ADA Compliance - GSHRM



2018 GSHRM Update on the law ofMedical NegligenceTABLE OF CONTENTS TOC \o "1-1" \h \z \u ADA Compliance PAGEREF _Toc511835929 \h 1Apportionment and Expert Testimony PAGEREF _Toc511835930 \h 1Arbitration PAGEREF _Toc511835931 \h 2Breach of Contract PAGEREF _Toc511835932 \h 3Causation/Evidence PAGEREF _Toc511835933 \h 4Emergency Medicine PAGEREF _Toc511835934 \h 5Expert Affidavit PAGEREF _Toc511835935 \h 6Expert Witnesses PAGEREF _Toc511835936 \h 8Hospital Charges PAGEREF _Toc511835937 \h 9Indemnification PAGEREF _Toc511835938 \h 9Medical Staff Privileges PAGEREF _Toc511835939 \h 10Ordinary v. Professional Negligence PAGEREF _Toc511835940 \h 11Professional v. Simple Negligence PAGEREF _Toc511835941 \h 12Slip and Fall/Premises PAGEREF _Toc511835942 \h 14Statute of Limitations PAGEREF _Toc511835943 \h 14Witness Disclosure PAGEREF _Toc511835944 \h 19ADA ComplianceSilva v. Baptist Health S. Fla., Inc., 856 F.3d 824 (11th Cir. 2017) TA \l "Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824 (11th Cir. 2017)" \s "Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824 (11th Cir. 2017)" \c 1 Two Plaintiffs, who are hearing-impaired, alleged that the defendants, two nonprofit hospitals and their nonprofit parent company, failed to provide an in-person interpreter for American Sign Language but relied instead on video remote interpreting (VRI), which was allegedly ineffective in violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA). The district court awarded summary judgment to the defendants on the basis that the plaintiffs lacked standing to seek injunctive relief under the ADA or the RA because they did not show that they were likely to return to the healthcare facilities in the future. The district court also dismissed plaintiffs’ claims under the RA because they failed to establish any damages, i.e., they failed to demonstrate instances where communication difficulties resulted in actual adverse medical consequences to them.The US Court of Appeals, however, reversed the lower court’s ruling. While the court recognized that it is ultimately up to the healthcare provider to determine the appropriate auxiliary aid to supply and that it is not required to supply any and all auxiliary aids demanded, the court stressed that the auxiliary aid furnished must provide effective communication. The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.” It explained that hospitals must “afford a level of communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.” The court rejected the requirement that, to make out an effective communication claim, a plaintiff must establish actual deficient treatment or recount specifically what the plaintiff did not understand. It explained that the “focus is on the effectiveness of the communication, not on the medical success of the outcome.” The court also rejected the notion that a defendant could defeat such a claim by showing that a plaintiff was able to participate in the “most basic elements of the doctor-patient exchange.” Additionally, the Court held the plaintiffs had standing to seek injunctive relief under both acts, as their affidavits set forth that they had a history of prior care and treatment at the hospitals and would likely return to the hospitals for future care. The defendants also maintained the plaintiffs’ medical records, and their facilities were located close to the plaintiffs’ homes.Apportionment and Expert TestimonyRobles v. Yugueros, 343 Ga. App. 377, 807 S.E.2d 110 (2017) TA \l "Robles v. Yugueros, 343 Ga. App. 377, 807 S.E.2d 110 (2017)" \s "Robles v. Yugueros, 343 Ga. App. 377, 807 S.E.2d 110 (2017)" \c 1 TA \s "Robles v. Yugueros, 343 Ga. App. 377, 807 S.E.2d 110 (2017)" TA \s "Robles v. Yugueros, 343 Ga. App. 377, 807 S.E.2d 110 (2017)" The Defendant performed extensive cosmetic surgery on the Plaintiff’s wife. Subsequently, the decedent went to the emergency room suffering from severe abdominal pain. After an abdominal x-ray, which the E.R. doctor determined to be “unremarkable,” the decedent was discharged. A radiologist who later saw the abdominal film could not rule out the presence of free air in the abdomen, which “could be a normal post-operative condition or could indicate a more serious issue.” The radiologist recommended a CT scan and posted his opinion in the decedent’s electronic medical record.Later, her pain worsened and she went to a different hospital. She was evaluated there by her plastic surgeon, who did not procure the radiology record from the previous hospital and did not order a CT scan. She subsequently died the same day. Plaintiff sued the plastic surgeon and her practice. During the litigation, plaintiff served a notice of deposition for a corporate representative (a “30b6 witness”). Dr. Yugueros’ partner was designated as the representative of the group. During the 30b6 deposition, the representative testified that Dr. Yugueros ordered a CT scan, when, in fact, she had not. The follow-up questions indicated that the representative considered ordering a CT scan part of the standard of care. Before trial, Dr. Yugueros and her group moved to exclude the 30b6 witness testimony because it was not based on facts in the record, consistent with the rules regarding expert witness testimony. Plaintiff opposed, and argued that it was an admission against interest. The trial court excluded the testimony and the Court of Appeals reversed because the testimony was not “expert” testimony but rather an admission against interest.On certiorari, the Supreme Court reversed, holding that while depositions may be used by an adverse party “for any purpose,” that does not trump the rules regarding the admissibility of evidence, including the requirement that opinion testimony be based on facts. The Court sent the case back to the Court of Appeals for further review.On remand, the Court of Appeals held, the deposition testimony of the practice group’s co-owner regarding post-surgery standard of care was not admissible as expert testimony because __________. Additionally, the court addressed a unique apportionment issue that presented itself. Specifically, it found that the trial court was authorized to exclude an argument that a non-party would not be required to pay any portion of the verdict apportioned to it. It noted that “Because it was unnecessary for the jury to consider that the nonparties would have no responsibility to pay any damages awarded, the trial court did not err in curtailing the cited portion of the closing argument.”ArbitrationColeman v. United Health Services of Georgia, Inc. 2018 WL 1024726 TA \l "Coleman v. United Health Services of Georgia, Inc. 2018 WL 1024726" \s "Coleman v. United Health Services of Georgia, Inc. 2018 WL 1024726" \c 1 Plaintiff sued nursing home Defendants for negligence, medical malpractice, fraud, and other claims relating to his care and treatment at a nursing home. Defendants moved to dismiss the action or stay the proceeding and compel arbitration. The trial court granted the motion, staying the lawsuit until the conclusion of arbitration. In 2009, Plaintiff signed an Advance Directive for health Care appointing his sister and brother-in- law as health Care agents authorized to make health care decisions for him. In 2013, Plaintiff was admitted to Heritage Healthcare of Forsyth for long-term nursing care. Plaintiff’s signed various admission documents including a voluntary arbitration agreement. Plaintiff indicated on numerous documents that his brother-in-law was his “representative” or the “responsible party.” Plaintiff began exhibiting memory and behavioral issues and was transferred to the memory unit of Heritage Healthcare of Macon. In 2014, Plaintiff’s brother-in-law signed admission paperwork for Plaintiff as his representative, including a voluntary arbitration agreement. In December, 2014, Plaintiff filed suit against the Macon facility for injuries he allegedly sustained during