotional distress, the Plaintiff was required to show that (1) the conduct at issue was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the emotional distress; and (4) the resulting emotional distress was severe. In this case, the court found that although the hospital’s conduct was a tragic mistake, it did not rise to the level of egregiousness or outrageousness necessary to sustain this claim.Medical RecordsGerguis v. Statesboro HMA Med. Grp., LLC, 331 Ga. App. 867, 772 S.E.2d 227 (2015), cert. denied (July 6, 2015)The Court of Appeals Affirmed the Interlocutory Injunction denying The Doctors request for medical records for patients who had not specifically authorized the disclosure of their records and ordering Statesboro HMA Medical Group, LLC (“HMA”) to provide The Doctors with paper and electronic copies of all records for patients who had provided such authorizations. The Doctors sold their private practice to HMA, but continued working for HMA. As part of the sale, The Doctors transferred to HMA approximately 5,000 patient’s records and entered into employment agreements stating that HMA owned the records. The Doctors eventually left their employment with HMA and filed suit for breach of contract and attorney’s fees, seeking an emergency injunction ordering HMA to provide them and their new medical practice with electronic copies of all of HMA’s patient’s medical records. The Court held that personal medical records are protected under Georgia’s Constitutional Right to Privacy and cannot be disclosed without the patient’s consent unless disclosure is otherwise required by law. The evidence and review of the contracts, shows that HMA purchased the medical records as part of purchasing the practice. As such the physicians were only entitled to obtain a copy of the records if the patient had provided a signed authorization. The Court of Appeals held that the trial court did not abuse its discretion in denying The Doctor’s copies of records in the absence of those patient’s authorizations. The Court further held that, pursuant to the injunction, that The Doctors were entitled to both paper and electronic copies of the records for which patients had signed an authorization.Medical Record as a Basis for LibelJasarevic v. Foster, 335 Ga. App. 528, 782 S.E.2d 314 (2016)A workers’ compensation patient sued his physician for libel and contended that the physician falsely accused the patient of committing a crime. After an on-the-job injury, the Workers’ Compensation Board appointed the physician as the patient’s treater. The physician dictated a progress note that read the patient made threats to the physician and his staff. Further, the note read the physician no longer wanted to treat the patient. The patient sued the physician and claimed the libelous statements prevented him from receiving medical care. The physician moved to dismiss the complaint, and the trial court granted. The patient appealed. The Court of Appeals upheld the trial court’s decision. Statements made by a physician in their medical records that are pertinent and material to the physician’s medical examination, such as these statements, are privileged and cannot serve for a claim of libel. Because the statements were privileged, the patient could not use them to support his claim. Therefore, the trial court properly dismissed the complaint. Brown v. Howard, 334 Ga. App. 182, 778 S.E.2d 810 (2015)The Court of Appeals reviewed the State Court’s decision determining, that with the exception of billing records, certain medical records were privileged and that that privilege had not been waived. Courtney Howard had sued various medical providers alleging that they committed negligence during the delivery of Howard’s daughter, Sahara, thereby causing a severe brain injury to the child. The Defendant doctors had requested various medical records and the Plaintiffs objected to the production of those records. At issue was the fact that Ms. Howard had smoked as many as four joints of marijuana per day up until the time she learned she was pregnant. She had also previously received mental health and substance abuse treatment at the Cobb Recovery Center. Further, she had taken drug classes there as a condition of probation arising out of a charge of simple battery that was later dropped. Additionally, medical documents produced from other sources showed that Howard tested positive for marijuana on one or more occasions during her pregnancy. Upon review of the documents in question, the trial court had determined that the only thing that should be produced was the billing records. The court of Appeals, however, remanded the case for further findings to the trial court and laid out various principles that relate to