MEDICAL MALPRACTICE: YEAR IN REVIEW

2018
Lyle Griffin Warshauer
Warshauer Woodward Atkins, P.C.
Atlanta, GA

The following is a list of appellate decisions issued in the past year in medical malpractice cases.

Expert Testimony/ Expert Affidavit

Holmes v. Lyons, 346 Ga. App. 99, 815 S.E.2d 252 (June 1, 2018)

The plaintiff filed suit alleging that she suffered injuries during a gynecological procedure performed by the defendant. Her claims included allegations of fraud, negligent misrepresentation and battery, based on her assertion that the defendant physician was physically compromised at the time of the surgery, but had failed to advise the plaintiff of his limitations prior to her agreeing to undergo the procedure. The Complaint attached documentation submitted in connection with an unrelated disability claim filed by Defendant Lyons, which purported to demonstrate his inability to practice surgery. The plaintiff also attached the affidavit of an expert, Dr. Kasper, who averred that Dr. Lyons breached the standard of care by performing surgical procedures on the plaintiff “even though he was not capable of performing them in a manner that was safe,” or that “did not put Holmes at risk for complications, including ureteral injury and uterovaginal fistulas.” Dr. Kasper further opined that Dr. Lyons was negligent in failing to inform the plaintiff of his “identified and admitted disabilities,” and failed to inform her of practical alternatives, including the possibility of having another physician do the surgery. She then concluded that the various failures caused the complications suffered by the plaintiff. Dr. Kasper thereafter submitted two amended affidavits, and specifically stated that the complications were a direct result of the defendant’s physical limitations and secondary to deficient surgical technique related to Dr. Lyon’s decreased motor function.

The trial court granted the defendants’ motions to dismiss, finding that Dr. Kasper’s affidavit failed to specify at least one negligent act or omission committed by Dr. Lyons. Further, the court determined that under Georgia law a physician’s failure to disclose to a patient “negative life factors,” which might adversely affect his professional performance, could not serve as a basis for claims of fraud, negligent misrepresentation of battery.

The Court of Appeals reversed, finding the Affidavit sufficiently described the acts of negligence and the nature of the injuries caused by the defendant. Although the Court acknowledged that “an unfavorable construction of this affidavit may be possible,” the court could not conclude that the affidavit “discloses with certainty that the plaintiff was not entitled to relief under any state of provable facts.” The fact that the affidavit did not specifically state that the defendant’s technique resulted in a cut to the ureter was not fatal to the suit because “O.C.G.A. § 9-11-9.1 does not require an affiant to specifically opine that the act constituted negligence.”

As to the fraud claims, the Court found the defendant’s reliance on Albany Urology Clinic v. Cleveland, 272 GA. 296 (2000) was misplaced, because Albany does not state that a physician never has a duty to disclose negative information about his personal life to patients. Rather, it held that the failure to make disclosures that are not required under the Informed Consent Doctrine does not give rise to an independent cause of action. Because the Albany decision specifically contemplated that “obtaining consent for medical treatment by an artifice that is directly related to the subject matter of the professional relationship – i.e.: diagnoses, treatments, procedures – may result in an unlawful touching that supports a battery claim,” the Court viewed the facts with that in mind and found that the plaintiff had set forth sufficient facts to survive the motion to dismiss.

Opinion by: Phipps (Senior Judge), Ellington and Bethel (Concurring in part, Dissenting in part)

• GTLA submitted an Amicus brief in support of the Appellant in this case.
• Cert Petition is Pending

Cruz Pico v. Brady, 345 Ga. App. 859, 815 S.E.2d 190 (May 23, 2018)

The plaintiff filed suit on August 1, 2016 for injuries resulting from a cervical node excision performed by the defendant on August 1, 2014. The plaintiff did not attach a 9-11-9.1 affidavit; rather, her attorney, Mr. McClurg, submitted his own affidavit stating that he was not retained until July 29, 2016 and thus was not able to secure the expert affidavit prior to the expiration of the statute of limitations. The defendant moved to dismiss, alleging that the plaintiff had in fact retained her attorney at least by December 16, 2014, as reflected by an authorization form provided to the defendant, signed by the plaintiff on that date and directing that defendant release plaintiff’s information to her attorney, Mr. McClurg, for the purposes of litigation. The plaintiff responded to the motion and attached a “new client questionnaire,” also dated December 16, 2014 in which she acknowledged that “no attorney-client relationship exist[ed] between [McClurg] . . . until such time as a written Legal Services Contract is entered into.” The trial court denied the motion to dismiss.