his treatment at the facility. Defendants answered the Complaint and moved to compel arbitration pursuant to the voluntary arbitration agreement signed by Plaintiff’s brother- in-law. The trial Court granted the motion but issued a certificate of immediate review. At issue on appeal was (1) whether Plaintiff’s representative had express or implied authority to bind him to the arbitration agreement; and (2) whether the patient is bound by the terms of the arbitration agreement as a third party beneficiary. Court of Appeals reversed trial court ruling finding Plaintiff’s representative did not have express or implied authority to execute the arbitration agreement. Plaintiff’s present was appointed as an agent for healthcare decisions. However, the arbitration agreement was not a precondition to admission, expedited services, or the furnishing of services; therefore the decision to execute the arbitration agreement was not a healthcare decision. There was no showing of apparent/implied authority as no one at the facility spoke to Coleman prior to his admission or review of the arbitration agreement with him nor did they obtain any supporting documentation establishing his representative held the power of attorney.The Court further held that the patient was not bound by the terms of the arbitration agreement as a 3rd party beneficiary. A person becomes a third-party beneficiary to a contract when “one party to the contract promised another party to the contract to render some performance to the nonparty to the contract…[and] both parties to the contract intended that the contract benefit the non-party. Vaughn, Coltrane & Assoc. v. Van Horn Constr. 254 Ga. App. 693, 694, 563 S.E.2d 548 (2002). Pursuant to O.C.G.A. 9-2-20(b), a third party beneficiary “may maintain an action against the promisor on the contract.” The Court held that Coleman was not subject to the arbitration agreement on a third party beneficiary basis because doing so would allow contracting parties to bind an unsuspecting third party to arbitration without providing a benefit desired or accepted by the third party.Breach of ContractGrady Memorial Hospital Corporation v. Hayes, 341 Ga. App. 455 TA \l "Grady Memorial Hospital Corporation v. Hayes, 341 Ga. App. 455" \s "Grady Memorial Hospital Corporation v. Hayes, 341 Ga. App. 455" \c 1 Plaintiff/Appellee filed suit for negligence and breach of contract resulting from a ventral hernia repair which resulted in a postoperative surgery to repair a puncture of his bowel wall. Defendant/Appellant filed a motion to dismiss for failure to attach an expert affidavit to Plaintiff’s Complaint. Plaintiff voluntarily dismissed the suit without prejudice. Plaintiff filed a renewal suit alleging negligence and breach of contract. Plaintiff alleged his surgery had been performed by a different surgeon than he agreed to, resulting in a failure to execute the contract with Plaintiff as agreed. Plaintiff again failed to file an expert affidavit. Defendant moved to dismiss Plaintiff’s renewal action as it sounded in professional negligence and he had failed to attach an expert affidavit. The trial court, however, denied Defendant’s motion to dismiss as to Plaintiff’s breach of contract claim, finding the Complaint sufficiently set for such a claim. The Court of Appeals held that Plaintiff/Appellee had failed to establish the existence of a contract between himself and the healthcare provider noting: “When a Complaint does not allege facts showing the existence of a contractual relationship between the plaintiff and the defendant, dismissal is proper because there is no set of provable facts within the framework alleged by the complaint that would result in liability for breach of contract.Causation/EvidenceCentral Georgia Women’s Health Center, LLC v. Dean, 342 Ga. App. 127 TA \l "Central Georgia Women’s Health Center, LLC v. Dean, 342 Ga. App. 127" \s "Central Georgia Women’s Health Center, LLC v. Dean, 342 Ga. App. 127" \c 1 Katherine Dean and Lester Dean filed a medical malpractice suit, individually and as administrators of the estate of their deceased child, against various defendants for the wrongful death of their child; pain and suffering of their child; and pain and suffering suffered by Mr. And Ms. Dean.Ms. Dean became a patient at Defendant, Women’s Health Center. Ms. Dean had two prior miscarriages and was at risk for an incompetent or insufficient cervix. Over the course of Ms. Dean’s pregnancy she experienced cervix shortening. At 22 weeks of pregnancy an ultrasound showed Ms. Dean’s cervix was less than 2.5 centimeters, which is considered critical and increases the risk of premature delivery. She was discharged with instructions to take it easy. Approximately one week later, Ms. Dean presented at defendant hospital emergency room with thick, dark vaginal discharge. On her way to the hospital, Ms. Dean contacted her physician, Dr. Davis and informed him of her symptoms. He informed her she should come into her regularly scheduled appointment the following morning. Once at the hospital a nurse contacted Dr. Davis; he diagnosed Ms. Dean with a UTI and told her to come into her regularly scheduled appointment the following morning. Following her discharge from the hospital, Ms. Dean experienced worsening symptoms. She arrived at her appointment where she was examined and diagnosed with increased cervical shortening and was sent to a nearby maternal fetal medicine specialist. Before being seen by the material fetal special she was transported to the hospital for increased pain. At the hospital, she went to premature labor and delivered her baby by emergency C-section. The baby died from extreme prematurity.The jury found for Plaintiff in the amount of $4,000,000.00. Following the entry of final judgment, Defendants filed a motion for j.n.o.v. and for new trial, contending the plaintiffs had failed to prove causation and the trial court erred in denying a motion in limine to exclude a physician’s note erroneously indicating Dr. Davis had evaluated the patient.The Court of Appeals affirmed the judgment in favor of Plaintiffs. The Court of Appeals held that the trial court had not erred in denying Defendants j.n.ov. and directed verdict because Plaintiffs had come forward with evidence of causation and therefore were entitled to have the jury decide the issue. Plaintiffs presented several expert witnesses who testified that Dr. Davis should have physically examined Ms. Dean and had he done so, would have ordered a cerclage or administered progesterone. Causation may be “established by linking the testimony of several different experts and must be determined in light of the evidentiary record as a whole”. Walker v. Giles, 276 Ga. App. 632 (2005).The Court of Appeals further held that the trial court had not erred in allowing Plaintiff to present evidence Dr. Davis wrote a physician note indicating he had evaluated the patient which he subsequently struck through and wrote “error pr was not see, out of room.” Under Rule 608 (b)(1) of Georgia’s revised Evidence Code, a trial court may allow questioning about specific instances of conduct by a witness on cross examination, if the conduct is probative of the witness’s character for truthfulness of untruthfulness.Emergency MedicineKidney v. Eastside Medical Center, LLC, 343 Ga. App. 401 TA \l "Kidney v. Eastside Medical Center, LLC, 343 Ga. App. 401" \s "Kidney v. Eastside Medical Center, LLC, 343 Ga. App. 401" \c 1 Parents of a patient who died from volvulus, or an abnormal twisting of the intestine causing obstruction, brought suit against various defendants, including: the hospital, emergency room physicians and their employers, radiologist and his employer. Tiffany Jennings-Perry presented to the hospital on April 28, 2012 on two occasions with complaints of abdominal pain. Initially Jennings-Perry was diagnosed with “epigastric abdominal pain” and given viscous lidocaine to