the privilege of medical records such as these. The court highlights the fact that under Georgia privilege laws, it is the communications between a patient and psychiatrist, licensed psychologists, licensed clinical social workers, etc., that are privileged. Information about the dates and times of treatment, for example, are not privileged. It is this information which has its origins in communications from the patients to the mental health providers that is privileged. Additionally, the Defendant physicians maintain that educational services provided by CRC to Ms. Howard including substance abuse classes and job training, as well as communications made to non-licensed personnel were not privileged. The Court acknowledged that not all psychiatric records are privileged. Further, they noted that non-privileged portions of such records are subject to discovery. For example, the Court noted the privilege does not extend to any communications made by the patient to nurses or attendants unless those providers are acting as agents of the attending psychiatrist. The Court also notes that drugs tests provided by an employer are not protected. For these reasons, the Court remanded the issue to the trial court for an in camera review in conformance with the Court’s opinion.Respondeat SuperiorJefferson v. Houston Hosps., Inc., No. A15A1811, 2016 WL 1203850 (Ga. Ct. App. Mar. 29, 2016)This case is representative of three different cases, which arose out of the misconduct of an employee of the Defendant hospital, who forged mammography reports instead of giving the images to a radiologist for review. The three Plaintiffs asserted claims for fraud, RICO, intentional infliction of emotional distress, breach of contract and express warranty, general negligence, negligence per se, and conversion. Plaintiffs based their claim against the hospital upon a theory of respondeat superior, or vicarious liability. The trial court found the hospital was not vicariously liable for the employee’s actions because she was not acting within the scope of her employment and therefore granted summary judgment to the hospital. The Court of Appeals affirmed, holding the employee was not acting within the scope of her employment when she improperly accessed the mammography computer files and forged reports. More specifically, by undertaking responsibilities that she was not charged with or qualified to perform, the employee abandoned the hospital’s business to serve her own convenience, not for any purpose beneficial to the Hospital. As such, the hospital was not vicariously liable for the employee’s actions.Scope of DiscoveryBowden v. The Med. Ctr., Inc., 297 Ga. 285, 773 S.E.2d 692 (2015)The Defendant hospital provided care to Danielle Bowden, who did not have health insurance, after she was injured in a car wreck, billed her $21,409.59 for her care, and filed a hospital lien for that amount. In a subsequent lawsuit, Bowden sought to invalidate the lien on the ground that the billed charges were grossly excessive and did not reflect the reasonable value of the care she received. During discovery, the hospital objected to Bowden's requests for information and documents regarding the amounts that the hospital charged insured patients for the same type of care. Bowden filed a motion to compel discovery, which the trial court granted. On interlocutory appeal, the Court of Appeals reversed. The Georgia Supreme Court then granted certiorari to determine whether the documents requested and the interrogatories propounded by Bowden were relevant to the reasonableness of the hospital’s charges for her care. The Supreme Court reversed the Court of Appeals, holding that although the amounts the hospital charged to other patients treated at the same hospital for the same type of care during the same general time frame may not be dispositive of whether the hospital’s charges were “reasonable,” that does not mean that how much the hospital charged those other patients is entirely irrelevant to the reasonableness of the charges for Bowden’s care.Jones v. Covington, No. 1:15-CV-396-WSD, 2015 WL 7721835, at *1 (N.D. Ga. Nov. 30, 2015)Plaintiffs alleged the Defendant physician misread a pathological slide containing tissue samples of the decedent, and mistakenly concluded that the lesion he evaluated represented a benign mole, as there were indicia of melanoma present on the slide. Approximately two and one half years later, the decedent succumbed to melanoma. Plaintiffs filed a Motion to Compel, seeking to compel the Defendant to re-read the original pathological slide and provide deposition testimony pertaining to the slide’s reexamination. Essentially, Plaintiffs contend they are entitled to require the Defendant to precisely