Despite that fact that the plaintiff’s attorney had clearly been evaluating the case on behalf of the plaintiff for well over a year, because the plaintiff did not actually “retain” McClurg until July 2016, the Court of Appeals found that the application of O.C.G.A. § 9-11-9.1(b) was authorized. “The defendants’ argument that, in December 2014, “[plaintiff] sought the counsel of Mr. McClurg regarding the merits of her potential claim does not conflict with or contradict the trial court’s finding that [plaintiff] did not “retain” McClurg to file this suit until July 2016.”

Opinion by: Reese, Miller and Brown

Wentz v. Emory Healthcare, Inc., 347 Ga. App. 302, 817 S.E.2d 296 (September 17, 2018)

In this case, the court once again considered the dismissal provision in O.C.G.A. § 9-11-9.1(e). Wentz originally filed his medical malpractice action in February 2017, alleging that two unidentified nurses employed by Emory negligently removed his catheter, causing him to be injured, and attaching an affidavit to the complaint. On March 28, 2017 Emory filed an answer, along with a motion to dismiss, arguing the affidavit was insufficient, in that the affiant failed to set forth his experience as required by Rule 702. On May 2, 2017, Wentz voluntarily dismissed his case without prejudice. The following day, Emory moved to strike Wentz’s dismissal, arguing that because Wentz failed to amend his expert affidavit within 30 days, 9-11-9.1 (e) required that his complaint be dismissed with prejudice.

Wentz refiled his complaint on July 13, 2017 and attached a new affidavit from his expert, which contained additional information about the expert’s experience. Emory filed a motion to dismiss the new suit, arguing that the renewal action was barred by res judicata because the original action could only have been dismissed with prejudice. Almost five months after the voluntary dismissal, the trial court entered an order that both converted Wentz’s original dismissal to one with prejudice, and dismissed the renewal action.

Plaintiff appealed, arguing that his dismissal without prejudice was a matter of right, and once dismissed, the trial court had no power to convert or modify it. The Court of Appeals agreed.

Pursuant to subsection (e), Wentz had until April 27, 2017 to amend the alleged defect in the affidavit, or his complaint could be subject to dismissal for failure to state a claim. While Wentz’s suit was at risk of being dismissed, because he did not amend the affidavit. However, the trial court did not act on Emory’s motion prior to the time Wentz voluntarily dismissed the case. That dismissal concluded the matter “as a matter of law.” The court rejected the defendant’s argument that if the affidavit is not amended within the 30 days the defect becomes incurable, and thus could not be saved by a voluntary dismissal. Because the statute says the complaint shall be “subject to dismissal,” the trial court has discretion to dismiss if there is no amendment. “This discretion, however, is not absolute. That is, it requires the trial court to take action while the case is still pending.” Here, once the voluntary dismissal was filed, “the trial court had no power to modify, change, or convert what was a closed case.”

Opinion by: Bethel, Ellington and Gobeil.

Ordinary Negligence

Southeastern Pain Specialists, P.C. v. Brown, 303 Ga. 265, 811 S.E.2d 360 (March 5, 2018)

This case addressed the issue of when a jury considering a medical malpractice case may also be instructed on issues of ordinary negligence. Brown sued the defendants on behalf of his wife after she suffered catastrophic brain damage, allegedly from oxygen deprivation while undergoing back surgery. Mrs. Brown died while the case was pending, and the wrongful death claim resulted in a verdict of $22 Million. The jury was instructed on both ordinary negligence and medical malpractice. The defendant appealed, asserting that the evidence did not support a claim of ordinary negligence. The Supreme Court granted cert to review the divided COA’s decision affirming the verdict, and reversed.

The Supreme Court acknowledged 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.” The Court concluded that the COA “erred in concluding that an ordinary negligence instruction was authorized by evidence that a doctor defendant responded inadequately to medical data provided by certain medical equipment during a medical procedure.” Because the jury returned a general verdict, the court could not find that the jury did not rely on the erroneous theory; thus, the Court ordered a new trial.

The facts of this case are interesting, and certainly very compelling. There were issues of impairment on the part of the surgeon and intriguing testimony of an apparent cover up. Those facts are beyond the scope of this brief summary, but worthy of a full read. The Court’s discussion of the harmful effect of the ordinary negligence jury instruction, in light of the remaining malpractice claims deserves a more in-depth review as well; as is the issue of how the case is to be retried.

Opinion by: Peterson (all Justices concurred, except Boggs, disqualified)

• GTLA submitted an amicus brief in support of the Appellees.

Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719, 237 S.E.2d 237 (November 2, 2017)

Plaintiffs brought wrongful death actions alleging ordinary and medical negligence against the owners, operators and employees of a psychiatric treatment facility that treated and released a patient who later killed two people. The trial court dismissed the complaint on the ground that the claims barred by the medical malpractice statute of repose and 9-11-9.1.