numb the esophagus and stomach, and Mylanta. Within three hours, Jennings-Perry presented again to the emergency department by ambulance. She reported her pain was a 9 out of 10. An ultrasound was ordered to rule out any life-threatening situations. It was determined she was not suffering any life-threatening symptoms. She was discharged with a prescription for Tramadol for pain and instructed to see a gastroenterologist as soon as possible. On April 30, 2012, Jennings-Perry was seen by a gastroenterologist. He determined she needed to be hospitalized. He informed Jennings-Perry he could directly admit her to the hospital or she could go to the emergency room. She refused both options. The next day Jennings-Perry was found dead in her apartment. The medical examiner determined her cause of death as “small intestine ischemia” due to volvulus of small intestine.The Trial Court granted motions for summary judgment filed by the hospital, emergency room doctors and their employers, and the radiologist and his employer. The Trial Court also denied Plaintiff’s motion to amend their Complaint. The Plaintiffs argued that the Trial Court erred by granting summary judgment because whether defendants are entitled to the emergency medical care statute, OCGA 51-1-29.5 depends on disputed issues of fact. The Court of Appeals held that the Trial Court erred by granting summary judgment to hospital and two emergency room physicians based on the emergency medical care statute. Three conditions must be met for the emergency medical care statute to apply: (1) the lawsuit must involve a “health care liability claim”; (2) the claim must arise out of the provision of “emergency medical care”; and (3) the care must have been provided to the patient “in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.” Niset v. Davis, 327 Ga. App. 559, 564-565(1), 760 S.E.2d 179 (2014). Emergency medical care is defined as “bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or series dysfunction of any bodily organ or part. OCGA 51-1-29.5(a)(5). Determining whether Jennings-Perry was stable and capable of receiving medical treatment as a nonemergency patient was a question of fact for a jury.While the Court of Appeals held that the Trial Court erred in granting the hospital and treating physician’s motions for summary judgment based on the emergency medical care statute, the Court of Appeals affirmed the dismissal of the hospital on the ground that plaintiffs had failed to point to any evidence that any negligence of the hospital’s nurses caused or contributed to Jennings-Perry’s death.Expert AffidavitCurles v. Psychiatric Solutions, Inc., 343 Ga. App. 719 TA \l "Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719" \s "Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719" \c 1 A patient with an extensive mental health history dating back to 1999 and involving suffering from a series of psychotic breaks resulting in violent conduct was treated in a mental health facility on three different occasions between November 2008 and January 2009. She was arrested and involuntarily committed on each occasion for violent tendencies. Twelve days after her most recent discharge from the psychiatric facility, the patient killed her grandmother and her aunt’s boyfriend. The decedent’s parents filed suit individually and on behalf of their children against the patient’s treatment providers, owner of the psychiatric facility, and the owner’s parent companies for wrongful death owing to ordinary and medical negligence. Plaintiff contends the trial court erred dismissing their claims based on failure to satisfy the affidavit requirements set forth in OCGA 9-11-9.1. Plaintiffs contend expert affidavits were not required in accordance with medical malpractice claims because the facility had failed to follow the discharge requirements of O.C.G.A. §§37-3-4, 37-3-24, and 37-3-95 and negligence per se claim did not require an expert affidavit. Plaintiffs further contend the decision to discharge a psychiatric patient sounds in ordinary negligence because the decision was not a medical decision, but rather a decision based in part on a corporate policy of releasing patients when their insurance runs out. The Court of Appeals held that claims made arising out of failure of parent companies for psychiatric facility owner to five notice of patient’s discharge to the court that involuntarily committed patient or law enforcement agencies having control over the patient as required by statute did not arise out of care or treatment of the patient or involve the exercise of professional judgment but rose out of statutory duty to give notice and therefore sounded in ordinary negligence. Therefore, the claim did sound in medical or professional malpractice and an expert affidavit was not required by representatives to support their case. The Court of Appeals reversed the trial court.Graham v. Reynolds, 343 Ga. App. 274 TA \l "Graham v. Reynolds, 343 Ga. App. 274" \s "Graham v. Reynolds, 343 Ga. App. 274" \c 1 Husband and representative of decedent’s estate, brought a claim against an emergency room physician, Dr. James Graham, alleging Dr. Graham had negligently misdiagnosed decedent’s cardiac condition, causing her death. Decedent, Lakeither Thomas presented to the emergency room complaining of chest pains and nausea. Dr. Graham ordered an electrocardiogram. Dr. Graham diagnosed Ms. Thomas with anxiety or panic attacks and discharged her. Ms. Thomas was still experiencing dry heaves and chest pains. Her symptoms continued to worsen upon discharge and within a few hours she returned to the hospital. Following a second electrocardiogram, Dr. Graham assessed Ms. Thomas as being in cardiac distress, and placed her in an ambulance to travel to another hospital approximately 90 miles away for more comprehensive care. While in the ambulance, Ms. Thomas suffered a massive heart attack and died. Defendant, Graham filed a motion to dismiss the action on two grounds: (1) Plaintiff’s affiant was not competent to testify; and (2) The affidavit was insufficient for failure to address gross negligence. The Trial Court denied Defendant’s Motion to dismiss. The Court of Appeals affirmed the Trial Court’s ruling on Dr. Graham’s Motion to Dismiss. The Court held the Plaintiff’s affiant was competent to testify pursuant to O.C.G.A. § 24-7-702. The Court held O.C.G.A. § 24-7-702 does not require the affiant to be a member of the same specialty as the Defendant physician, instead, it simply requires the affiant be a member of the same profession. Additionally, the Court held that the recent practice or teaching subsections of O.C.G.A. 24-7-702 do not require the Plaintiff’s expert to have knowledge and experience in the same area of practice/specialty as the defendant doctor, but instead means that the expert must have knowledge and experience in the practice or specialty that is relevant to the acts or omissions that the plaintiff alleges constitute malpractice and caused the plaintiff’s injuries. The Court of Appeals also held that an expert affidavit is not required to assert gross negligence to meet the requirements of OCGA 9-11-9.1. In order to satisfy OCGA 9-11-9.1, an expert affidavit must set forth “at least one negligent act or omission claims to exist and the factual basis for each claim.”Ziglar v. St. Joseph's/Candler Health Sys., Inc., 341 Ga. App. 371, 800 S.E.2d 395 (2017) TA \l "Ziglar v. St. Joseph's/Candler Health Sys., Inc., 341 Ga. App. 371, 800 S.E.2d 395 (2017)" \s "Ziglar v. St. Joseph's/Candler Health Sys., Inc., 341 Ga. App. 371, 800 S.E.2d 395 (2017)" \c 1 .Plaintiff brought a medical malpractice action against the hospital, alleging that the hospital, nurses, and support staff were liable for failing to properly assess and treat a stage IV sacral ulcer that developed during his stay while he was unconscious. The Superior Court granted the hospital’s motion to dismiss patient’s claim