Health Law and Regulation Update
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The Georgia Court of Appeals has affirmed enforcement of a separate arbitration agreement executed by the guardian of an adult ward on admission to the facility. The decision follows remand by the Georgia Supreme Court to vacate a prior decision.
On remand, plaintiff first argued that the arbitration agreement could not be enforced because it lacked consideration separate from the residential admission agreement. In response, the facility argued the consideration was the mutual promise to arbitrate and the Court of Appeal agreed, holding that mutuality of an obligation is sufficient consideration.
Next, plaintiff argued the guardian was fraudulently induced to sign the arbitration agreement because they were made to believe that they were required to sign all of the documents given to them for the patient to be admitted. The Court disagreed, reaffirming the general rule that one cannot claim to be defrauded about a matter equally open to the observation of all parties. The Court noted that plaintiff pointed out that the arbitration agreement included capitalized and bolded language that the patient could still receive services even if the arbitration agreement was not signed. Plaintiff further argued the guardian was not given the opportunity to read the documents, but the Court pointed out that nothing in the record showed the guardian was prevented from reading the agreement.
Lastly, plaintiff argued that the arbitration agreement was void under various statutes and regulations regarding residents rights in long-term care facilities. The Court disagreed, holding that parties to a binding arbitration agreement can waive their constitutional rights, including the right to trial. In addition, Georgia law recognizes arbitration in the Official Code of Georgia, meaning that arbitration is not in contravention of public policy.
Take-home: In general, arbitration provisions are enforceable, but the analysis can be fact-specific.
The case is West v. Bowser, ___ S.E.2d ___, 2022 WL 3571458 (Ga.Ct.App. August 19, 2022).
The Georgia Court of Appeals has held that a wrongful death claim asserted more than two years after the death relates back to the original filing. Plaintiff was the administrator of the estate of a patient who was injured when he was dropped by two employees of an ambulance company. The patient died more than a year after the incident. The administrator originally filed the case as a personal injury/estate claim just before expiration of the two-year statute of limitations. During discovery, plaintiff learned of a connection between the incident and the patient’s death, so the complaint was amended to assert a wrongful death claim. The trial court dismissed the wrongful death claim as untimely.
The Court of Appeals reversed, holding that the wrongful death claim related back to the original filing under O.C.G.A. §9-11-15(c). The Court held that the wrongful death claim arose out of the same core of operative facts. Because the administrator was also the patient’s wife, no new plaintiff needed to be joined. Under Section 9-11-15(c), a claim will relate back to the date of the original pleading when it arises out of the same conduct, transaction, or occurrence in the original pleading.
Take-home: relation back is a broad doctrine that saves many new claims even if the statute of limitations has run. The rule is different if parties are going to be added at the same time, so the context in which the rule is applied is important.
The case is Toomer v. Metro Ambulance Services, Inc., ___ S.E.2d ___, 2022 WL 2285926 (Ga.Ct.App. June 24, 2022).
The Georgia Supreme Court has held that the “two dismissal” rule of O.C.G.A. §9-11-41(a)(3) does not bar a second or third action brought against new parties and remanded the case for further proceedings. In this case, plaintiffs filed a wrongful death suit against a physician, several nurses, and several corporate entities arising out of the death of their newborn son. The case was transferred from Fulton County to Chatham County. Within a few months, plaintiffs sued a hospital entity that employed the nurses and the doctor’s practice group employer in two new lawsuits in Fulton County. Neither defendant was sued in the original lawsuit, but the claims were similar but with different relief.
Later, the Chatham County court entered an order permitting an amended complaint to add both new defendants to the original lawsuit, now in Chatham County in April. In early May, plaintiffs dismissed both Fulton County lawsuits. In October, the two new defendants moved to dismiss the claims against them in Chatham County invoking the “two dismissal rule” and arguing that the claims against them in Chatham County were barred by res judicata. After some other procedural machinations, the Chatham County court dismissed the two defendants and the Court of Appeals affirmed.
In reversing, the Court analyzed the history and jurisprudence of the two-dismissal rule. Under O.C.G.A. §9-11-41(a)(3), the filing of a second notice of dismissal of an action operates as an adjudication on the merits of that action. “The plain text of the statute provides that the two-dismissal rule applies to actions, not claims,” the Court wrote. The Court further explained that “an action” is the “judicial means of enforcing a right.”