The case arose out of the killing of Donna Kern and William Chapman by Amy Kern, who had an extensive mental health history, including violent conduct. She had been an involuntary patient at Focus, a private psychiatric facility, on several occasions between 2008-2009. The first occurred after an attempted suicide. Later, after chasing her boyfriend with an axe, Amy was arrested and, as a condition of her release, ordered to return to Focus for treatment. When she again threatened violence against her boyfriend, Amy was again involuntarily committed to Focus by emergency room staff. In February 2009, twelve days after her discharge from her third admission to Focus, Amy killed her grandmother and her aunt’s boyfriend.

In 2011, Plaintiffs sued the Corporate Defendants, HHC, Amy’s treatment providers, and a pharmaceutical company for wrongful death. The original complaint alleged both medical and ordinary negligence, and included an affidavit from a standard of care expert. In 2013, after the corporate defendants filed a motion for summary judgment, but before a ruling on the motion, plaintiffs voluntarily dismissed the corporate defendants. Plaintiffs then filed a renewal action in 2014 raising the same allegations from the original complaint; but plaintiffs did not attach an expert affidavit. The trial court then consolidated the original action with the renewal action and amended the complaint to add the corporate defendants. In 2015, Plaintiffs filed their second amended complaint, the corporate defendants moved to dismiss, and the trial court granted the motion.

The Plaintiffs maintained that the trial court erred in construing the complaint as a medical malpractice claim because the failure to comply with statutory notification and discharge requirements pursuant to O.C.G.A. §§ 37-3-4, 24 & 95 did not involve the exercise of professional judgment. The Court of Appeals agreed, and reversed.

The statutory provisions at issue relate to the admission, discharge and transfer of psychiatric patients, including those who are under criminal charges, and impose certain notice requirements to law enforcement when the patient is being discharged. The Court found that the complaint alleged that the defendants violated these statutes, thus committing negligence per se, when they failed to provide notice of discharge to either the court that involuntarily committed Amy in 2008 and 2009 or the law enforcement agencies having control over her following her arrest. In dismissing the case, the trial court found that the negligence per se claim was subject to the medical malpractice statute of repose, as well as the expert affidavit statute. However, the appellate court held that the underlying negligent or wrongful act upon which the claim was based did not arise out of care or treatment intended to benefit Amy; rather, it arose out of a statutory duty to give notice. Because the claim did not sound in medical or professional malpractice, it follows that it could not be barred by the repose period of affidavit requirements related to medical malpractice.

Further, the court agreed that the plaintiffs had stated a claim for relief pursuant to the principles of Bradley Center v. Wessner, 161 Ga. App. 576 (1982), which established an exception to the general rule that there is no duty to control conduct of third persons to prevent them from causing physical harm to others. Specifically, due to the special relationship between a mental health provider and the patient, the provider owes a duty to third parties. Because the record established that the mental health providers were aware that Amy posed a threat of danger to herself and others, they had knowledge that she was likely to cause harm if not controlled. Significantly, the court held that it was not necessary for the patient to make specific threats to specific person for the exception to apply. Finally, the court noted that a claim for relief under the principles set forth in Bradley Center sounds in ordinary negligence rather than medical malpractice.

Opinion by Bethel, McFadden and Branch.

• GTLA submitted an Amicus brief in support of the appellants in this case.

St. Mary’s Health Care System v. Roach, 345 Ga. App. 374, 811 S.E.2d 93 (March 2, 2018)

Roach arrived at St. Mary’s Emergency Department with complaints of chest pain, nausea, and fever. Chest x-rays were ordered and read by Dr. Smith, an ER physician, who noted an enlarged heart and no infiltrates. Roach was discharged about 2 hours after arrival with instructions to follow up with his PCP. The next day, a radiologist interpreted the chest x-ray, and noted the heart size was normal, but some opacity in the suprahilar region, and recommended a chest CT. That same day, and less than 24 hours after being discharged, Roach collapsed at home. He was transported back to the hospital where hewas declared dead. An autopsy revealed he died from an ascending aortic dissection.

Plaintiffs originally filed a medical malpractice actions against the ER providers, and attached an affidavit indicating that the aortic dissection would have been visible on a contrast CT had one been done. The plaintiffs later amended the complaint to add the hospital as a defendant, alleging that the hospital’s imaging system did not allow for x-rays that are ordered after 11:00 pm on a Friday to be interpreted until the next morning, unlike those ordered during regular hours. No additional affidavit was included with the amended complaint.

The hospital had a radiology services agreement with Athens Radiology, which provided 24/7 on call radiology services; and further provided that the group could contract with a teleradiology physician or group to preliminarily interpret scans from 11:00 pm until 8:00 am on weekends. The radiology group would also be available for consults at any time, either in person or remotely.