for failure to file a sufficient expert affidavit, and the Plaintiff appealed.With the Complaint, Plaintiff filed an affidavit of an expert nurse. The hospital answered and filed a motion to dismiss under O.C.G.A. § 9-11-9.1 based on the failure to set forth at least one negligent act or omission and the factual basis for the allegation. The following was the pertinent paragraph from the affidavit:“Based on my review of the above-described medical records, it is my opinion within a reasonable degree of medical probability that the staff of St. Joseph’s Hospital failed to exercise the standard of care and degree of skill possessed, exercised and employed by the medical profession generally and nurses and support staff with regard to nursing care of patients in medical facilities especially, under similar conditions and like circumstances, by negligently failing to: (1) properly assess and treat [Plaintiff’s] wounds; and (2) appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.”The Court held that this paragraph and the rest of the affidavit were deficient because the affidavit did not specify discrete instances of alleged “failure to . . . treat, assess, and advocate.” Likewise, the affidavit did not include any factual basis, such as dates and times. Plaintiff attempted to argue that the case was really one for simple negligence, but the Court disagreed, thus upholding the Superior Court’s granting of the hospital’s motion to dismissExpert WitnessesSmith v. Braswell, 342 Ga. App. 700, 804 S.E.2d 709 (2017) TA \l "Smith v. Braswell, 342 Ga. App. 700, 804 S.E.2d 709 (2017)" \s "Smith v. Braswell, 342 Ga. App. 700, 804 S.E.2d 709 (2017)" \c 1 .Plaintiff’s son began having seizures after his birth, and a CT scan revealed injuries to his brain. Plaintiff sued the midwife who cared for her during her labor and delivery, along with her employer, Atlanta Women’s Health Group, alleging she was negligent in the management of Plaintiff’s labor and delivery.Among the expert witnesses Plaintiff disclosed was Dr. Barry Schifrin, who opined her son’s injury was the result of ischemia caused by “mechanical compressive forces” on his head during her labor. Schifrin coined the term “cranial compression ischemic encephalopathy” (CCIE) to describe the mechanism of the child’s injury.The Defendants filed a motion seeking to exclude Schifrin’s testimony, and the State Court granted the motion, finding that the testimony regarding the mechanism of injury is inadmissible pursuant to Official Code of Georgia Annotated Section 24-7-702 (b), OCGA § 24-7-702 (b), and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), because Schifrin’s theory was not reliably tested, subject to peer review or clinically diagnosed in any other patients and is not generally accepted in the scientific community.Defendants also filed a motion to exclude the causation testimony from Plaintiff’s other expert witnesses, Dr. Daune MacGregor, a pediatric neurologist, and Dr. Thomas Paul Naidich, a neuroradiologist, and a motion for summary judgment.The State Court granted the defendants’ motion to exclude MacGregor’s and Naidich’s testimony after finding that all testimony as to the alleged mechanism of injury should be excluded. The court also awarded Defendants summary judgment, and Plaintiff appealed.In affirming in all respects, the Court of Appeals held that the State Court properly excluded Schifrin’s opinions and CCIE testimony. The panel pointed out that Schifrin himself stated during his deposition that there have not been any long-term epidemiological studies on the CCIE mechanism of injury or its potential cause of injury. In addition, Plaintiff’s other medical experts stated that they had never seen any peer-reviewed literature on the alleged mechanism of injury or heard of any other patient being diagnosed with CCIE.The panel also said the trial court properly granted the Defendants summary judgment because Plaintiff cannot maintain a medical negligence action in the absence of expert medical causation testimony.Hospital ChargesWellstar Kennestone Hospital v. Roman, --- Ga. App. ---, 2018 WL 617035 (January 30, 2018) TA \l "Wellstar Kennestone Hospital v. Roman, --- Ga. App. ---, 2018 WL 617035 (January 30, 2018)" \s "Wellstar Kennestone Hospital v. Roman, --- Ga. App. ---, 2018 WL 617035 (January 30, 2018)" \c 1 :Plaintiff, Autumn McKinney sued Mario Roman for injuries alleging sustained in an auto accident caused by Defendant. Defendant sent a Notice of Deposition of Non-Party to the hospital where Plaintiff was treated following the accident directing the hospital to provide an officer or employee to testify regarding its “rates or charges for those services ... if provided to uninsured patients; to insured patients; to patients under worker’s compensation plans; to patients under Medicare or Medicaid plans; and to litigant and non-litigant patients[.]”. The hospital filed a motion to modify on the round that the information requested by Defendant was not reasonably calculated to lead to the discovery of admissible evidence and more specifically argued that money written off by the hospital was a collateral source and inadmissible to mitigate a tortfeasor’s damages. The Trial Court found the information sought by Defendant was not barred by the collateral source rule. The Trial Court denied the hospital’s motion to modify the subpoena and further ordered that while Plaintiff could make arguments and offer opinions at trial on the reasonableness of Plaintiff’s medical fees, Defendant was not allowed to present evidence regarding the existence of insurance or insurance payment that had been received. Additionally, the Trial Court held that evidence by any non-party of fees charged to any other persons, i.e. write offs, refer to the existence or insurance. The Hospital appealed the ruling arguing the Trial Court erred in finding that the evidence Defendant sought- how much the hospital is willing to write off its hospital bills for different types of patients- is discoverable because it is not barred by the collateral source rule. The Court of Appeals held that the Trial Court did not abuse its discretion. The Court of Appels emphasized that the non-party hospital misstated the Trial Court’s ruling. The Court of Appeals emphasized that the Trial Court stated Defendant would be precluded from introducing evidence of the hospitals write-offs of Plaintiff’s medical treatment and that the Trial Court did not rule that Defendant could introduce rates and write offs of third-parties. The Court of Appeals emphasized that the Trial Court had simply found no authority to support the Hospital’s contention that the collateral source barred discovery of the medical rates and charges.IndemnificationFayette County Nursing Home, LLC. V. PRI X-Ray, LLC, 342 Ga. App. 143 TA \l "Fayette County Nursing Home, LLC. V. PRI X-Ray, LLC, 342 Ga. App. 143" \s "Fayette County Nursing Home, LLC. V. PRI X-Ray, LLC, 342 Ga. App. 143" \c 1 Appeal arising out of a breach of contract case filed by a nursing home, Southland Health & Rehabilitation Clinic, against PRI, a third party who performed x-rays and ultrasounds for failure to indemnify the nursing home in an underlying lawsuit. In 2013, patient Jorgenson was sent to Southland for a 30-day rehabilitation stay following surgery. For four day, Jorgenson did not have a bowel movement, she was given a laxative without results, and began experiencing degrading function during rehabilitation exercises. Jorgenson’s treating physician ordered a chest x-ray, kidney, ureter, and bladder x-ray to rule out obstruction. The x-rays were interpreted by a Dr. Farah Williams who informed PRI of a “critical finding” and expressed Jorgenson’s treating physician needed to be informed of the finding immediately. Neither PRI nor Dr. Williams contacted Southland. At 12:03 a.m. a Southland nurse noted she contacted Jorgenson’s treating physician via answering