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Articles Posted in Medical Malpractice

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photo_5257_20080312Although medical malpractice suits against the VA are often complicated by the specialized requirements under the Federal Torts Claims Act or the unique rules for medical malpractice actions pursuant to Georgia state law, sometimes the issue holding a case back is simply the theory of liability, the evidence provided, or failing to proactively litigate. These more commonplace issues are at the center of the U.S. District Court for the Northern District of Georgia’s recent opinion in Stidham v. U.S., which involved the alleged failure of the VA to provide a patient with a necessary medical apparatus within a reasonable period of time.

As alluded to above, the plaintiff in the case was a patient at the VA Medical Center in Atlanta. The plaintiff had gone to the VA for medical care, and during the course of that care he was informed by a nurse practitioner employed at the VA that he would need to wear a knee brace. Although he was required to wear a knee brace and his prescription for the brace was made on July 16, 2010, the plaintiff claims that he did not receive the brace for nearly a year. He avers he received the brace on June 6, 2011. The VA refutes these facts and claims instead that the prescription was actually for three different braces, two of which the plaintiff received at the time and the third which was not in stock at the VA at the time the plaintiff received his prescription. However, the VA maintains that the third brace was mailed to the plaintiff on August 10, 2010, slightly less than a month after he received the prescription. The plaintiff then brought a medical malpractice action against the VA, alleging that the delay in delivery of the knee brace was unreasonable. Following some discovery, the VA made a motion for summary judgment, to which the plaintiff did not respond, submit a statement of material facts, or provide opposing expert testimony.

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Hospital BedIn the overwhelming majority of medical malpractice cases, a plaintiff will need to provide expert testimony in order to succeed on his or her claim. Expert testimony is necessary, since a typical juror cannot make a determination regarding whether a physician has breached his duty of care without the aid of an expert who can provide testimony regarding what the applicable standard of care is. Although the need for expert testimony is common knowledge among legal practitioners, a recent decision from the Georgia Court of Appeals, Davis v. Osinuga, examines the peculiar situation when the desired expert is unavailable at the time of a trial and the plaintiff seeks a continuance in order to have time to make the expert available.

This medical malpractice wrongful death case was brought by the children of a man who died while receiving treatment from one of the defendants, a physician at East Point Primary Care Center in Dekalb County, Georgia. When the plaintiffs filed this action in April 2009, they included an affidavit from Dr. Kelly Thrasher, as is required by O.C.G.A. § 9-11-9.1. However, in January 2013, Dr. Thrasher was arrested on felony and misdemeanor charges, resulting in the Georgia Composite Medical Board suspending Dr. Thrasher’s medical license. At this time, counsel for the defendant inquired into whether the plaintiff still intended to call Dr. Thrasher as an expert witness and noted that they would oppose any motion for a continuance based on difficulties posed by Dr. Thrasher’s legal troubles. In fact, this case had been included on the court’s trial calendar on three earlier occasions since 2011, but the case had either not been reached or continued in every instance. On January 1, 2014, the trial court issued a notice indicating that the case had been placed on the jury trial calendar for the week of February 10, 2014. Unfortunately, Dr. Thrasher was arrested on January 14, 2014 for practicing medicine without a license. Dr. Thrasher was released on bail, but one of the conditions of his release was that he was not to give his medical opinion on any matter, which included testifying in legal proceedings. On the day of the trial, February 10, 2014, the plaintiffs made a motion for a continuance, which the trial court denied. At a hearing on this issue, the trial court judge noted that the plaintiffs had been aware of their planned expert’s legal issues for over a year but nonetheless failed to either secure an alternate expert witness or to preserve Dr. Thrasher’s expert testimony through an evidentiary deposition. Since the plaintiff could not succeed without the expert testimony, the case was dismissed for want of prosecution. The plaintiffs then brought this appeal, which argued that the trial court erred in denying their motion for a continuance.

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photo_5495_20080405Almost every type of legal claim is governed by an applicable statute of limitation that limits the amount of time a plaintiff has to bring legal action to redress his or her grievance. Among the shortest statutes of limitation is the one that limits the time a plaintiff has to bring a medical malpractice action. Under Georgia law, a plaintiff has only two years to bring his or her claim. O.C.G.A. § 9-3-71 (a). However, a key question that often arises in such cases is when the statute of limitation begins to run. This determination was the central issue in the Georgia Court of Appeals’ recent decision in Beamon v. Mahadevan.