recreate all of the same conditions under which he read the original slide and then engage in an examination to create new facts. The Court found this request to be inappropriate, holding that while discovery is allowed about facts in existence; it is not to require a party to engage in conduct to create new facts so they may then be “discovered.”Statute of Limitations/Statute of ReposeWong v. Chappell, 333 Ga. App. 422, 773 S.E.2d 496 (2015), reconsideration denied (July 27, 2015), cert. denied (Oct. 19, 2015)The deceased patient’s husband brought medical malpractice claims against several physicians and their medical offices when his wife died after she underwent a cryoablation of the endometrium. Dr. Chappell, an OBGYN performed a cryoablation on Ms. Wong in her office. A few days after the procedure, Ms. Wong called Dr. Chappell’s office and spoke to an unlicensed medical assistant about her post procedure pain, bleeding and changes in her bowel movement. The assistant thought she may have a urinary tract infection and told Ms. Wong her symptoms may be normal. She advised Ms. Wong to take Ibuprofen. The medical assistant testified that she did not consult with any physician about Ms. Wong’s call. Several days later, Ms. Wong went to the ER and was admitted to the ICU. Later that day, she underwent an exploratory laparoscopic surgery. During that surgery, Defendants Dr. Chappell and Dr. Kelley were in the operating room. They testified the uterus was “boggy,” but that they expected it to look this way after a cryoablation. They decided not to perform a hysterectomy at that time. Eleven days later, Ms. Wong died.Ms. Wong’s husband filed suit alleging Dr. Chappell perforated the uterus during the cryoablation, leading to sepsis and necrosis; the medical assistant failed to handle Ms. Wong’s call regarding her abdominal symptoms appropriately, the administrative staff failed to ensure Ms. Wong was in possession of her antibiotic prescription, negligent training of the medical assistants and that the physicians negligently failed to remove Ms. Wong’s necrotic uterus after the exploratory laparotomy. The case was tried and the jury returned a verdict for the defense. The husband appealed arguing that the trial court erred by refusing to charge the jury on simple negligence, the illegal practice of medicine and negligence per se. The Court of Appeals agreed with Mr. Wong found that jury instructions on simple negligence were warranted because the claims against the physicians and medical group for the actions of its administrative staff sounded in ordinary negligence, not professional negligence. Further, the instructions on the illegal practice of medicine and negligence per se were warranted because the medical assistant who spoke with Ms. Wong over the phone was not authorized to assess the severity of Ms. Wong’s symptoms and to instruct her to take Ibuprofen. Thus, doing so violated the state statute prohibiting the practice of medicine without a license. Violation of the statute amounted to negligence per se. Finally, Mr. Wong argued that the package inserts for the freezing tool used in the cryoablation set the standard of care and that the trial court should have instructed the jury accordingly. The Court of Appeals found the package insert is relevant to the standard of care but does not establish the standard of care.Smith v. Danson, 334 Ga. App. 865, 780 S.E.2d 481 (2015)A patient filed a medical malpractice complaint against a physician and her practice group after the patient was injured during a laparoscopic hysterectomy. The Defendant physician filed a motion for summary judgment arguing that the complaint was filed after the expiration of the two-year statute of limitations. The trial court denied the motion and the Defendant physician appealed. The Court of Appeals affirmed the trial court’s decision. The Court of Appeals found that the claims arising out of the surgery itself were time barred. However, the Plaintiff abandoned those claims and instead, asserted a claim for the subsequent misdiagnosis only. The statute of limitations for medical malpractice cases begins to run from the time of the negligent act causing injury. The patient in this case took the position that the injury caused during surgery was a risk of the procedure that was not caused by negligence on behalf of the physician. Instead, the Defendant physician committed negligence when she failed to diagnose the surgical injury at the postoperative appointment. Therefore, in this case, the statute of limitations began to run from the time of the misdiagnosis, not from the time of the surgery. Because the claim against the physician for misdiagnosis was “free standing” and filed prior to the