Copeland Stair Valz & Law, LLP Health Law and Regulation Update

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Copeland, Stair, Valz & Lovell, a civil litigation firm, has a reputation for forceful, creative and cost-effective advocacy on behalf of its clients. Formed in 1970 with five attorneys operating out of a downtown Atlanta office, we now have over 80 civil litigation attorneys handling legal matters across the Southeast from offices in Atlanta, GA, Charleston, SC and Chattanooga, TN.

Georgia Court of Appeals Reverses Dismissal Based on Expert Affidavit

The Georgia Court of Appeals has reversed the trial court’s dismissal of a medical malpractice case based on deficiencies in the qualifications of an expert witness. Plaintiffs are the parents of an 18 year old who died of complications from lupus. Plaintiffs sued a psychiatrist and their employer for failure to recognize and treat timely the signs of lupus. Plaintiff attached to the complaint the affidavit of an expert rheumatologist, who opined that he was familiar with the signs and symptoms of lupus. Defendants moved to dismiss, arguing that the expert was not qualified because he is not a psychiatrist and for lack of specificity regarding the alleged negligent conduct. Plaintiffs amended the affidavit with more detail in response. The trial court held a hearing and granted the motion, ruling that the expert did not have sufficient expertise or experience to opine about the standard of care applicable to a psychiatrist.

The Court of Appeals reversed. First, the Court agreed with the trial court that Plaintiffs’ expert had sufficient knowledge of the signs and symptoms of lupus generally, satisfying the basic requirements of 24-7-702(c). Next, the Court held that Plaintiffs’ expert met the standards for familiarity with the standard of care, having actively practiced in diagnosing and treating lupus for more than three of five years before the incident. Finally, the Court reversed based on precedent that Plaintiffs’ expert did not have to be a psychiatrist or having specialized knowledge of the standard of care applicable to psychiatrists. The Court did not offer a lot of reasoning on this last point other than concluding that because the expert was otherwise qualified, it was not necessary for Plaintiffs’ expert to be a psychiatrist.

Take-home: It remains difficult to get a case dismissed for an insufficient expert affidavit. It can happen sometimes, but it is a nuanced and fact-specific analysis.

The case is Russell v. Kantamneni, ___ S.E.2d ___, 2022 WL 1576068 (Ga.Ct.App. May 19, 2022).

Georgia Court of Appeals Remands Negligent Credentialing Case

The Georgia Court of Appeals reversed summary judgment and remanded for further proceedings a negligent credentialing claim against a staffing company that is not a hospital, medical facility, or clinic. Plaintiff originally asserted claims against a CRNA, supervising physician, and a clinic arising out of the death of a patient at the clinic. At the time, the CRNA worked at the pain clinic under a services contract with the defendant staffing company. The CRNA had three prior disciplinary actions in Alabama and Georgia and had another patient complication almost 2 years earlier at the pain clinic. Plaintiff settled with the CRNA, supervising physician, and clinic, who obtained a release of all claims, including vicarious liability.

Plaintiff then sued the staffing company for negligent hiring, training, credentialing, retention, and supervision of the CRNA, medical malpractice, imputed/vicarious liability, corporate negligence, and other claims. The staffing company moved for summary judgment and the trial court granted the motion. The trial court ruled that the CRNA was an independent contractor, the settlement agreement barred the vicarious liability claims, and the negligent hiring and retention claims failed because there was no evidence that the CRNA’s acts or omissions caused the patient’s death.

The Court of Appeals affirmed on everything except the negligent credentialing claim. The Court held there was no evidence the staffing company ratified the acts of the independent contractor CRNA or that Plaintiff was a party to the professional services agreement such that he could recover under it. Of note, the Court wrote that it had not found any binding authority addressing whether a negligent credentialing claim could lie against an entity like a staffing company that is not a hospital, clinic, or similar medical facility. Based on expert affidavits regarding the underlying events, the Court held the negligent credentialing claim should be remanded for briefing on the issue of whether a staffing company can be held liable on this theory.