The events leading to Beamon began in October 2007 when the plaintiff, complaining of what he thought was severe indigestion, went to a physician who after reviewing the results of an electrocardiogram immediately sent the plaintiff to the hospital. Doctors at the hospital determined the plaintiff needed cardiac bypass surgery and a mitral valve replacement. Six days later, the defendant in this case performed a four-vessel coronary artery bypass on the plaintiff. The plaintiff alleges that during this surgery, the defendant replaced the plaintiff’s poorly performing mitral valve with a bio-prosthetic one that was inappropriately sized. The plaintiff further alleged that the valve was negligently sutured to leaflet tissue as opposed to the proper tissue for suture, the annulus of the heart. Only a few months after the surgery, the plaintiff began to experience breathing trouble, fatigue, and exhaustion. The plaintiff’s condition continued to worsen, and by June 2008 the plaintiff was diagnosed with atrial fibrillation and a heart murmur. In March 2009, the plaintiff underwent a transesophageal echocardiogram that showed a significant heart valve leak. The following week, the plaintiff underwent a second surgery to replace the existing mitral valve replacement with a larger one. The surgeon who performed the second surgery observed the alleged errors in the suture job of the first surgery. The plaintiff originally brought suit against the first surgeon in December 2010 but voluntarily dismissed the suit. However, the plaintiff then filed a renewal action in October 2011, seeking damages for medical negligence. Following some discovery, the defendant moved for summary judgment on statute of limitations grounds, and the trial court granted the motion.

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pen and inkSince passage of the Federal Arbitration Act of 1925, arbitration clauses have become a commonplace, if not boilerplate, provision utilized in contracts executed in the United States. However, given the ubiquity of adhesion contracts, many people are often unaware they are waiving the right to have their grievances decided in court and, more importantly, many of the procedural safeguards that exist in the judicial setting. However, even when parties have agreed to arbitrate, one can occasionally avoid compelled arbitration. Avoidance of mandatory arbitration is at the core of today’s case, Sunbridge Retirement Care Associates, LLC v. Smith (PDF-embedded link).

Sunbridge concerns an arbitration agreement between Cartersville Heights Care and Rehabilitation Center (“Cartersville”), a skilled nursing and rehabilitation center and the plaintiff in this action, and the daughter of a now-deceased resident of the facility. The agreement was executed on November 24, 2009, when the resident was in the admission process. The daughter had the power of attorney to enter into agreements on behalf of the resident, and she signed the arbitration agreement, which provided that “any and all claim or controversies arising out of or in any way relating to this agreement, the admission agreement or any of the resident’s stays at the Facility … shall be submitted to binding arbitration.” The agreement further provided that “the arbitrator shall apply the [National Arbitration Forum (“NAF”)] Code of Procedure,” which in turn provides that the Code governs the arbitration proceedings, unless the parties agreed otherwise. The Code further provided that in the event the parties are denied an opportunity to arbitrate, they retain the right to seek legal or other remedies.

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photo_5251_20080312As we’ve discussed before, the standard for medical malpractice liability in Georgia varies depending on whether the alleged act of medical malpractice occurs during an emergency situation. Given that the standard for liability is more stringent under Georgia’s emergency room statute, O.C.G.A. § 51-1-29.5, determining whether the statute applies is crucial for obtaining recovery against a possibly negligent medical provider. In a recent decision, Hospital Authority of Valdosta/Lowndes County v. Brinson (PDF-embedded link), the Georgia Court of Appeals looked at the application of the statute to an unfortunate but interesting set of facts, which involved the treatment of an infant who was suffering from infection requiring emergency care but whose symptoms were not immediately noticed by medical personnel.

The infant was brought to the emergency room on September 24, 2010. The infant had been born prematurely two months earlier and was treated for pneumonia only a month after birth. The infant’s mother said she brought him to the ER because he was acting fussy and had been running a fever. In addition, the infant’s baby sitter reported that the day before the infant was lethargic and cringing and experienced fever, diarrhea, and poor oral intake. At the ER, the infant was triaged by a nurse, who examined him and determined that his condition was normal but did not include the aforementioned medical history in notes. The infant was then seen by a physician’s assistant, who determined that the infant seemed pretty healthy, diagnosed the condition as either allergic rhinitis or a cold, and discharged the infant with a prescription for an oral steroid. A supervising physician later reviewed the chart, and though he testified that he would not have prescribed a steroid, concurred with the assessment and course of treatment. The mother returned three days later, as the physician’s assistant had directed her. At this time, the infant presented with a fever of 102.1, diarrhea, vomiting, and abdominal pain. After taking blood and urine samples for further testing, the pediatrician who saw the infant diagnosed the condition as a urinary tract infection and prescribed Tylenol and an antibiotic. The next day, a hospital representative called the mother and told her to bring the infant back immediately because blood test results showed the infant was suffering from a systemic infection. The call proved unnecessary, since the mother was already in transit to the hospital. Upon arrival, the baby was admitted to the hospital and, the following day, transferred to a pediatric intensive care unit at another hospital, where he was diagnosed as having streptococcus meningitis and a stroke.