expiration of the statute of limitations, it was not time barred. Piedmont Hosp., Inc. v. D.M., 335 Ga. App. 442, 779 S.E.2d 36 (2015), reconsideration denied (Dec. 16, 2015), cert. denied (Apr. 26, 2016)The Plaintiff patient brought a negligence action against the Defendant doctor and hospital, alleging failure to inform the patient of blood tests showing positive result for HIV several years prior to the patient’s AIDS diagnosis. The State Court denied the doctor and hospital’s motion for summary judgment based on the statute of repose for medical malpractice cases, and the Court of Appeals reversed. In order to determine whether the five year statute of repose for medical malpractice cases pursuant to O.C.G.A. § 9–3–71(b), the Court of Appeals had to first determine whether the Plaintiff’s claims were medical malpractice claims despite the Plaintiff’s designation of the claims as ordinary negligence and fraud. The Court of Appeals held the Defendants failure to notify the Plaintiff of his positive HIV test results, even if designated as ordinary negligence or fraud claims, arise out of the breach of a professional duty to inform D.M. of his medical condition and thus must be considered classic medical malpractice claims. As such, the 5 year statute of repose for medical malpractice cases applied and barred the Plaintiff’s claims.Trial ProcedurePiedmont Newnan Hosp., Inc. v. Barbour, 333 Ga. App. 620, 774 S.E.2d 822 (2015), reconsideration denied (July 30, 2015), cert. denied (Oct. 19, 2015)A patient brought medical malpractice action against hospital and alleged the hospital failed to ensure an IV was correctly functioning prior to heart stress test. The IV infiltrated nuclear tracer material in his arm, which caused complex regional pain syndrome (CRPS). The trial court allowed the jury to feel the patient’s hands to determine for themselves which of two experts was correct about whether there was temperature difference between hands, and possibly which expert had greater credibility about whether patient suffered from CRPS. Counsel for the hospital objected because the exercise converted the jury into witnesses who could not be cross-examined. No Georgia case presented an issue directly on point. Further, other states are split about whether a jury should be allowed to touch a Plaintiff. The Court of Appeals noted prior Georgia decisions allowed jurors to utilize all their senses, not just hearing and eyesight, in determining factual disputes put to them. Further, the evidence related to the factual dispute (i.e. whether one arm was cooler than the other arm). The hospital also failed to preserve digital images of the patient’s heart stress test. The patient, within six months of the test, alerted the hospital he would pursue legal action. The images were stored on the machine’s hard drive but never downloaded. When the hospital moved to a new location, the machine’s vendor erased the hard drive. Therefore, the trial court properly imposed spoliation sanctions, which prevented the hospital’s witnesses from testifying that the IV was properly placed during a relevant portion of the patient’s heart stress test. Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015)This case involves allegations made against a midwife, OB/GYN and hospital arising out of the delivery of a child and the allegations that the healthcare providers’ negligence caused severe oxygen deprivation and corresponding neurological injuries. The case was tried to a defense verdict and the trial court denied Plaintiff’s motion for a new trial based on several grounds.The initial matter in the case was that the Court received a note from the jury outside the presence of the parties and their counsel and responded to that note in an ex parte communication. The Georgia Supreme Court, affirming the Court of Appeals decision, held that all parties to civil actions have the right to be present at all stages of a trial of the action so that all parties may be able to render assistance to its counsel as developments unfold. A question in the case was given to the judge by the jury very shortly after deliberations began. They asked the question, “What happens if we can’t reach a unanimous verdict?” The judge wrote back a note indicating, “Please continue deliberating.” The Court had the bailiff return the note to the jury and it was not discussed with the parties or counsel. This only came to light when several jurors brought this information to Plaintiff’s counsel’s attention several weeks after the verdict. The Supreme Court engages in a lengthy discussion about a party’s right to be present during a trial during both a criminal and civil context. They cite extensively to the recent Chesterson decision in which it