The hospital filed a motion for summary judgment asserting that the claims were based on professional negligence, and there was no evidence that the services were “unreasonable.” Plaintiffs countered that the policy was simply the product of a business negotiation and no physicians were involved in the creation of the policy.

The trial court denied the motion; however, the Court of Appeals reversed. The court found that the complaint raised questions as to whether the hospital’s radiology policy should have required a radiologist to be on-site at all hours; whether the policy should have mandated immediate review of all x-rays by a radiologist; and whether the policy improperly allowed an ER physician to interpret x-rays and make treatment decisions solely based upon that review. The Court concluded that the decision on how and when the hospital would provide radiology services was not a purely administrative act, but involved the exercise of professional judgment.

Opinion by: Reese, Miller and Doyle.

Causation

Swint v. Alphonse, 2018 Ga. App. LEXIS 628 (November 1, 2918)

During a prolonged surgical procedure, Mr. Swint suffered an injury that left him with nerve damage and limited use of his right hand. He and his wife filed suit against the surgeon, the anesthesiologist, and the surgical nurse. The trial court first granted summary judgment to the anesthesiologist and surgical nurse, finding that the testimony of the anesthesiology expert failed to demonstrate that either of their negligence caused Mr. Swint’s injury. That ruling was affirmed on appeal. In the second appeal, the Swints challenged the trial court’s grant of summary judgment to the surgeon. The trial court had concluded that there was not sufficient evidence that any deviation by the surgeon in positioning the patient during the procedure was the cause of the patient’s injuries. The Court of Appeals disagreed, and reversed.

The plaintiffs’ claims were supported by two medical experts. The defendant tried to establish that the experts’ testimony was in conflict. However, the court noted that conflicts between experts’ testimony are to be resolved by the jury. Such contradictions, in the court’s view, are “inevitable” in testimony of experts; and the contradictions go to the weight, not the admissibility of the testimony.

Regarding causation, the court found that expert’s testimony must show a “reasonable probability that the negligence caused the injury.” This can be done with: (a) testimony from expert “that the only apparent cause of the plaintiff’s injury was the defendant’s action; or (b) expert testifmony based on experience “that, in the absence of alleged negligence, the patient’s condition could have been prevented from worsening.” Further, there is no requirement that a plaintiff use a proximate cause expert; rather, causation may be linked by testimony of several experts.

The opinion touches on numerous concepts frequently raised in medical malpractice cases. Not only does it reaffirm that questions regarding causation are for the jury, but it also stands for the proposition that that the “scientific facts and data” requirement of 702 can come from the medical records, the expert’s own training and experience, and the use of differential diagnosis. Further, deficiencies go to the weight and not the admissibility of the evidence. Further, the expert does not need clinical studies to support his opinion, and an opinion will be admissible even if the expert admits there are unknown aspect of plaintiff’s injury. Finally, an expert’s opinion that a doctor’s breach of the standard of care caused a plaintiff’s condition to get worse is sufficient to go to a jury, if based on a review of the medical record, along with his training and experience.

Opinion by Gobeil, Ellington and Brown.

Edokpolor v. Grady Mem. Hosp. Corp., 347 Ga. App. 285, 819 S.E.2d 92 (September 14, 2018)

The plaintiff’s decedent was admitted to Grady Hospital with a history of cardiac disease and other complaints. A month after her admission, in preparation for a colonoscopy she was prescribed GoLYTELY, a liquid bowel prep. Although GoLYTELY is usually taken by mouth, because the patient had an NG tube, the doctor ordered it through the tube. Despite that order, the nurses gave her the medication by mouth. At some point, she aspirated, and died six weeks later from aspiration pneumonia. The plaintiffs attached to their complaint the affidavit of Kelly Thrasher, M.D., who opined that the standard of care required the nurses to administer the medication through the NG tube, and that the nurses’ negligence caused the death. Grady moved for summary judgment asserting the plaintiffs failed to show that the negligence caused the death, maintaining that Thrasher’s affidavit was unsupported and conclusory.

Grady offered expert testimony that nausea and vomiting are known risks of the bowel prep, regardless of how the medication is administered; and that using the feeding tube does not eliminate the risk of aspiration. In response, the plaintiffs relied solely on Thrasher’s original affidavit. After the trial court entered summary judgment, the plaintiffs moved for reconsideration and filed a supplemental affidavit of Kelly Thrasher; however, the court refused to consider it, noting it was submitted post-judgment – a full year after Grady filed its motion.