service but it is unclear if the treating physician was notified until making rounds at approximately 11:30 in the morning. The treating physician requested Jorgenson be transferred to the hospital to rule out a bowel perforation; Jorgenson underwent surgery for her perforation and died from sepsis. Jorgenson’s estate filed suit against various parties including Southland but not PRI. Jorgenson’s Complaint alleged negligence, professional negligence, breach of contract, and wrongful death. Southland notified PRI of Jorgenson’s suit but PRI refused to indemnify Southland for Jorgenson’s claims. Southland settled with Jorgenson and filed suit against PRI for breach of contract based on failure to defend and indemnify Southland under their contractual agreement.Section 12 of the agreement stated; “PRI…covenants and agrees to fully defend, protect, indemnify, and how harmless [Southland]…on account of personal injury, death, property damage or worker’s compensation claim caused by, arising out of or in any way incidental to, or in connection with the independent contractor relationship between PRI…and [Southland] or in the performance of laboratory services hereunder…The Court of Appeals construed “arising out of” to mean ‘had its origins in’ or ‘grew out of’ and to encompass ‘almost any causal connection or relationship.’ Thus the Court of Appeals held PRI was required to defend and indemnify Southland against claims filed in connection with Jogenson’s death. The Court of Appeals held that based on the broad language of the indemnity clause, PRI was responsible for providing indemnity for all claims “caused by, arising out of or in any way incident to, or in connection with the independent contractor relationship between PRI…and [Southland] or in the performance of laboratory services hereunder. Medical Staff PrivilegesKolb v. Northside Hospital, 342 Ga. App. 192 TA \l "Kolb v. Northside Hospital, 342 Ga. App. 192" \s "Kolb v. Northside Hospital, 342 Ga. App. 192" \c 1 A plastic surgeon brought action against Northside Hospital for breach of contract, negligence, and tortious interference with business and contractual relations arising out of the suspension of her medical staff privileges. Dr. Susan Kolb, a surgeon at Northside Hospital had her medical staff privileges suspended as a result of potential substance abuse or psychiatric issues following statements made to a witness she had had multiple assassination attempts; she wore a gun to protect against assassination attempts; the government was after her for removing a microchip implanted in a patient; she was the reincarnation of Lizzie Borden; the military wanted to her to conduct remote viewing through out of body experiences; and she uses psychic powers to help find things.Defendant, Northside Hospital moved for summary judgment on basis that Dr. Kolb is barred from recovery of any money damages against Northside Hospital under the federal Health Care Quality Improvement Act of 1986 (HCQUIA). The Trial Court granted summary judgment and Dr. Kolb appealed. The Court of Appeals affirmed the Trial Courts grant of summary judgment to Northside Hospital. The HCQUIA provides immunity from monetary damages for professional review actions taken (1) in the reasonable belief that the action was in furtherance of quality healthcare, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts and after meeting the requirements of paragraph (3). 42 USC § 11112(a). In determining if the HCQUIA provided Northside Hospital with immunity, the Court of Appeals applied the standard set forth in Patton v. St. Francis Hosp. 260 Ga. App 202 (2003), stating HCQUIA “grants broad discretion to hospitals with regard to staff privilege decisions, and our role on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweight the evidence regarding the termination of medical staff privileged. Id. at 207-208. The Court of Appeals held that Dr. Kolb had failed to overcome the presumption that the hospital’s professional review committee acted in a reasonable belief that her suspension was in furtherance of quality health care, and she failed to overcome the presumption the hospital suspended her clinical privileges only after a reasonable effort to obtain the facts of the matter.Ordinary v. Professional NegligenceSe. Pain Specialists, P.C. v. Brown, No. S17G0732, 2018 WL 1143818 (Ga. Mar. 5, 2018) TA \l "Se. Pain Specialists, P.C. v. Brown, No. S17G0732, 2018 WL 1143818 (Ga. Mar. 5, 2018)" \s "Se. Pain Specialists, P.C. v. Brown, No. S17G0732, 2018 WL 1143818 (Ga. Mar. 5, 2018)" \c 1 The Decedent’s husband sued the defendants individually and on behalf of his wife “after she suffered catastrophic brain damage allegedly from oxygen deprivation while undergoing a procedure to relieve back pain.” Specifically, the decedent sought treatment for chronic back pain from Dr. Dennis Doherty, an anesthesiologist and pain management specialist, in 2008. Doherty performed two epidural steroid injection procedures previously without incident. During a third procedure, the pulse oximeter that was used to monitor the Decedent’s blood oxygen saturation level sounded an alarm, indicating a drop in her blood oxygen levels.The Defendant allegedly continued with the procedure and the decedent was later admitted to the hospital with catastrophic brain injury cause by oxygen deprivation. She remained profoundly cognitively impaired and a quadriplegic for six years until her death in September 2014. Her husband sued alleging both medical malpractice and ordinary negligence. At trial, the court instructed the jury on both ordinary negligence and medical malpractice, and resulted in an award of nearly $22 million dollars. A divided Court of Appeals affirmed, so the defendants asked the Supreme Court to decide “whether a jury considering a medical malpractice case might also be instructed on issues of ordinary negligence.” In its ruling on that issue, the Georgia Supreme Court wrote that the “plaintiffs’ case of medical malpractice was very strong. But a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice."Therefore, the Court of Appeals erred in concluding that an ordinary negligence instruction was authorized by evidence that a doctor responded inadequately to medical data from equipment that was monitoring the patient’s oxygen levels during the procedure.Because the verdict was a general one such that the Court could not determine that the jury did not rely on this erroneous theory of liability, it reversed with instructions that the Court of Appeals on remand order a full retrial as to the appellants.St. Mary's Health Care Sys., Inc. v. Roach, No. A17A1582, 2018 WL 1125719 (Ga. Ct. App. Mar. 2, 2018), reconsideration denied (Mar. 16, 2018) TA \l "St. Mary's Health Care Sys., Inc. v. Roach, No. A17A1582, 2018 WL 1125719 (Ga. Ct. App. Mar. 2, 2018), reconsideration denied (Mar. 16, 2018)" \s "St. Mary's Health Care Sys., Inc. v. Roach, No. A17A1582, 2018 WL 1125719 (Ga. Ct. App. Mar. 2, 2018), reconsideration denied (Mar. 16, 2018)" \c 1 .Parents of patient, who died as a result of an aortic dissection after discharge from hospital’s emergency room, brought action against the hospital for negligence, alleging that the hospital’s radiology policy improperly provided that x-rays ordered after regular business hours would not be interpreted by a radiologist until the next morning. The hospital moved for summary judgment, which the trial court denied. The hospital filed application for interlocutory review, which was granted and the Court of Appeals reversed, granting the Hospital’s motion for summary judgment.In reversing the trial court, the Court of Appeals noted the Plaintiffs’ complaint raises questions as to whether the hospital’s radiology policy should have required a radiologist to be on-site at all hours to review and interpret x-rays in emergency cases; whether the hospital’s radiology policy should have mandated immediate review