Take-home: This was a factually complex opinion that turned on several different points. It is worth keeping an eye on this case to see whether the negligent credentialing claim comes back up on appeal.

The case is Miller v. Polk, ___ S.E.2d ___ 2022 WL 128662 (April 29, 2022).

Georgia Court of Appeals Says No Arbitration Based on Spouse Signature

The Georgia Court of Appeals affirmed the denial of a motion to dismiss and to compel arbitration in a medical malpractice case, holding that a husband’s signature on a residency agreement containing an arbitration provision is not binding on the decedent, even if the husband was also the decedent’s power of attorney. In this case, the decedent executed a power of attorney, designating her husband to sign her in or out of any hospital or nursing home, among other things. The decedent was then admitted to a skilled nursing facility. The admission paperwork included an arbitration provision. The form contained multiple signature lines for “resident,” “responsible party,” “resident’s representative,” and “legal representative.” Decedent’s husband signed the form as “responsible party” and “resident’s representative.” The same form included checkboxes underneath “resident representative” and “legal representative,” including “spouse,” which was checked. The form also included a checkbox for “agent under a power of attorney,” which was not checked.

After suit was filed, the facility moved to dismiss or to compel arbitration. The trial court denied the motion and the Court of Appeals affirmed. The Court held that under controlling case law and basic contract principles, the trial court correctly determined that Decedent’s husband only signed the residency agreement in his capacity as the spouse and not in his capacity as an agent, power of attorney, or fiduciary. Notably, the Court wrote that the mere existence of a power of attorney, without more, does not determine whether the person has acted in that capacity when they signed. Further, the Court stated “we now hold that the existence of a POA between spouses, standing alone, is insufficient to bind the principal” under the facts of the case. Part of those facts included the absence of any evidence that decedent was incapacitated.  

Take-home: Courts will strictly construe arbitration agreements. Any entity seeking to use an arbitration provision should review the current cases and consider revising the agreements.

The case is C.R. of Thomasville, LLC v. Hannaford, __ S.E.2d ___, 2022 WL 1012952 (Ga.Ct.App. April 5, 2022).

District Court Excludes Expert and Grants Partial Summary Judgment in Veteran Suicide Case

Raymond George Green, a Gulf War veteran, died from a self-inflicted gunshot wound after suffering for years with post-traumatic stress disorder. His surviving spouse, Michele Green, and children Na’Kesha Green, Raven Simon Green-Harris, Raymond George Green Jr., and Dontair Wilson filed a medical malpractice action against the federal government, alleging his VA doctors were negligent. The family sought $4 million in damages.

The decedent was treated by multiple physicians and other professionals at the Veterans Administration Medical Center (“VAMC”). The events giving rise to the lawsuit began in 2011 when decedent was diagnosed with PTSD and prescribed a variety of medications. The decedent returned to the clinic several times, with his care and medication evolving throughout his treatment. In 2016, the decedent’s spouse unsuccessfully attempted to speak with the decedent’s physicians at the VAMC regarding some concerning behaviors of the decedent. Three months later, decedent’s spouse called the Eisenhower Army Medical Center (EAMC) to report concerns about the decedent. The decedent was examined by emergency medical technicians and was determined to be competent, and thus could not be involuntarily admitted to an emergency room or mental health facility. Decedent’s spouse and the now administrator of the estate visited the VAMC to discuss the decedent’s mental health, and the social worker urged them to bring decedent to the clinic. The decedent, however, declined care. Approximately two months later, the decedent died from a self-inflicted gunshot wound to the head.

The surviving spouse and the administrator of the estate filed the required administrative forms to the agencies, along with a demand letter from their attorney. In their claim, they alleged wrongful death and personal injury for damages. The DVA denied their claim, causing the surviving spouse and the administrator of the estate, along with three additional plaintiffs (the decedent’s three other children) to file the action.