Opinion by: Mercier, Ellington and Gobeil

Damages

Evans v. Rockdale Hosp., LLC.,345 Ga. App. 511, 813 S.E.2d 601 (April 12, 2018)

The plaintiffs sued Rockdale Hospital and a number of other defendants after Mrs. Evans suffered catastrophic injuries from an undiagnosed ruptured aneurysm. She presented to the hospital after waking up with a “thunderclap” headache, along with nausea and vomiting that did not resolve over a course of two days. Upon admission, she reported her symptoms, and stated that she might have food poisoning. The triage nurse failed to record the initial complaint of headache, and chose the template on the computer for digestive system illnesses, which was utilized by the staff throughout her stay in the emergency department. She was not asked focused questions about the headache. She was diagnosed with high blood pressure, nausea and vomiting with no specific cause identified, and instructed to follow up with her physician regarding the blood pressure. Mrs. Evans scheduled the first available appointment with her PCP; however, she continued to experience the same symptoms and before she was able to see her doctor, she had to be taken by ambulance back to Rockdale, where it was discovered that she had suffered several small strokes as a result of the ruptured aneurysm. She underwent several surgeries and spent months in the hospital and a rehab facility. She is permanently disabled, is incontinent, requires a feeding tube, cannot speak, has sever cognitive and other impairments and requires 24-hour care.

Rockdale did not contest that Mrs. Evans was catastrophically injured, nor challenge the plaintiffs’ economic experts during trial, and did not even address the issue of damages during its close. The jury returned a special verdict, awarding the full amount of damages claimed for past medical expenses, but awarded her zero damages for future medical expenses and nothing for her pain and suffering. The jury apportioned 51 percent fault to Rockdale and 39 percent to Mrs. Evans. The trial court reduced the amount of damages in proportion to the fault percentages. The plaintiffs’ motion for additur and/or new trial was denied.

The Court of Appeals reversed, finding the award of damages by the jury to be clearly inadequate. First, the fact that Mrs. Evan’s injuries were “catastrophic” and “devastating” was not even disputed. Second, the jury’s failure to award anything for pain and suffering, when it had awarded the full amount of medical expenses could not be reconciled. “Given this record, the jury’s award of zero damages for Mrs. Evans’s past pain and suffering, the same time period for which it awarded Mrs. Evans her past medical expenses, was so clearly inadequate under a preponderance of the evidence as to shock the conscience and necessitate a new trial,” and “the trial court abused its discretion in concluding otherwise.”

The Court did reject the plaintiffs’ argument that the new trial should be on damages only. Because the case involved issues of comparative negligence, the court concluded that Supreme Court precedent required that the new trial must encompass all issues and could not be limited to damages.

Opinion by: Barnes, Reese, and McMillian (Concurring in judgment only)

• Cert Petition Pending

Statute of Limitations/Tolling

Hayes v. Hines, 2018 Ga. App. LEXIS 615 (October 26, 2018)

In August 2013, Hayes sought treatment from Dr. Soundararajan, her OBGYN, for abnormal bleeding and a large fibroid mass in her uterus. They discussed treatment options, including abdominal versus robotic hysterectomy procedures. Hayes was then referred to defendant Hines for evaluation regarding a robotic procedure. Hines reviewed ultrasound and MRI reports, and determined that there was a very low suspicion that Hayes’ fibroids were malignant. Had there been a concern for cancer, Dr. Hines, as “the cancer surgeon,” would have performed the procedure. However, because he sent the patient back to Dr. Soundararajan, she felt that she could perform the hysterectomy as she saw fit. She ultimately performed a robotic hysterectomy with the use of a morcellator. Pathology identified grade three leiomyosarcoma, a form of soft tissue cancer. Hayes underwent serial CT and PET scans for several months, which were negative; however, in October 2014 a biopsy confirmed a recurrence of high grade leiomyosarcoma. Plaintiff’s expert opined that the morcellating of the uterus caused the spillage and spread of the malignancy throughout the abdomen. Hayes died of metastatic uterine cancer in May 2015.

Plaintiff, Hayes’s spouse, was appointed administrator of Hayes’s estate on December 9, 2015, and he filed the wrongful death and estate claims against Dr. Soundararajan and John Doe defendants the same day. An amended complaint, substituting Dr. Hines for one of the John Doe defendants, was filed in April 2017. Plaintiff attached the affidavit of Dr. Irwin, who opined that Dr. Hines’ negligence caused the spread of the occult malignancy and ultimate metastasis, which reduced her survivability.

The defendant filed a motion to dismiss, which was later converted to a summary judgment motion, alleging that the estate claims were barred by the statute of limitation. Defendants maintained that Hayes’s condition was not benign or treatable in 2013, and that she did not remain asymptomatic before the development of the alleged new injury. However, the Court of Appeals, first noting that it was the defendants’ burden to establish as a matter of law that Hayes’ injury occurred and manifested itself more than two years before the suit was filed, found that while the defendants showed that Hayes’ condition was not benign, they did not show that it was not initially treatable. Rather, because the plaintiff pointed to evidence that the metastatic cancer did not manifest until October 2014, and that Dr. Hines’ misdiagnosis in November 2013 contributed to the improper treatment and thereby to the development of a more debilitating or less treatable condition, it was error to find as a matter of law that the new injury exception did not apply.