of all x-rays by a radiologist; and whether the hospital’s radiology policy improperly allowed an emergency room physician, regardless of training and experience, to accurately interpret x-rays and to discharge a patient based solely on that physician’s opinion, independent of further review by a radiologist.Upon review of these questions, the Court found the evidence established that the hospital’s policy allowed for an immediate consult with a radiologist, but one of the defendant doctors exercised her medical judgment when she decided that one was not necessary. Therefore, the hospital’s decision on how and when it would provide a radiologist to interpret x-rays of its patients was not a purely administrative act, but involved the exercise of professional knowledge and judgment. As such, the Court held that this was a professional negligence case because the Plaintiffs’ argument is that the very execution and implementation of the radiology agreement was negligent. The only way to properly allege and ultimately establish the hospital’s negligence, is with expert testimony explaining how the “Radiology Service Agreement,” which does not require the defendant to have a radiologist on-site at all times, falls below the standard of care. As such, the Court held it was error for the trial court to deny the hospital’s motion for summary judgment.Professional v. Simple NegligenceJordan v. Everson, 302 Ga. 364 TA \l "Jordan v. Everson, 302 Ga. 364" \s "Jordan v. Everson, 302 Ga. 364" \c 1 Mentally ill patient presented to the room hearing voices and hallucinating. He was diagnosed with obsessive-compulsive disorder and discharged that afternoon. Defendant physician recommended a mental health evaluation at a nearby mental health facility. Defendant physician made an appointment for patient at a nearby mental health facility. However, patient’s mother contacted a psychiatrist at Duke University, made an appointment for patient, and began driving him to the appointment. During the drive to the appointment, the patient leaped from the moving car, ran down the highway, was struck by a vehicle, and killed. Patient’s parents filed suit against Defendant physician who attended to the patient two days prior to his death. The trial court denied Defendant physician’s motion for summary judgment. Defendant appealed and the Court of Appeals overturned the trial court holding that an independent, intervening act breaks the chain of causation in a wrongful death case only to the extent that the independent, intervening act is “wrongful or negligent.” Writ of Certiorari was granted.The Supreme Court held the ruling of the Court of Appeals was erroneous and in conflict with longstanding Georgia precedent. The Supreme Court held that whether or not the intervening act of a third person will render the earlier act too remote depends simply upon whether the concurrence of such intervening act might reasonably have been anticipated by the defendant. There is no requirement in Georgia that an intervening act be “wrongful or negligent” to break the causal chain.Roberts v. Quick Rx Drugs, Inc., 343 Ga. App. 556, 807 S.E.2d 476 (2017) TA \l "Roberts v. Quick Rx Drugs, Inc., 343 Ga. App. 556, 807 S.E.2d 476 (2017)" \s "Roberts v. Quick Rx Drugs, Inc., 343 Ga. App. 556, 807 S.E.2d 476 (2017)" \c 1 .Plaintiff’s wife went to the pharmacy to pick up his prescriptions. The cashier handed her two filled bottles through a drive-through window. However, the bottles were for a different patient and for different medications.The following day, Plaintiff’s wife administered the medication to her husband, who was suffering from Alzheimer’s disease, diabetes, and high blood pressure. A little while later, she heard him call her name. She found her husband on the floor, confused. There was nothing in the area that would have caused him to fall. She called an ambulance and he was taken to the hospital for emergency surgery for a broken hip. The prescription error was later discovered and Plaintiffs sued Quick Rx for professional negligence, simple negligence, and punitive damages. The trial court granted summary judgment on the professional negligence and punitive damages claims.Regarding the medical malpractice claim, Plaintiffs’ pharmacy expert testified the standard of care required a pharmacist or their delegate to counsel the person picking up the medication about the medication and to match the patient with the prescription. This is part of a Georgia regulation. However, the expert did not rely on any facts to show this was not done or that it was not done by the pharmacist or their delegate. Accordingly, the trial court did not err in granting summary judgment.The Court held that the cashier’s failure to give the correct prescription to Plaintiff’s wife was a jury question on simple negligence. But, the same claim would not support a claim for punitive damages, so summary judgment was affirmed.Slip and Fall/PremisesSt. Joseph's Hosp. of Atlanta, Inc. v. Hall, 344 Ga. App. 1, 806 S.E.2d 669 (2017), reconsideration denied (Nov. 16, 2017) TA \l "St. Joseph's Hosp. of Atlanta, Inc. v. Hall, 344 Ga. App. 1, 806 S.E.2d 669 (2017), reconsideration denied (Nov. 16, 2017)" \s "St. Joseph's Hosp. of Atlanta, Inc. v. Hall, 344 Ga. App. 1, 806 S.E.2d 669 (2017), reconsideration denied (Nov. 16, 2017)" \c 1 Plaintiff slipped and fell on black ice in the parking deck of the hospital several days after a snow storm, injuring his elbow and his shoulder. The trial court denied the hospital’s motion for summary judgment, and the hospital appealed. The Court of Appeals reversed, granting the hospital’s summary judgment motion.Specifically, the trial court held there was a question of fact as to whether the hospital had superior knowledge of the patch of black ice on which Plaintiff fell and whether its remedial efforts to clear the parking deck of snow and ice contributed to the icy conditions. In order to prove the hospital had superior knowledge, Plaintiff would have to show it (1) had actual or constructive knowledge, and (2) Plaintiff, despite exercising ordinary care for his own personal safety, lacked knowledge of the hazard due to the hospital’s actions or conditions under the hospital’s control. The Court held, “[a]lthough visible snow and ice remained in areas in and around the parking deck, the evidence does not show that either [Plaintiff or the hospital] had actual knowledge of the specific invisible ice hazard that caused [Plaintiff’s] fall.” As for constructive knowledge, Plaintiff would have to show (1) a [hospital] employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by [the hospital’s] employees should have discovered it.” In this case, there is no dispute that no employee was in the immediate area. As for the second factor, the Court held the hospital showed it had a reasonable inspection procedure in place under the conditions, which was carried out on the day of the fall. Therefore, Plaintiff failed to prove actual or constructive knowledge on the part of the hospital.As for the issue related to remedial efforts, in slip and fall cases involving ice in winter weather, the Court of Appeals has held that where the accumulation of ice “on a premises is naturally occurring and not attributable to any affirmative action on the proprietor's part, the proprietor has no affirmative duty to discover and remove it in the absence of evidence that it had become an obvious hazard by means other than natural accumulation.” Here, the trial court determined that this rule did not apply because the hospital’s remedial efforts caused ice on the parking deck to unfreeze and refreeze each evening and thus the ice was not simply a result of natural accumulation. But the hospital’s remedial efforts did not create ice that had not accumulated naturally; the accumulation was ice before it was treated and if the surface did not completely dry before temperatures dropped again, it