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Articles Posted in Medical negligence

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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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NYUWork-009Although discussions involving negligence and medical facilities are often focused on medical malpractice, some injuries in the medical setting happen to be disassociated from medical judgment and thus subject to a different standard of review. This distinction is at the heart of the Georgia Court of Appeals’ recent decision in Emory Healthcare, Inc. v. Pardue, a case that required the court to resolve when negligent conduct on the part of medical professionals constitutes medical malpractice rather than ordinary negligence.

The plaintiff in Pardue was a patient at the Wesley Woods inpatient psychiatric unit in Atlanta. She had been admitted to the facility so that the dosage of her previously prescribed medications could be modified in a controlled setting. Wesley Wood is a facility that specializes in geriatric psychiatry, and a fall-risk assessment was taken when the plaintiff was admitted. The risk assessment and other admission documents noted that the plaintiff had “several sensory and cognitive impairments, including cataracts, hearing loss, weakness, an unsteady gait, and a history of dementia.” In light of these issues, the plaintiff was deemed a fall risk, and orders were placed that required she be assisted to the bathroom. On the morning of April 19, 2007, the plaintiff attempted to leave her bed in order to go the restroom, and an alarm sounded notifying staff of her movements. A nurse and a nursing assistant responded and assisted the plaintiff to the restroom, but as they walked to the restroom, the plaintiff urinated on the floor. They finished their journey to the bathroom, where they told the plaintiff to wait while they attended to the urine. While a nurse was cleaning the floor, the plaintiff left the bathroom and then fell on the wet floor outside the bathroom where she had urinated. The nurse who was cleaning the floor testified that she had not seen the plaintiff get off the toilet or leave the bathroom. Following this accident, the plaintiff brought suit against Emory for negligence. The suit eventually went to the jury, which found in the plaintiff’s favor.

One of the defendant’s principal arguments on appeal was that the plaintiff’s negligence claim sounded in medical negligence and not ordinary negligence. Accordingly, the rules associated with medical malpractice liability, including the requirement that a plaintiff provide expert testimony to establish her claim, should apply. The Georgia Court of Appeals, however, found this argument unavailing. The court relied on its prior decision in Brown v. Tift County Hosp. Auth., which held “the distinction between ordinary and professional negligence turns on whether the decision on how to monitor, assist or care for the patient was based on a professional assessment of whether the patient, based on the patient’s medical condition, required assistance of some sort.” 280 Ga. App. 847, 849 (635 SE2d 184) (2006). In other words, when the alleged negligence involves “the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise, the action states professional negligence. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence.” Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101) (2005).
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photo_5255_20080312As we have discussed in previous posts, filing a legal claim against the state or federal government is not always a straightforward process. Successfully asserting a claim against a governmental body often depends on satisfying requirements set forth in legislation regarding sovereign immunity, and many sovereign immunity waiver statutes impose unexpected notice obligations that, if not fulfilled, preclude legal action. In a recent case, Campeau v. United States, the United States District Court for the Northern District of Georgia addressed whether the plaintiff had complied with several notice provisions provided under the Federal Tort Claims Act (FTCA).

Campeau involves the unfortunate death of the plaintiff’s husband on December 7, 2010 as a result of complications from electroconvulsive treatment performed at the Atlanta Department of Veterans Affairs Medical Center. Since the alleged wrongful death occurred at a VA Medical Center, the plaintiff needed to file her lawsuit against the federal government. However, pursuant to 28 U.S.C. § 2675(a), a wrongful death action may not be instituted against the federal government “unless the claimant shall have first presented the claim to the appropriate Federal agency” and pursuant to 28 U.S.C. § 2401(b), a tort claim is barred unless the aforementioned claim is presented within two years of the time the claim accrues and the action is commenced within six months of the agency’s notice of final determination or inaction. At issue in Campeau was whether the plaintiff had properly complied with the filing requirements under § 2675(a).