The defendants also argued that because the plaintiff obtained counsel and sought expert advice before having “himself appointed” administrator, he should not be afforded the benefit of the tolling provision. The court rejected this argument, noting that the use of the word “shall” made tolling mandatory. Thus, the trial court also erred in finding that O.C.G.A. § 9-3-92 did not apply to the case.

Opinion by: Ellington, Miller and Gobeil (concurring specially)

Adams v. McDonald, 346 Ga. App. 464, 816 S.E.2d 454 (June 21, 2018)

In another misdiagnosis/subsequent injury case, the plaintiff (a physician) and her husband sued a number of physicians, their practice groups and a hospital alleging that they misdiagnosed her benign heart tumor. Because the tumor was not promptly identified and treated, she alleged that she ultimately suffered a stroke, brain damage, and loss of vision.

The trial court granted the defendants’ motions for summary judgment on the ground that the claims were barred by the two-year statute of limitations. The plaintiff first had problems on January 31, 2013 while working in the NICU, when she had a sudden onset of neurological symptoms. She was taken down to the emergency department, where she was examined by the emergency physician, who felt that she could be experiencing a TIA, but did not raise his concern for a cerebrovascular event. She was also examined by a neurologist in the ED, whose differential diagnosis included a benign positional vertigo versus basilar migraine. Shortly thereafter, the plaintiff saw an ENT who diagnosed her with a Eustachian tube dysfunction, headache and balance disorder. She then saw another neurologist, who did not consider TIA, but rather a classical migraine. The plaintiff saw physicians throughout 2013 for symptoms which she maintained were very different from what happened on January 31st, and despite the migraine diagnosis, she reported that she had no significant head pain. Ultimately, she suffered a stroke on September 17, 2013, and in connection with her evaluation at that time, underwent an echocardiogram, which revealed the benign heart tumor, which in turn was the cause of the stroke. Suit was filed on September 10, 2015 alleging that she was misdiagnosed because no one had ordered an echocardiogram prior to her stroke.

The defendants argued that the clock began to run on the plaintiff’s claim on the date of the initial misdiagnoses, rather than the date of the stroke, because she continued to experience symptoms from the misdiagnosed condition in the interim, and the stroke was simply a worsening of the earlier condition and not a “new injury,” as the plaintiff contended. Noting that the plaintiff “certainly experienced symptoms of something during the period between the January 2013 and September 2013 events,” the Court of Appeals considered the testimony of the plaintiff and defense experts regarding the potential causes of the plaintiff’s symptoms, along with the plaintiff’s testimony to determine if those symptoms barred her claims. Because the court found that the headaches and visual disturbances experienced by the plaintiff “do not demand a finding . . . that these symptoms were caused by the myxoma rather than migraines or some other cause,” a jury has to decide the cause of the intervening symptoms. Thus, the court reversed the summary judgment.

Opinion by: Ray, McFadden and Rickman.

Swallows v. Adams-Pickett, 344 Ga. App. 647, 811 S.E.2d 445 (February 22, 2018)

At the risk of stating the obvious, this case stands for the proposition that the statute of limitations for the parents’ claim arising out of injury to a child is two years from the date of injury, and can expire before the child’s own claim does.

The plaintiffs’ son Blake suffered a brachial plexus injury during his birth in October 2011, and the plaintiffs originally filed their complaint against the medical providers in February 2015, when Blake was 3 years old to recover for Blake’s injuries, including past and future medical treatment and expenses. The defendants filed a motion for summary judgment as to the claims of Blake’s medical, education and maintenance expenses prior to his age of 18. The plaintiff/parents subsequently amended their complaint to add claims for their own damages. The trial court determined that the parents’ claims for economic losses associated with the care of their son were barred by the statute of limitations, and the parents appealed.

The Court, again, considered whether the exception to the general medical malpractice statute of limitation provided in O.C.G.A. § 9-3-73(b) for minors also provides an extension for the parents. The Court rejected the parents’ claims that “the minor” means “the minor’s parents,” and concluded that a plain reading of the statute reveals that the relevant exception applies only to the minor child’s claim, and not that of his parents.

The parents also claimed that the trial court erred in finding that their claim did not relate back to the claim filed solely on behalf of their child. However, since the original claim was also filed more than two years after the birth of their son, the Court found that the claims of the parents had already expired even at that time.

Opinion by Mercier, Barnes and McMillian.