naturally became ice again. This is not a situation where the hospital created ice that was not already there.Statute of LimitationsHospital Authority of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13 (multiple holdings, however, only applicable holding discussed below ) TA \l "Hospital Authority of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13 (multiple holdings, however, only applicable holding discussed below )" \s "Hospital Authority of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13 (multiple holdings, however, only applicable holding discussed below )" \c 1 On May 18, 2009, Plaintiff presented to Defendant hospital, where he underwent an ultrasound for his carotid arteries. Plaintiff’s ultrasound was performed by a sonographer employed by Defendant, Hospital, who sent the documentation to an on-call radiologist. The radiologist interpreted the study as indicating no significant stenosis. Plaintiff was told that his results were normal. On April 7, 2010 Plaintiff suddenly collapsed in his home, unable to move, speak or even recognize his family. He was transported to the hospital where he was diagnosed with having suffered a massive stroke. Plaintiff and his wife brought suit against various defendants less than two years after the April 27, 2010 stroke, seeking damages for medical malpractice and loss of consortium. The defendants answered, denying liability and raised several affirmative defenses including that Plaintiffs were barred by the applicable two year statute of limitation. The Trial Court denied defendants motion for summary judgment on the two year statute of limitation argument. Defendants appealed the denial of their summary judgment. The Court of Appeals held Plaintiff suffered a new injury and affirmed the Trial Court’s denial of the Hospital’s supplemental motion for summary judgment based on the two-year statute of limitation bar. The statute of limitation for medical malpractice actions is set forth in OCGA 9-3-71(a), which provides in pertinent part, that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” The general rule in malpractices cases involving a misdiagnosis that resulted in a failure to properly treat a condition, the “injury” referred to in OCGA 9-3-71(a) occurs at the time of the misdiagnosis. Ward v. Bergen, 277 Ga. App. 256, 258, 626 S.E. 2d 224 (2006). However, Georgia Courts have recognized a limited exception in “cases where a misdiagnosis and failure to provide proper treatment results in the development of a new and different injury than that which existed at the time of the misdiagnosis. Ward, 277 Ga. App at 258. In order for the limited exception to apply, not only must there be evidence that the patient developed a new injury, but he or she must remain asymptomatic for a period of time following the misdiagnosis. Amu v. Barnes, 283 Ga. 549, 552, 662 S.E.2d 113.Lathan v. Hospital Authority of Charlton County, 343 Ga. App. 123 TA \l "Lathan v. Hospital Authority of Charlton County, 343 Ga. App. 123" \s "Lathan v. Hospital Authority of Charlton County, 343 Ga. App. 123" \c 1 Faleshia Lathan as surviving spouse of Robert Lathan brought suit against Defendant, Charlton Memorial Hospital for medical malpractice and wrongful death resulting from a misdiagnosis of gastritis leading to cardiac arrest and ultimately death; and loss of consortium. Plaintiff sought to perfect service on Defendant by serving John Adams, a member of its board who also served as legal counsel. Defendant answered and raised the defense that it had not been properly served with process. Plaintiff voluntarily dismissed the suit in July 2015. On January 4, 2016, Plaintiff refiled suit against the emergency room physician and Charlton Memorial Hospital for medical malpractice, wrongful death, and loss of consortium. The Plaintiff sought to perfect service in the current suit by serving its board member and legal representative, John Adams. The Plaintiff also served the former and current chief executive officers. Hospital Authority filed a motion to dismiss plaintiff’s wrongful death claims on the ground that Plaintiff’s claim was barred by the applicable two year statute of limitations because the current suit had been filed after the limitation period had expired on the wrongful death claims, and the new litigation could not be treated as a renewal action of the original suit because service had not been properly perfected on the hospital in the original suit before the suit was voluntarily dismissed. The Trial Court granted the Hospital’s motion to dismiss holding hospitals are public bodies or organizations that must be served in accordance with OCGA 9-11-4 (e)(5) rather than OCGA 9-11-4(e)(1) and denied plaintiff’s motion for reconsideration and to amend her Complaint. The issue is whether service of process was properly perfected on the Hospital in the prior wrongful death suit, rendering the present suit a valid renewal action. A properly filed action stands on the same footing as the original action with respect to statutes of limitation and therefore if a renewal action is properly filed within six months after dismissal of the original action, it remains viable even though the statute of limitation may have expired. Blier v. Greene, 263 Ga. App. 35, 36(1), 587 S.E.2d 190(2003). Plaintiff’s second lawsuit was filed within six months of the dismissal, however, “to show the right to renew the suit within six months after the dismissal of a prior suit on the same cause of action…it is necessary for the renewal petition to show affirmatively that the former petition was not a void suit. Belcher v. Folsom, 258 Ga. App. 191, 192, 573 S.E.2d 447 (2002). In order for the service to have been properly perfected pursuant to OCGA 9-11-4 (e)(5) the statute requires service on the CEO or clerk of a public body or organization. The Court of Appeals held that because the Hospital was a public body or organization, service could not be perfected by serving John Adams pursuant to OCGA 9-11-4(e)(1)(A), therefore the original suit was void. Because a void suit cannot be renewed outside the statute of limitations, the second suit was barred by the applicable two year statute of limitations. MacDowell v. Gallant, No. A17A1864, 2018 WL 1098299 (Ga. Ct. App. Mar. 1, 2018) TA \l "MacDowell v. Gallant, No. A17A1864, 2018 WL 1098299 (Ga. Ct. App. Mar. 1, 2018)" \s "MacDowell v. Gallant, No. A17A1864, 2018 WL 1098299 (Ga. Ct. App. Mar. 1, 2018)" \c 1 TA \s "MacDowell v. Gallant, No. A17A1864, 2018 WL 1098299 (Ga. Ct. App. Mar. 1, 2018)" TA \s "MacDowell v. Gallant, No. A17A1864, 2018 WL 1098299 (Ga. Ct. App. Mar. 1, 2018)" .Plaintiff had a series of problems with her teeth and was referred to Dr. Gallant, a general practitioner with a specialty in prosthetics, and Dr. Wilson, an oral surgeon. Gallant and Winston worked in different practices and worked on different aspects of Plaintiff’s treatment. Gallant created the treatment plan, and Winston performed the extraction and implant surgeries. After the prostheses were installed in November of 2006, Gallant noticed that they were not properly aligned, but elected not to tell Plaintiff because she had already been through so much. Plaintiff complained to Gallant about problems with the implants in February of 2007, and after Gallant performed several adjustments before sending her back to Winston in November of 2007, when Winston told her there were problems with the reconstruction. In February of 2008, Gallant referred Plaintiff to a different dentist for a second opinion. That dentist recommended additional procedures and surgeries to fix her problems, which she elected to undergo. Plaintiff filed a dental negligence suit against Gallant and the practice he owned in January 2010, claiming professional malpractice, breach of contract, battery and negligence per se. Gallant moved for summary judgment, arguing that MacDowell filed suit outside of the two-year