The defendant moved to exclude the testimony of plaintiffs’ second proffered expert and moved for summary judgment on all of plaintiffs’ claims. The Court granted the defendant’s motion to exclude the plaintiffs’ second expert, agreeing with the defendant’s argument that the expert could not define the appropriate standard of care applicable to this case. The Court found his testimony was not sufficiently reliable, not sufficiently based on reliable principles, and would confuse the trier of fact. Thus, the Court held this expert’s testimony failed to withstand this Daubert challenge. 

The Court then analyzed defendant’s various summary judgment theories. The Court granted defendant’s motion for summary judgment as to the additional plaintiffs (the three children), holding that these plaintiffs failed to exhaust their administrative remedies under the Federal Tort Claims Act. The Court lacked subject matter jurisdiction over these plaintiffs. The Court agreed with the defendant that the three additional plaintiffs also lack standing to bring several of their claims. Only the decedent’s surviving spouse is entitled to bring a cause of action for wrongful death here per Georgia’s wrongful death statute. Additionally, only the administrator of the decedent’s estate is entitled to bring a cause of action for the survivorship claims here. Against the defendant’s argument, the Court held that the administrator of the estate was entitled to bring a claim for negligent infliction of emotional distress, which the Court found would be a part of the survival claim as this tort survives to the personal representative of the deceased plaintiff. The Court granted defendant’s summary judgment on plaintiffs’ claims for punitive damages, holding that the United States shall not be liable for punitive damages. The only remaining claims are those brought by the surviving spouse and the administrator of the estate relating to the medical malpractice action.

In its motion for summary judgment, the defendant argued it did not breach the standard of care because it did not have the authority to involuntarily treat the decedent. The Court granted defendant’s motion and found that the Georgia statute only allows for involuntary hospitalization when a physician has personally examined a patient within the preceding 48 hours. Here, the VAMC physicians did not personally examine the decedent at that point.

Defendant argued it could not monitor the decedent’s prescription intake or ensure he received adequate follow-up examinations. Defendant further argued the decedent lacked a provider-patient relationship with one of the physicians at the VAMC and that any alleged malpractice was not the proximate cause of the decedent’s death. The Court denied summary judgment as to this claim, finding that plaintiffs’ expert’s testimony created a jury question regarding whether the physician’s alleged negligent failure to follow up with the decedent was a proximate cause of the decedent’s suicide.

Take-homes: (1) Any attempt by plaintiffs to curtail or sidestep the required procedural administrative steps in an FTCA action can be combatted with a motion for summary judgment. Defendants should be on the lookout for ensuring plaintiffs satisfy the jurisdictional prerequisite of filing a proper claim with the correct administrative agency prior to instituting a federal suit. (2) Georgia’s wrongful death statute is strictly construed. This was further cemented in the recent Georgia Court of Appeals case, Northeast Georgia Medical Center, Inc. v. Metcalf, 2022 WL 872220 (Ga.App. 2022). Ensuring proper parties to these actions is essential. (3) Understanding and complying with O.C.G.A. 37-3-41, examination and treatment for mental illness, is key. The procedural safeguards contained in that provision are there for the purpose of ensuring the individual’s rights are not eroded in the name of medical expediency. (4) An individual’s claim for wrongful death and an estate’s claim for the decedent’s pain and suffering are distinct causes of action. (5) Lastly, make sure your expert is able to intelligently articulate the applicable standard of care for your case!

The case is Michelle Green, Surviving Spouse of Raymond George Green, et al., v. United States of America, 2022 WL 966864 (S.D.Ga., 2022).






Georgia Court of Appeals Vacates $3 Million Verdict

The Georgia Court of Appeals vacated a $3 million verdict in a medical malpractice and wrongful death case and remanded for a new trial on the grounds that the claim was brought by the wrong party. Plaintiffs were the mother and adult children of Francis Mitchell, who died of a bowel perforation following removal of an ovarian mass. Plaintiffs alleged the perforation occurred during the surgery. They also alleged that surgeon’s office staff failed to document properly and relay to the patient information made by the family after surgery. Plaintiffs sought recover for ordinary negligence for the failure to document. The jury returned a general verdict.