Next, Section 9-11-41(a)(3) refers to the second dismissal operating as an adjudication on the merits, but the text of the statute does not expressly provide that the dismissal is conclusive as to a third action or that it has the effect of res judicata. Accordingly, Section 9-11-41(a)(3) is not a true defense, res judicata is the defense and the trial court must analyze whether there is truly res judicata. For there to be res judicata, there must be three things: (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits. If the only thing that is pled is the application of 9-11-41(a)(3)’s two-dismissal rule, then only one factor – adjudication on the merits – has been established. The invoking defendant must also prove the other two factors before there is res judicata.
In this case, the Court held that the Court of Appeals erred by holding that the action against the two new defendants were barred because the original lawsuit sought recovery on the same claims that were dismissed twice. The Court held that the Court of Appeals erred in holding that so long as the second voluntarily dismissed action and the later action shared the same claims, the two-dismissal rule had res judicata effect. The Court reversed and instructed the Court of Appeals to vacate part of its opinion and remand to the trial court for further proceedings into whether there was res judicata.
Take-home: the bottom-line is that the trial court needed to analyze whether the two new defendants were “parties or privies” to the original lawsuit as part of its res judicata analysis and that did not happen. The legal error was in focusing on the wrongful death claims being the same and drawing the conclusion that the actions were barred because the claims were the same. This case is a good reminder of the difference between an action and claims and between res judicata and other preclusion theories.
The case is Joyner v. Leaphart, ___ S.E.2d ___, 2022 WL 2230629 (Ga.Sup.Ct. June 22, 2022).
In the return appearance of a case remanded from the Georgia Supreme Court for further determination, the Georgia Court of Appeals refined its ruling regarding a nursing home arbitration agreement. Plaintiff was the guardian for a nursing home resident, a mentally incapacitated adult. On the resident’s admission, the guardian signed a facility admission agreement, which contained an arbitration clause, and a separate arbitration agreement. The agreements referred to the facility, the resident, and/or the resident’s representative and contained provisions regarding legal review of the agreement. The guardian signed an affidavit saying she was told that the agreements were for admission, were not explained to her, and that she was not told she had the right to have them reviewed by an attorney.
The guardian alleged that the resident was assaulted by his roommate on multiple occasions. In response to the complaint, the facility moved to compel arbitration. The trial court denied the motion, ruling that the arbitration clause was unconscionable.
On remand, the Court of Appeals held that the trial court erred in ruling that the clause was unconscionable. First, the Court held that the arbitration agreements were not “procedurally unconscionable,” writing that “[a]lthough it would have been preferable for someone . . . to have explained the Arbitration Agreement in a form and manner” the guardian understood, a party to a contract is presumed to have read and understood the contents if they sign it. Plaintiff also alleged that the arbitration provisions were invalid because various regulations prohibit execution of it as a precondition to admission. The trial court rejected this and the Court of Appeals affirmed, based on explicit disclaimer language.
Take-home: arbitration agreements and provisions are generally enforceable, but a lot turns on who is signing it, the words used in the agreement, and similar contract concepts. The rules regarding contract construction apply.
The case is CL, SNF, LLC v. Fountain, ___ S.E.2d ___, 2022 WL 2207070 (Ga.Ct.App. June 21, 2022).
The Georgia Court of Appeals affirmed the dismissal of a wrongful death claim brought by the parents of three children based on expiration of the two-year statute of limitations. In October 2016, a mental health patient was discharged from a private facility where he was involuntarily committed. The patient had a history of suicidal and homicidal ideations. Plaintiffs alleged that the physician in charge of the patient was aware that he posed a danger to himself and others but discharged him anyway.
Three days later, the patient attended a bonfire with his sister and others. After an argument, he left and returned with a firearm, killing four people. In January 2021, the parents of three of the children filed lawsuits against the physician and corporate owners of the facility for improper discharge. The physician moved to dismiss the wrongful death claims based on expiration of the two-year statute of limitations. The parents argued that the statute of limitations was tolled based on O.C.G.A. §9-3-99, which tolls statutes of limitations for victims of crimes until prosecution for that crime. The trial court granted the motion and the parents appealed.
In affirming, the Court of Appeals held that the word “victim,” as used in the statute, refers to the person who is the direct object of the crime based on how the term is used in other statutes. Because Section 9-3-99 does not expand the term victim to include family members of victims, the Court concluded that the tolling statute does not apply.
Take-home: the wrongful death statute is in derogation of common-law and is strictly construed. Very few things can toll the statute of limitations for wrongful death.