statute of limitations. The trial court granted the motion, and MacDowell appealed, arguing that the statute was tolled because Gallant fraudulently concealed the problems with the implants when he failed to inform her of the issues. Initially, the Georgia Court of Appeals reversed the trial court’s order and Gallant petitioned the Georgia Supreme Court to review the case. The state’s high court then affirmed the appellate court. However, on remand, the high court said the question of whether fraud existed remained undetermined.The trial court then directed the parties to file briefs on the issues of actual notice and the existence of fraud in relation to the tolling of the statute of limitations. After the briefs were filed, the trial court again granted summary judgment to Gallant, finding that Plaintiff had actual notice of the reconstruction issues based on her knowledge that something was “amiss” when she saw Winston – which therefore started the clock for the statute of limitations. MacDowell appealed for a second time to the Court of Appeals. The Court noted Plaintiff was being seen by Gallant, and Winston, a co-treating physician. Thus, although the tolling of the period of limitation as a result of fraud ended when Plaintiff sought the diagnosis of another doctor, ‘[w]here, as here, the doctor consulted is one who has provided professional services to the plaintiff jointly with the defendant, that rationale does not apply,’ unless [Plaintiff] received actual notice of Dr. Gallant’s alleged malpractice from Dr. Winston.’” As such, the Court of Appeals again reversed the trial court, finding that material issues of fact remained as to whether the interactions between Winston and Plaintiff were such that Plaintiff acquired actual notice of Gallant’s malpractice and thus, commenced the running of the statute of limitations.Oller v. Rockdale Hosp., LLC, 342 Ga. App. 591, 804 S.E.2d 166 (2017) TA \l "Oller v. Rockdale Hosp., LLC, 342 Ga. App. 591, 804 S.E.2d 166 (2017)" \s "Oller v. Rockdale Hosp., LLC, 342 Ga. App. 591, 804 S.E.2d 166 (2017)" \c 1 Shirley Nobles was admitted to Rockdale Medical Center on May 7, 2011. Three days later, she was found unresponsive because of a hypoglycemic event. She never regained full neurological function and was discharged to hospice care after being diagnosed with a severe brain injury caused by hypoglycemia. She died June 3, 2011.Plaintiffs sued numerous defendants, claiming wrongful death and negligence, then later dismissed their complaint without prejudice and filed a renewal complaint. In the renewal complaint, they asserted included claims against 24 On (a physician group employing several of the previously named individual physicians) for the first time. However, the expert affidavit report filed with the renewal complaint did not specifically mention 24 On. 24 On filed a motion to dismiss alleging Plaintiffs failed to show “even one negligent act or omission on the part of Defendant 24 On Physicians PC.” In response, Plaintiffs filed a third expert affidavit to specifically include the acts of negligence against 24 On. Plaintiffs later filed a fourth expert affidavit to clarify the allegations against 24 On.24 On then filed a motion for partial summary judgment, saying that the plaintiffs’ claims for vicarious liability should be dismissed because those claims had been asserted after the statute of limitations had expired. The trial court granted the motion and plaintiffs appealed.The Court of Appeals reversed, finding the renewal complaint is the controlling pleading, and because the renewal complaint contemplated physicians other than those specifically named in the initial expert affidavit, the amended expert affidavit did not assert new claims after the expiration of the statute of limitation. The alleged negligence of the “treating physicians” who were agents or employees of 24 On was contemplated in the renewal complaint. Therefore, the language of the fourth amended OCGA § 9-11-9.1 affidavit cannot be considered to state a new claim outside the expiration of the statute of limitation.Swallows v. Adams-Pickett, No. A17A1517, 2018 WL 1007929 (Ga. Ct. App. Feb. 22, 2018) TA \l "Swallows v. Adams-Pickett, No. A17A1517, 2018 WL 1007929 (Ga. Ct. App. Feb. 22, 2018)" \s "Swallows v. Adams-Pickett, No. A17A1517, 2018 WL 1007929 (Ga. Ct. App. Feb. 22, 2018)" \c 1 .The Plaintiff (a juvenile), by and through his parents, filed a medical malpractice complaint against a physician, hospital, and medical office alleging he suffered a left brachial plexus injury during delivery, resulting in a permanent disability to his left arm. The parents later amended the complaint to add individual claims for damages. The trial court granted the defendant’s motion for partial summary judgment on the claims for the Plaintiff’s medical, maintenance, protection and education expenses before he reached the age of 18 and all claims of his parents. The Court of Appeals affirmed, holding the five-year statute of limitation extension applies to the minor’s claims, such as for the child’s pain and suffering. However, there is no extension in the applicable statute for the parents’ claims. Therefore, any of the parents’ claims for damages for their minor child’s medical expenses, and the parents’ ancillary claims such as their own loss of income, are subject to the two-year statute of limitation applicable to medical malpractice actions generally. Therefore, because the parents’ claims were not filed within the time prescribed by the statute of limitations (2 years for medical malpractice, except for a child’s claim, which is 5 years), the trial court correctly found that the individual claims of the parents were time-barred.Witness DisclosureResurgens, P.C. v. Elliott, 301 Ga. 589, 800 S.E.2d 580 (2017), reconsideration denied (June 30, 2017) TA \l "Resurgens, P.C. v. Elliott, 301 Ga. 589, 800 S.E.2d 580 (2017), reconsideration denied (June 30, 2017)" \s "Resurgens, P.C. v. Elliott, 301 Ga. 589, 800 S.E.2d 580 (2017), reconsideration denied (June 30, 2017)" \c 1 .In 2011, Plaintiff filed a medical malpractice lawsuit against Resurgens P.C. and Dr. Tapan Daftaria. Plaintiff alleged that he ended up with paralysis because Dr. Tapan Daftaria chose not to timely diagnose and treat an abscess in his thoracic spine. During the jury trial, Plaintiff attempted to call a nurse who was not identified as a potential witness in his written discovery responses or in the parties’ pre-trial order. The trial judge excluded the nurse as a witness. After the jury returned a defense verdict for the Defendants, Plaintiff appealed to the court of appeals arguing that the trial judge’s exclusion of the nurse was an error. The court of appeals reversed the jury’s verdict and remanded the case for a new trial. The Defendants appealed this decision to the Supreme Court of Georgia.The argument to allow the nurse’s testimony was that her name appeared twice in the voluminous medical records produced during discovery although she was not listed as a potential witness in the pre-trial order, and had not been identified as a potential fact witness during discovery. Plaintiff argued the nurse was generally identified in the “catch all” categories of the pre-trial order, as she was a “treating medical provider and a person named in the medical records.” Plaintiff also argued she should be allowed to testify because she was also being called as an impeachment witness to dispute a statement made by the defendant doctor. The Supreme Court concluded that although there was no evasive discovery response made by Plaintiff, there was a deliberate suppression of the name of a material witness. In addition, the Supreme Court said there was no abuse of discretion in imposing the state’s procedural rule of excluding the witness as a sanction for not disclosing her name prior to trial. ................
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