Emergency Medical Care/EMTALA/Doctor-Patient Relationship

Pham v. Black, 2018 Ga. App. LEXIS 567 (October 10, 2018)

Following the death of Jonathan Black, his sister and administratrix of his estate sued Newton Medical Center and several doctors for malpractice, and also alleged EMTALA violations. The decedent arrived at HMC by ambulance complaining of a racing heart. Dr. Pham was the night-shift hospitalist on duty, and had the ability to admit patients from the emergency department. Dr. Trinh was the ER doctor who examined the patient and conferred with Dr. Abraham, the on-call cardiologist. Dr. Abraham recommended admission to the ICU, but Dr. Pham was reluctant to admit Black to NMC because of his symptoms at such a young age. Trinh diagnosed Black with a thyroid storm, although he had never previously treated a patient with such a condition. While Trinh and Pham were discussing the situation, Black coded and was put on life support. Pham decided not to admit the patient; and Dr. Abraham suggested they transfer the patient to Emory where he could receive a higher level of care. Trinh signed the transfer order. While Black was treated at NMC, Pham never saw him.

After the patient was transferred to Emory, Pham asked Abraham if he had heard anything about Black’s condition. Abraham responded that the decedent was “alive but very sick . . . I guess you have learned not to trust that idiot [Trinh].” Pham replied that “Trinh is a moron and an embarrassment to my race.” Once at Emory, the patient was stabilized, but died the next day.

Dr. Pham moved for summary judgment on the ground that she had no doctor-patient relationship with the decedent. The trial court denied the motion; however, the Court of Appeals reversed. The court first noted that simply because a doctor who is on call has agreed to be available for consults, that does not mean she has agreed to establish a doctor-patient relationship with any patient who presents to the hospital for treatment. Here, while Pham was the hospitalist on duty and was called for consultation by both Trinh and Abraham, she never saw the patient and, according to the court, “did not participate in his diagnosis or his treatment.” The court noted that Pham had never treated a patient with a thyroid storm, and wasn’t sure when the medications for such a condition should be administered. She believed that the hospital could not care for the patient, and in fact Dr. Abraham arranged for transfer to another facility. Under these facts, the court found that no doctor-patient relationship existed.

Black appealed the trial court’s order dismissing her EMTALA claim against the defendant doctors. The Court of Appeals affirmed that ruling, finding that EMTALA only imposes a legal duty upon hospitals, not individual doctors. “The legal duty to perform the medical screening, stabilize the patient, and restrict transfers until the patient is stabilized fell upon the hospital by the plain language of the statute.”

Opinion by: Rickman, Ray and McFadden (concurring in part II and dissenting in part I)

Dissent: Judge McFadden did not agree that, at least for the purposes of summary judgment, no doctor-patient relationship existed with Pham and decedent. The record contains evidence that Pham did something to support an implication that she participated in the diagnosis and treatment of the patient: She made a medical decision by determining that the patient should not be admitted. That said, Judge McFadden acknowledged that any liability may well be limited in scope, and it may be difficult for the plaintiff to prove a breach of the limited duty, or causation for the death.

Apportionment

Southwestern Emergency Physicians, P.C. v. Quinney, 2018 Ga. App. LEXIS 538 (September 28, 2018)

Plaintiff Quinney underwent outpatient surgery to place a spinal cord stimulator to relieve pain related to diabetic neuropathy. A neurosurgeon at the medical center in Macon performed the surgery, and about five days after returning to his home in Albany, Quinney experienced severe pain in his back and right leg weakening. An ambulance was called, and soon he had no movement in the leg. He was taken to Phoebe Putney in Albany. He told the ER nurse about the recent surgery, pain and neuropathy. Shortly thereafter, there was a shift change, a new nurse came on duty, and Dr. Gutierrez examined Quinney. He, too, was advised of the recent surgery; and while Gutierrez included the possibility of a spinal cord abscess or hematoma in his differential, he did never performed a complete neurologic examination. Instead, he ordered a CT of the spine, which was interpreted by Dr. Baldwin, a radiologist, who reported no evidence of abscess or hematoma to Gutierrez. Thereafter, despite the fact that he never determined the cause of Quinney’s severe back pain and was unable to alleviate it with narcotic pain medications, Gutierrez believed Quinney was stable enough to be transferred. Almost 7 hours after arriving at Phoebe, Quinney was transferred to the medical center in Macon. He immediately saw his neurosurgeon, who ordered a CT myelogram, which revealed a spinal canal hematoma compressing the spine. Quinney underwent immediate surgery to remove the hematoma, but by then the neurological damage could not be reversed and he is now a paraplegic.