In July 2012, an administrative claim form comprehensively setting forth the circumstances of the deceased’s death was submitted by the deceased’s mother as Administrator of his Estate with the decedent’s wife listed as a witness to the claim to the Department of Veterans Affairs. On December of 2012, a virtually identical amended claim form was submitted to correct an error listing the claim amount under personal injury rather than wrongful death. On April 7, 2013, the VA replied and denied the personal injury claims and further stating that the plaintiff’s mother was not the proper party to assert the wrongful death claim under Georgia law and that the wrongful death amended form was otherwise untimely. In response, a Second Amended Complaint form now listing the decedent’s wife as the claimant was submitted to the VA, with attorneys for the estate noting that since the VA did not address the merits of the wife’s wrongful death claim it was “[their] understanding … there has been no final disposition as to [her] claim as there has not been any final agency action regarding that claim and we have not exercised our option to file suit pursuant to 28 U.S.C. § 2675(a).” The VA acknowledged receipt but stated that it would be treated as a new claim. Attorneys for the estate disputed the characterization and, instead, argued that it should be treated as an amendment to the original claim filed in July of 2012.
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medical-doctor-1314902-mIn light of the poor health of many who enter medical facilities, death is not an uncommon occurrence. Although many of these deaths can be attributed to factors beyond the control of any physician, some can be traced to the negligent conduct of practitioners, leaving doctors and the loved ones of those deceased to wrangle in court. To the chagrin of many of these bereaved plaintiffs, however, the standard for demonstrating negligence liability in medical malpractice actions associated with wrongful death in Georgia is quite different from the burden in a typical negligence suit. In its recent decision in Reeves v. Mahathre, the Georgia Court of Appeals illuminated how some of these differences function in practice and gave further guidance to future litigants on the evidentiary burden they face when asserting a medical malpractice claim.

This case arose from the death of an elderly patient with a history of hypertension and diabetes, who came into the emergency room at Dorminy Medical Center complaining of nausea and abdominal pain. The attending physician, one of the defendants in this case, took a medical history and performed a physical examination of the patient. After these preliminary undertakings, the physician ordered a series of tests, which included a complete blood count, blood-chemistry analysis, urinalysis, and an upright kidney-ureter-bladder x-ray. Although the patient’s white blood cell count was elevated, indicating possible infection, the other tests came back normal, and the physician prescribed the patient pain medication with instructions to see her primary care physician in two days. The following morning, the patient went to her primary care physician and was later that afternoon admitted as an inpatient to Dorminy Medical with increased abdominal pain, fever, and an elevated white-blood-cell count. Shortly thereafter, a CT scan was performed, which showed that the patient was suffering from a kidney stone. Dorminy Medical did not have an available urologist on call but consulted with one at Tift Regional Medical Center. The urologist said Tift Regional did not have any available beds, but the decision was made to transfer the patient promptly the following morning. The following morning the patient was transferred to Tift Regional, which is approximately 30 miles from Dorminy Medical, but by the time she arrived, she was in critical condition and could not undergo anesthesia necessary for surgery. The patient never stabilized and died later that afternoon as a result of urosepsis.

Following the death, the estate of the deceased brought a wrongful death suit against, among others, the attending physician and his employer, Ben Hill Emergency Group, LLC. The estate alleged the physician was negligent in the care he provided. Specifically, they argued that the attending physician was negligent in failing to order a CT scan or formally diagnose the deceased’s condition prior to discharging her from the emergency room during the initial visit. The physician moved for summary judgment, arguing that he did not breach the applicable standard of care and, even if he did, the plaintiff had failed to establish a causal connection between his care and the patient’s death. The trial court concurred and granted the motion.
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smile-1-762657-mIn a 2013 case, a woman appealed after the court granted summary judgment in her malpractice claim against a dentist and his practice. The dentist had claimed she filed her action outside the two-year statute of limitations.

The plaintiff had problems with her teeth and saw two dentists. She was referred to Dr. Braswell, who examined her teeth and found problems. Dr. Braswell referred her to the defendant, who had a specialty in prosthetics and an oral surgeon. The dentist created a treatment plan. He also took bite models and installed prostheses. The oral surgeon performed extraction and implant surgeries.