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Blood Pressure CheckSince certain subject matter falls beyond the knowledge or experience of an average juror, cases will occasionally require that a plaintiff or defendant provide expert testimony that will assist the jury in making necessary factual determinations for resolving a case. In particular, expert testimony is often necessary in medical malpractice cases, since many jurors lack sufficient medical knowledge to make determinations regarding a medical provider’s negligence. In a recent decision, Freeman v. LTC Healthcare of Statesboro, Inc. (PDF-embedded link), the Georgia Court of Appeals addressed who can provide this necessary expert testimony.

Freeman arose from an alleged act of medical malpractice at Westwood Nursing Center, a long-term care facility. The plaintiff in this action is the husband of a patient who died shortly after arriving at Westwood. The deceased had undergone brain surgery the month before and experienced severe complications, including quadriplegia. Medical orders accompanying the transfer instructed that the deceased receive albuterol and that her oxygen be monitored and tracheostomy tube suctioned. The day of her transfer, Westwood’s medical records show that a feeding tube was placed but does not indicate that any of the other treatments were followed. Shortly before midnight, a nurse noticed that the deceased was in distress, and by the early morning the deceased passed away as a result of respiratory failure.

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photo_24041_20130404Although information asymmetry between physicians and patients makes it difficult for one to determine whether he or she has a potential claim for medical malpractice, Georgia law nonetheless requires that one promptly bring his or her claim or bear the risk of losing it. This harsh procedural truth is at the heart of the Middle District of Georgia’s recent decision in Phillips v. Clements, in which the court upheld the dismissal of a medical malpractice claim that was brought more than two years following a physician’s alleged act of malpractice.

The act that gave rise to the Phillips v. Clements litigation occurred on or about October 20, 2008. At that time, the injured party was four years old and was harmed as a result of allegedly mis-filled prescription medication. The minor’s mother originally brought suit on behalf of her daughter on March 22, 2012, but she voluntarily dismissed her case on February 13, 2013. On October 17, 2013, the minor’s grandmother filed this suit seeking recovery on behalf of the same injured child. However,the defendants moved for the claims to be dismissed as time-barred under Georgia law or, alternatively, for summary judgment to be granted in their favor since the plaintiff had failed to proffer a standard of care expert, which is necessary to prove pharmaceutical malpractice under Georgia law.

First, under Georgia law, an action based on a pharmacist dispensing prescription medication falls within the purview of “medical malpractice” for purposes of the statute of limitations. Robinson v. Williamson, 245 Ga. App. 17, 19, 537 S.E.2d 159, 161 (2000); see O.C.G.A. § 9-3-70.

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file3291233869663Although many medical malpractice suits involve troubling facts, those underlying Armstrong v. Gynecology & Obstetrics of Dekalb, a recent decision of the Georgia Court of Appeals, are especially gloomy. The plaintiffs in this case brought a medical malpractice suit against Gynecology & Obstetrics of DeKalb, P.C. and three physicians who worked for the medical practice after their daughter arrived stillborn. The plaintiffs argued that the physicians acted negligently in managing their prenatal care and that the stillborn birth was caused by an avoidable placental abruption that occurred one day before the scheduled delivery by cesarean section. At the trial level, the case did go before a jury, which found in favor of all the defendants. However, the plaintiffs appealed, positing three reasons why the trial court erred in not granting their motion for a new trial.

First, the plaintiffs argued that jury misconduct associated with the use of cellphones to research four legal terms during jury deliberations was improper and warranted a new trial. After these allegations were raised at trial, the trial court made a thorough inquiry, which included sequestered interviews with each juror before counsel. After this inquiry, the trial court found that although the use of the cellphones was improper, it did not have an effect on the verdict and thus did not warrant a new trial. Although the influence of extraneous information can undermine the validity of a jury verdict, one must nonetheless demonstrate that the extraneous information had a prejudicial effect on the verdict rendered. Moreover, the appeals court noted that its review of the trial court determination was subject to an abuse of discretion standard of review. Accordingly, a party on appeal must demonstrate harm or prejudice flowing from the juror’s actions in order for an appeals court to overturn the trial court’s determination. In the instant case, there was no testimony elicited regarding either the substance of the definitions found or any reliance on those definitions in rendering the verdict. Thus, the plaintiffs did not make the requisite showing of prejudice or harm necessary to warrant a new trial.

Second, the plaintiff argued that the trial court jury instruction regarding “hindsight” was improper, since relevant risk factors were known to the physicians prior to the placental abruption and stillbirth. Again, the Court of Appeals found the argument unavailing. Generally, a trial court must instruct the jury on all issues applicable to the case, and when there is at least “slight evidence” on an issue, it is not error for a trial court to provide instruction. Mercker v. Abend, 260 Ga. App. 836, 839 (1) (581 SE2d 351) (2003). In this case, the court noted that even the plaintiff’s expert witness acknowledged that placental abruptions are unpredictable. Therefore, there was more than slight evidence that the plaintiffs’ claims of negligent assessment of risk were based on after-acquired information, and thus instruction regarding hindsight was applicable and justified.
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