On appeal, Defendants claimed that the Plaintiffs were not the proper parties to bring the wrongful death action because Ms. Mitchell had an estranged but living husband. The Court of Appeals agreed, holding that Georgia’s wrongful death statute specifically lays out who has standing to sue, starting with the surviving spouse. Relying on a limited equitable exception, the trial court ruled that Ms. Mitchell’s mother and adult children could bring the claim because Ms. Mitchell’s husband was not. However, the Court of Appeals affirmed that the equitable exception is limited to cases involving minor children only.

The Court of Appeals affirmed the denial of a directed verdict on the ordinary negligence claim. The Court held that Plaintiffs produced some evidence that the failure to document the phone calls “impeded communication with Mitchell’s health care team and violated the medical practice’s own internal policies.” The Court further held that the jury was authorized to conclude that if the staff had properly recorded the calls, Ms. Mitchell would have been sent back to the hospital, at which point she had a 50 percent chance of survival.

Take-home: Georgia’s wrongful death statute is strictly construed and checking the proper parties is a key part of the defense. The appellate courts seem open to allowing more claims of “ordinary negligence” to proceed to the jury and that trend is expected to continue.

The case is Northeast Georgia Medical Center, Inc. v. Metcalf, __ S.E.2d ___, 2022 WL 8722220 (Ga.Ct.App. March 24, 2022).


Its Crossover Day in Georgia

Happy Crossover Day, readers. Today is the day when bills that started in one chamber of the General Assembly make their way over to the other chamber for further consideration. The docket includes:

HB11 – Safe Patient Limits Act – a bill to limit the number of patients per registered nurse in regulated facilities

HB49 – Mental Health Parity Act – a bill to treat insurance claims for mental health treatment on par with physical health

HB961 – Apportionment – bill to authorize apportionment of damages in cases involving one defendant

Stay tuned for more updates as the session progresses.

Georgia Court of Appeals Affirms Exclusion of Opinion Identified on Eve of Trial

The Georgia Court of Appeals affirmed a verdict of $6 million in which the jury apportioned 46% of the fault to the Plaintiff and the trial court excluded an expert opinion disclosed on the eve of trial. Plaintiff took Benicar, a blood pressure medication. She alleged her obstetrician failed to write an alternative prescription while she was pregnant or to refer her to another physician for alternative management. Defendant maintained that Plaintiff failed to heed warnings about taking Benicar during pregnancy and that she was responsible for the outcome.

During the course of treatment, Plaintiff disclosed that she had one prior abortion to her obstetrician. In her deposition, Plaintiff disclosed she had four additional abortions. Plaintiff deposed the defendant obstetrician and the defendant’s expert, both of whom testified affirmatively that the injuries were caused by Plaintiff’s failure to stop taking Benicar despite knowing the risks.

Plaintiff moved to exclude evidence of her prior abortions. After entry of the pretrial order and one business day before the start of trial, Defendant supplemented discovery responses to identify a new opinion from his expert that Plaintiff’s failure to disclose the four additional abortions during the course of treatment was a cause of increased risk for preterm labor and delivery and that had he known, he would have referred her to a perinatologist. The trial court held a hearing and Plaintiff argued that Defendant should not be allowed to play the “gotcha game” with the late disclosure. Defendant argued that the opinion was “critical” for the defense and that the late disclosure was not deliberate. The trial court disagreed and excluded the opinion on the grounds that Defendant and his expert knew of the facts supporting the opinion for years during the litigation but only changed the opinions on the eve of trial. The Court of Appeals affirmed the exclusion of the testimony as a reasonable exercise of the trial court’s discretion.

Defendant also claimed that the apportionment of 46% to Plaintiff was “fatally inconsistent” because the jury must have concluded that Plaintiff was aware of the risks of Benicar and took it anyway. The Court of Appeals disagreed, ruling that the jury was equally authorized to conclude that Defendant breached his duty by failing to warn Plaintiff but that she breached her duty to investigate on her own or listened to another doctor when he expressed reservations about Benicar. Either way, the Court of Appeals concluded they could not disturb the jury’s verdict.