Suit was filed against Phoebe and the two triage nurses, and Dr. Gutierrez and his practice. The defendants moved for summary judgment based on the ER statute, which was granted. However, the Court of Appeals reversed in part, finding that while the statute did apply, the jury nevertheless had to decide if the defendants had been grossly negligent. After the case went back to the trial court, the defendants filed a notice of fault against Dr. Baldwin, the radiologist, for misreading the CT. Prior to trial, the hospital and nurses were dismissed and the case was tried against the ER defendants, resulting in a $4,500,000 verdict. The jury apportioned fault as follows: 34% to Gutierrez 33% to one non-party nurse; and 33% to Baldwin. The trial court denied Gutierrez motion for new trial, from which he appealed.

The Defendant maintained that the court erred in instructing the jury that the gross-negligence standard of care also applied with regard to apportioning fault to non-parties under 51-12-33. According to the defendant, Section 51-1-29.5, the ER Statute, does not modify any essential elements of a tort against an emergency medical provider or even reference the duty owed, but, rather provides such personnel with a form of immunity by limiting their liability. He therefore argued that because 51-12-33(c) requires only a finding of “fault” of the non-party generally, regardless of whether the non-party has any affirmative defense or claim of immunity with regard to liability to the plaintiff, it is not necessary to find the non-party grossly negligent in order ot apportion fault to him. The Court of Appeals found this argument to be a “non-starter.” Because the court has to consider the applicable duty of care, in the context of emergency medical care, “a showing of gross negligence necessarily equates to showing a breach of a duty of even slight care. Accordingly, under the plain language of O.C.G.A. § 51-1-29,5, an emergency medical provider’s legal duty to a patient has indeed been effectively modified to that of only slight care.”

The court also rejected Gutierrez’s argument that the hospital should have been listed on the verdict form for apportionment purposes. First, the court noted that his assertion that an unnamed charge nurse was, in part, responsible for the delay in the transfer was not an argument made at trial. The nurses who were involved in the patient’s care were included on the form. And because there was no evidence that any specific non-party, who was not already on the verdict form, was responsible for the delay in diagnosis, treatment or transfer, there was no error in refusing to include the hospital.

Opinion by: Dillard, Doyle and Mercier.

• Cert Petition is Pending

Arbitration

Coleman v. United Health Servs. of Ga., 344 Ga. App. 682, 812 S.E.2d 24 (February 23, 2018)

The plaintiff, Coleman, sued numerous defendants for malpractice, fraud and other claims relating to his care at a nursing home. The defendants moved to dismiss or stay the proceedings and compel arbitration. The trial court granted the motion, staying the action pending conclusion of the arbitration; however, the Court of Appeals reversed, finding that the Advanced Directive for Health Care the resident signed only authorized his agents “to make health care decisions for him,” which did not include an agreement to arbitrate.

Coleman lived with his sister and brother-in-law, Biggerstaff. In 2009, Coleman signed an Advance Directive appointing his sister and Biggerstaff as health care agents, permitting them to render any health care decisions that Coleman could make, including authorizing Coleman’s admission to medical facilities. In April 2013, Coleman was admitted to the defendant nursing home for long-term care. Coleman signed his admission documents, including an arbitration agreement, but indicated on several forms that Biggerstaff was his “representative” or “responsible party.” After Coleman began exhibiting memory and behavioral issues, he was transferred to the defendant’s memory unity in 2014. Biggerstaff signed the admission paperwork at the memory facility, and as the patient representative, signed another arbitration agreement. The defendants maintained that this agreement prevented plaintiff’s suit in favor of arbitration.

The court first noted that as the parties seeking arbitration, the defendants bear the burden of establishing that a valid and enforceable arbitration agreement exists. While Coleman did not sign the agreement, the trial court found that he authorized Biggerstaff to sign it for him. The appellate court disagreed, finding that Coleman had neither expressly, nor impliedly given authority to Biggerstaff to bind him to arbitration.

The Advance Directive created an agency relationship for the purpose of health care decisions only; and because the arbitration agreement was voluntary and “not a precondition to admission,” it could not be viewed as a health care decision. And while Biggerstaff was appointed by Coleman to be his “responsible party,” he did not believe he was given broad agency authority.

Regarding defendants’ apparent authority argument, the court rejected the idea that any prior decisions by Coleman or actions taken by Biggerstaff on his behalf demonstrated that Coleman authorized Biggerstaff to sign the arbitration agreement. Finally, the court rejected the defendants’ argument that Coleman was bound by the agreement as a “direct third-party beneficiary,” because Biggerstaff lacked the authority to sign the agreement in the first place, and if he signed it in his own capacity, it provided no benefit to Coleman. “To conclude otherwise would allow contracting parties to bind an unsuspecting third party to arbitration without providing a benefit desired or accepted by the third party.”

Opinion by: Andrews, Miller and Ellington.