Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals has affirmed a defense verdict in a case in which the plaintiff claimed that altered records by a non-party was reversible error. In 2012, Plaintiff was diagnosed with stage 3 breast cancer. A surgeon performed a mastectomy and then plaintiff underwent chemotherapy with the defendant oncologist. A year later, the surgeon obtained a PET scan and an MRI in preparation for reconstructive surgery. The PET scan showed a nodule behind the sternum and the radiologist recommended further imaging. Plaintiff met with the surgeon, but was not told about the abnormal result.

The following month, the defendant oncologist met with Plaintiff and told her there was no evidence of disease. The oncologist documented she would follow up on the results of the PET scan and CT scan. Apparently, the defendant oncologist did not follow up, assuming the ordering surgeon did. The cancer returned but was not discovered until 2015, at which point Plaintiff was diagnosed with stage IV cancer.

Plaintiff alleged that the defendant oncologist failed to follow up on the PET scan while documenting there was no evidence of disease. At trial, Plaintiff sought to exclude the non-party surgeon’s records, which contained two slightly different versions of a note regarding the discussion about reconstructive surgery and the results of the PET scan. The inference from the altered record was that Plaintiff was non-compliant with treatment. Plaintiff moved to exclude records because the non-party surgeon altered the note after litigation, that the record was not certified, and that the alteration was a criminal violation. In response, the defendant oncologist, who wanted to use the record to point the finger at the non-party surgeon, submitted a certification for the records. The trial court denied the motion and admitted the records. At trial, the defendant oncologist did not put up evidence or argue that Plaintiff was non-compliant.

Plaintiff claimed on appeal that the records should not have been admitted because they were altered fraudulently and therefore did not fall within the business records exclusion. The Court of Appeals affirmed, holding that it was highly probable that the records did not result in harmful error, meaning even if it was error, it did not lead to the defense verdict. The Court reasoned that Plaintiff had to prove their case against the defendant oncologist and that because the defendant oncologist did not claim Plaintiff was non-compliant, the mere fact that the non-party defendant surgeon suggested she was did not cause the defense verdict.

Take-home: harmful error remains the test for appellate rulings in Georgia. This is a good reminder that the Georgia Court of Appeals is a court of errors, not a court of review, which means that it has to be a legal error that affects the outcome to result in a reversal.

The case is Ross-Stubblefield v. Weakland, ____ S.E.2d ___, 2021 WL 2010086 (May 20, 2021).

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