Take-Home: Georgia does not require written reports for expert disclosures and the law regarding the defendant professional as an expert on their own behalf is not developed like it is in Federal court. That being said, if someone develops a new opinion, disclosure early and often is advised.

The case is Dunwoody Obstetrics and Gynecology, P.C. v. Franklin, ___ S.E.2d ___, 2022 WL 679989 (March 8, 2022).

Georgia Court of Appeals Reaches Opposite Conclusions about Arbitration Clauses

In a pair of decisions related to the enforceability of arbitration provisions in the healthcare context, two panels of the Georgia Court of Appeals reached opposite conclusions recently.

In the first case, the Court of Appeals reversed a trial court’s ruling that an arbitration provision was procedurally unconscionable and therefore unenforceable. An elderly patient moved to skilled nursing facility. Before admission, the patient’s daughter and power of attorney faxed the facility of the power of attorney form. Although the facility received the power of attorney, an employee presented the patient “89 pages of admissions documents” on arrival and without the daughter present. The documents were “prepopulated” with spaces for the signatures of both the patient and the daughter.

The patient died following a fall and the family filed suit. The facility filed a motion to dismiss and to compel arbitration, which the trial court denied. The trial court ruled that the facility failed to determine the patient’s mental status or ability to read before having them sign the paperwork, the failure to have the daughter sign the paperwork when knowing she was the power of attorney, and failure to give copies of the paperwork to everyone. The trial court ruled that the provision was unenforceable because it was procedurally unconscionable.

The Court of Appeals reversed, holding that, despite the trial court’s conclusions, the evidence showed that the patient was competent, the financial power of attorney did not divest the patient of the authority to enter into the agreement, and the fact that it was “prepopulated” was not a sign of unconscionability. The Court further held that the failure to give the patient and the daughter copies did not relate to the making of the agreement or fraud to induce an unsophisticated party into signing.

The case is PruittHealth-Augusta, LLC v. Lyell, 2022 WL 590675 (Ga.Ct.App. Feb. 28, 2022).

In the second case, the Court of Appeals affirmed the denial of a motion to dismiss and compel arbitration. This case arose out of claims related to complications from delivery at a hospital. The patient – a pregnant mother – signed two forms for consent to treatment that contained identical arbitration provisions. The arbitration provision stated that they had authority if they were signing on behalf of a child or other person for whom they are legally responsible. The form then had multiple signature lines for “patient or patient representative.” The mother signed both forms on both signature lines but did not include a statement indicating her relationship to the patient. Following a difficult delivery, the baby died two weeks later.

The Court of Appeals affirmed the denial of the motion to dismiss and compel arbitration. Specifically, the Court held that because the mother only signed in her personal capacity and not as the legal representative of the unborn child, the arbitration provision was not enforceable. The Court also found it significant that the unborn child was not identified in the documents as “the patient.”

The case is Emory Healthcare, Inc. v. Engelen, 2022 WL 600762 (Ga.Ct. App. March 1, 2022).

Take-home: the enforcement of arbitration provisions in healthcare contracts is factually nuanced. When different panels of the appellate courts reach different conclusions on the procedure, the only take home is that each case is going to be decided on a fact-specific basis.

Georgia General Assembly Considers Bill to Amend Apportionment Law

House Bill 961 has been introduced this session of the Georgia General Assembly to amend Georgia’s apportionment statute, O.C.G.A. §51-12-33. The proposed amendment is a response to last year’s seminal decision in the case of Alston & Bird, LLP v. Hatcher Management Holdings, LLC, in which the Supreme Court held that a defendant could not ask for a jury to apportion damages in cases involving only one defendant. The proposed bill would amend subsection (b) to allow for apportionment of damages in cases involving “one or more persons,” which changes the language that reads “more than one person.” We will keep an eye on this as it moves through the legislature, so check back here for more updates.