The case is Hicks v. United Health Services, ___ S.E.2d ___, 2022 WL 2186441 (Ga.Ct.App. June 17, 2022).
The Georgia Court of Appeals affirmed summary judgment for an emergency physician on grounds that the statute of response barred an eleven-year-old claim. In October 2005, plaintiff presented to the emergency department claiming that she might have been sexually assaulted. Plaintiff reported that she had been awake for three or four days smoking crack cocaine when she fell asleep in an abandoned house. She woke up to find her pants around her ankles and two or three men walking around the house. She called the police and went to the emergency department.
In the emergency department, plaintiff presented as incoherent and unable to articulate. She refused a sexual assault examination. The emergency department physician ordered a CT scan of plaintiff’s head, which did not show evidence of trauma. The CT scan was suspicious for a pituitary mass. The radiologist recommended further evaluation with an MRI and noted that the results were called to the emergency physician.
Plaintiff testified that she did not remember anyone discussing the CT scan results with her. The medical record contained a handwritten note from the emergency physician that read “CT” with an arrow to the acronym “NAP,” which the emergency physician testified meant “no acute process.” The emergency physician testified she did not recall the clinical interaction but that it was her practice to document like that when she discussed radiology results with a patient. Plaintiff was transferred to another facility with her medical records, including the CT scan results. Plaintiff had no other interaction with the emergency physician.
In May 2016, Plaintiff returned to the same hospital. Plaintiff claimed she then learned of the pituitary mass for the first time. In May 2018, plaintiff filed suit against the emergency physician from October 2005, claiming failure to diagnose and treat. Plaintiff claimed the five-year statute of response was tolled due to fraudulent concealment or known withholding of the CT scan results. The trial court granted summary judgment and the Court of Appeals affirmed based on expiration of the statute of repose. The Court made it clear that while fraud may equitably estop a defendant from realizing the benefit of the statute of repose, there must be proof of a separate and independent act of fraud, meaning a known failure to reveal malpractice to deter the patient from filing suit.
Take-home: The statute of repose is alive, well, and continues to be an absolute bar except in the most narrowest of circumstances.
The case is Smith v. Kayfan, ___ S.E.2d ___, 2022 WL 2113524 (June 13, 2022).
In an unusual set of circumstances, the Georgia Court of Appeals affirmed the denial of a motion to vacate a consent order dismissing with prejudice a wrongful death claim that was filed under the mistaken belief that the claim was time-barred. Plaintiff’s wife died during childbirth with the child being born alive. Plaintiff sued multiple parties for malpractice and wrongful death, in his capacities as administrator of the estate and parent of the minor child in December 2017. In June 2019, plaintiff added two individual doctors and asserted estate and wrongful death claims against them. The doctors moved to dismiss the wrongful death claim on the grounds that they were barred by the two-year statute of limitations. Plaintiff’s original lawyer did not respond to the motions but agreed to a consent order dismissing the wrongful death claims with prejudice. The rest of the case and claims remained.
Shortly after entry of the consent order on the docket, plaintiff obtained additional counsel. New counsel claimed that they discovered the consent order in January 2021 and that, after researching it, they realized the wrongful death claims were not time-barred because of the tolling provisions applicable to minors. Plaintiff filed a motion to vacate the consent order. A new judge assigned to the case after the retirement of the original judge denied the motion to vacate. The new judge recognized he had the discretion to vacate the order, but declined to do so because it appeared the consent order was submitted knowingly and by agreement, even if based on a mistake of law. The Court of Appeals affirmed. On appeal, plaintiff argued the trial court had a duty to protect the interests of the minor and that the failure to weigh the potential harm to the child’s interests was an abuse of discretion. The Court disagreed. The Court distinguished a consent judgment from regular judgment because a consent judgment reflects the parties’ intent to resolve a dispute, whether through settlement, compromise, or otherwise. Because a consent judgment represents finality, the Court held that such a judgment should be treated as final, even if it can be modified under the rules regarding vacatur.
The Court rejected plaintiff’s argument that the trial court had an independent duty to protect the interests of the minor child under these circumstances. In this case, the child’s interests were to be protected by her father and her counsel.
Take-home: this is a pretty unique case. Georgia does not have robust case law regarding vacatur, but this case shows the broad discretion that trial courts have when revisiting prior rulings.
The case is Parrish v. St. Joseph’s/Candler Health System, __ S.E.2d ___, 2022 WL 2070976 (June 9, 2022).
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).
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).