was held that you cannot exclude a young injured child from most of the liability phases of trial of a lawsuit on the grounds that the injured child’s presence in the courtroom would be prejudicial to the other side. Although this situation is a bit different, the principle is the same. The Court held all communications with the jury are to be discouraged, except in open court with all persons present. On these grounds, the Supreme Court affirmed the Court of Appeals decision to allow a new trial.WaiverTurrell v. McNeel, 333 Ga. App. 611, 774 S.E.2d 274 (2015), reconsideration denied (July 30, 2015), cert. denied (Nov. 2, 2015)A patient brought medical malpractice action against physician and his practice based on an alleged negligent surgical procedure. Plaintiff’s counsel and defense counsel met with the Plaintiff’s wound care nurse before trial. To prepare for trial, defense counsel contacted the nurse to tell her they would call her and to inquire about her availability. The nurse requested a copy of her medical record because some time had passed, so defense counsel sent her a copy of those records. At trial, the Plaintiff argued that defense counsel had violated the qualified protective order and violated HIPAA by providing the records to the wound care nurse. The Plaintiff sought severe sanctions for defense counsel’s violation of the protective order by contacting treating nurse. However, the Plaintiff declined to pursue sanctions after the trial court concluded it could not address sanctions without declaring a mistrial to give the court time to address the alleged misconduct. The jury returned a verdict for physician and practice, and the court denied Plaintiff’s post-trial motions for a new trial, for sanctions, and to disqualify defense counsel.The Court of Appeals found that Plaintiff waived their objection when they declined to pursue the sanctions after a mistrial. The Plaintiff argued they had been given an “Hobson’s choice,” but the Court of Appeals disagreed. The Plaintiff’s counsel had been given time to confer with the Plaintiff and declined to pursue sanctions and proceed to a jury verdict. The Court of Appeals held it axiomatic that a party cannot complain of error created by his own legal strategy, trial procedure or conduct.Witness DisclosureElliott v. Resurgens, P.C., 782 S.E.2d 867 (Ga. Ct. App. 2016), reconsideration denied (Mar. 16, 2016)The Plaintiff underwent spinal surgery by the Defendant physician. Subsequently the patient developed an abscess in the area of the postoperative wound. It was initially treated with antibiotics then drained. The Plaintiff remained in the hospital for several days and underwent an additional procedure to ensure there was no additional infection collecting around the spinal cord and for final closure of the wound. Two days after the additional procedure, the Plaintiff began to have decreased movement in his legs. Eventually the physician obtained an MRI which showed swelling of the spinal cord. The Defendant physician performed a laminectomy in hopes of reliving the pressure on the spinal cord and discovered another spinal abscess. Ultimately the surgery was unsuccessful and the Plaintiff became paralyzed from the waist down.Plaintiff sued the Defendant physician alleging the physician failed to timely obtain imaging studies and rule out spinal abscess. At the trial of the case, liability centered on when the Defendant physician became aware of the neuro deficits in the Plaintiff’s legs by 9:00 a.m. on the day in question. The Defendant physician testified that he was not aware of the Plaintiff’s decreased movement until 11:30 a.m. when he performed an assessment. However, a nurse’s note indicated that the physician was at the bedside and aware of the patient’s inability to move his legs at 9:00 a.m. The case went to trial. During trial, Plaintiffs attempted to call the nurse witness who documented the physician at bedside and that he was aware of the inability to move the legs at 9:00 a.m. The Defendants objected claiming the nurse witnesses was not disclosed in the pretrial order or in discovery. The trial court agreed and refused to allow the nurse to testify. The jury entered a verdict in favor of the physician. The Plaintiff appealed claiming the trial court erred in failing to admit the testimony of the nurse who worked at the hospital during the time of the events at issue even though she was not specifically named in the pretrial order or in discovery. The Court of Appeals agreed that exclusion of probative testimony was not an appropriate remedy for failure to disclose the nurse witness in discovery and remanded the case for a new trial. ................
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