The dentist found she needed a full mouth prosthodontic reconstruction. He outlined a series of procedures she would need. The dentist put together a letter outlining his plan to install fixed implant prostheses. The oral surgeon extracted some of the woman’s teeth based on the dentist’s surgical guides. The dentist found that the implants were too deep, too close and at an incorrect orientation. Continue reading →

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emergency-room-65898-mIn a 2013 Georgia Supreme Court case, the Court considered a medical malpractice claim in connection with an emergency department visit. The case arose when a woman took her 15-year-old son to the emergency department of a hospital in 2007. The week before the visit, the son had undergone a knee surgery. The son was complaining of chest pain at the ER. A nurse and then a doctor saw him.

The doctor ordered pain medication for the son, as well as an EKG and a chest X-ray. The doctor noted that the son had gone through surgery the week before and also asked about the son’s medical history and conducted a physical exam.

The doctor ruled out a variety of potential ailments and diagnosed the son with pleurisy. He discharged the son with an anti-inflammatory pain relief prescription and told him to come back to the ER if his symptoms continued. Continue reading →

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ultrasound-2-676878-mThe time period within which you may bring a medical malpractice suit in Georgia is very limited. In a recent case, a couple appealed the dismissal of their medical malpractice case. The trial court had ruled the claims were time-barred. The case arose when the couple sued the doctor for damages. The wife and physician had entered into a patient-physician relationship in connection with the wife’s medical condition. The doctor misinterpreted a transvaginal ultrasound, failing to show the required degree of care. As a result, the doctor misdiagnosed the wife’s normal intrauterine pregnancy, finding it to be an ectopic pregnancy.

As a result, the woman’s pregnancy was terminated through dilation and curettage. The woman experienced pain and suffering related to her abortion. She and her husband sued. Their lawyer attached an affidavit from another doctor to the complaint, as required by OCGA § 9-11-9.1 (a), which relates to professional negligence.

The second count in the complaint was brought to recover for the defendant’s breach of fiduciary duty. It also alleged that the doctor had a duty to properly diagnose her condition through her transvaginal ultrasound. It alleged that the physician-patient relationship gave rise to a fiduciary duty and that the doctor’s breach in fiduciary duty by misreading the ultrasound resulted in damages to the plaintiff. Continue reading →

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ambulance-1334534-m-4Until 1988, the doctrine of informed consent was not followed in Georgia. This meant doctors didn’t have a duty to disclose the risks of medical treatments. In 1988, the Georgia legislature adopted a statute that required informed consent, but only in relationship to six specific categories. These include the patient’s diagnosis that made the procedure necessary, the nature of the procedure, the recognized risks of infection and other issues associated, the likelihood that the procedure would be successful, the practical alternatives to the procedure, and the patient’s prognosis if the procedure is rejected.

A recent case ruled that morphine administration does not require informed consent because it is not a procedure specified in the statute. A plaintiff had sued a doctor and hospital for the wrongful death of her mother. The decedent was in her late 70s when she died. She suffered from end-stage chronic obstructive pulmonary disease (COPD), which resulted in her airway being obstructed. She experienced a severe shortness of breath and was admitted to the hospital.

She was treated by a pulmonologist, and after a few days in the hospital, she started to improve. However, at some point, her condition worsened and she started to experience respiratory trouble. Doctors responded. Continue reading →

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woman-in-hospital-1051476-m-2In a recent case, a Georgia plaintiff brought a lawsuit against a doctor, a medical practice and a laboratory for ordinary and professional negligence. The defendants had failed to diagnose and treat the plaintiff’s wife’s cervical cancer in a timely fashion.

The parties took numerous depositions and exchanged a number of discovery requests. During the discovery period, the plaintiff filed a motion to compel further testimony from a lab employee, which denied. A partial summary judgment was granted with respect to the lab for its failure to see abnormal cells on a Pap smear test slide.

The plaintiff appealed three of the trial court’s rulings, including its refusal to compel more testimony from a witness, its exclusion of expert witness testimony and its granting of partial summary judgment for the lab on the issue of standard of care. Continue reading →