2007 GSHRM Update on the law of
Medical Negligence
TABLE OF CONTENTS
Table of Cases i
1. Causation 1
2. Contribution 10
3. Directed Verdict 11
4. Evidence 12
5. Expert Affidavit and Testimony 13
6. Immunity 19
7. Jury Instructions 22
8. Jury Selection 23
9. Statute of Limitations and Statute of Repose 23
10. Summary Judgment 44
11. Tort Reform 48
12. Vicarious Liability – Joint Venture 51
2007 GSHRM Update on the law of
Medical Negligence
TABLE OF CASES
Abramson v. Williams, 281 Ga. App. 617 (2006) 48, 49
Al-Jabi v. Canas, 2007 Ga. LEXIS 194 (February 26, 2007) 34
Allen v. Wright, 280 Ga. App. 554 (2006) 49
Allen v. Wright, 2007 Ga. LEXIS 343 (May 14, 2007) 49
Amu v. Barnes, 2007 Ga. App. LEXIS 739 (July 2, 2007)………………………………... 39
Balotin v. Simpson, 2007 Ga. App. LEXIS 499 (May 9, 2007)…………………………… 41
Baskette v. Atlanta Center for Reproductive Medicine, LLC, 2007 Ga. App. LEXIS 593 (May 30, 2007)…………………………………………………………………………………… 36
Beach v. Lipham, 276 Ga. 302 (2003) 22
Blackmon v. State, 272 Ga. 858, 860 (2000) 22
Bd. of Regents of the Univ. Sys. of Ga. v. Canas, 2007 Ga. LEXIS 193 (February 26, 2007) 34
Bousset v. Walker, 2007 Ga. App. LEXIS 427 (April 13, 2007) 29
Brown v. Coast Dental of Georgia, PC, 2007 Ga. App. LEXIS 128 (February 15, 2007) 35
Brown v. Tift County Hospital Authority, 280 Ga. App. 847 (2006) 13
Campbell, Odom & Griffith, PC v. The Doctors Company, 281 Ga. App. 684 (2006) 10
Canas v. Al-Jabi, et al., 282 Ga. App. 764 (2006) ………………………………………… 18, 30
Conley v. Children’s Healthcare of Atlanta, Inc., 279 Ga. App. 792 (2006) 44
Cotten v. Phillips, 280 Ga. App. 280 (2006) 48
Crisp Regional Hospital, Inc. v. Sanders, 281 Ga. App. 393 (2006) 49
Deller v. Smith, 250 Ga. 157 (1982) 25
EHCA Cartersville, LLC v. Turner, 280 Ga. 333 (2006) 50
Elred v. Blue Cross & Blue Shield of Ga., 274 Ga. App. 798 (2005)……………………… 41
Gaddis v. Chatsworth Health Care Ctr., Inc., 282 Ga. App. 615 (2006) 15
Gibson v. Thompson, 283 Ga. App. 705 (2007) 34
Gilley v. Hudson, 283 Ga. App. 878 (2007) 21
Griffin v. Burden, 281 Ga. App. 496 (2006) 49
Haughton v. Canning, 2007 Ga. App. LEXIS 785 (July 6, 2007) …………………………. 9
Health Management Associates, Inc. v. Bazemore, 2007 Ga. App. LEXIS 749 (July 3, 2007) 18
Hosp. Auth. of Gwinnett County v. Rapson,283 Ga. App. 297 (2007) 51
Howell v. Shumans, 281 Ga. App. 459 (2006) 16
James v. Hospital Authority of the City of Bainbridge, 278 Ga. App. 657 (2006) 15
Johnson v. Thompson, 2007 Ga. App. LEXIS 799 (July 9, 2007)………………………… 38
Kaminer v. Canas, 2007 Ga. LEXIS 192 (February 26, 2007) 34
King v. Zakaria, 280 Ga. App. 570 (2006) …………………………………………..1, 11, 12, 22
Kitchens v. Brusman, 280 Ga. App. 163 (2006) 23, 51
Mays v. Ellis, 283 Ga. App. 195 (2007) 48
MCG Health, Inc. v. Barton/ Board of Regents of the University System of Georgia v. Barton, 2007 Ga. App. LEXIS 584 (May 25, 2007) ………………………………………………. 6
MCG Health, Inc. v. Canas, 2007 Ga. LEXIS 196 (February 26, 2007) 34
Miranda v. Fulton DeKalb Hosp. Auth., 2007 Ga. App. LEXIS 287 (March 14, 2007) 2, 18
Mountain Orthopedics & Sports Medicine, PC v. Williams , 2007 Ga. App. LEXIS 385 (March29, 2007) 18
Murrah v. Fender et al., 282 Ga. App. 634 (2006) 16
Northlake Medical Center, LLC v. Queen, 280 Ga. App. 510 (2006) 49
Pogue v. Goodman,282 Ga. App. 385 (2006) . 25
Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (1986) 20, 22
Renz v. Northside Hospital, Inc., 2007 Ga. App. LEXIS 666 (June 18, 2007) …………… 4
Ricketts v. Advanced Dental Car, LLC., 2007 Ga. App. LEXIS 552 (May 22, 2007)……. 46
R.J. Taylor Memorial Hospital, Inc. v. Beck, 280 Ga. 660 (2006) 50
Scott v. Martin, 280 Ga. App. 311 (2006) 14
Sellers v. Burrowes, 283 Ga. App. 505 (2007) . 23
Simmons v. Sonyika, 279 Ga. 378, 379 (2005)……………………………………………. 42
Stafford-Fox v. Jenkins, 282 Ga. App. 667 (2006) 26, 37
Steele v. Atlanta Maternal-Fetal Med., PC,283 Ga. App. 274 (2007) 13
Tenet Healthcare Corporation v. Gilbert, 277 Ga. App. 895 (2006) 48
Thomas v. Medical Center of Central Georgia, 2007 Ga. App. LEXIS 588 (May 29, 2007) 35
Travick v. Lee, 278 Ga. App. 823 (2006) 19
Walker v. Giles, 276 Ga. App. 632, 644 (2005)…………………………………………… 9
Waycross Urology Clinic, PC v. Johnson, 279 Ga. App. 195 (2006) 27
Wells v. Rogers,281 Ga. App. 473 (2006) 20
Wesley Chapel Foot and Ankle Center v. Johnson, 2007 Ga. App. LEXIS 834 (July 16, 2007) 43
Whitley v. Piedmont Hosp., Inc., 2007 Ga. App. LEXIS 389 (March 29, 2007) 45
Williams v. Alvista Healthcare Ctr., Inc., 283 Ga. App. 613 (2007) 17
Woodruff v. Gould, 280 Ga. 757 (2006) 50
Young v. Williams, 274 Ga. 845 (2002) 29
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1. Causation
King v. Zakaria, 280 Ga. App. 570 (2006).
Dr. Zakaria performed surgery to remove a cancerous tumor from the patient’s lung. At surgery, he determined it would be necessary to remove the patient’s entire lung. In doing so, he needed to close major blood vessels with sutures. Postoperative x-rays were normal. When the doctor left the hospital on the evening of surgery, the patient was resting comfortably and was in stable condition; he did not change significantly during the night. However, after additional postoperative x-rays were obtained the following morning, the patient suddenly began to have trouble breathing and his condition quickly deteriorated. He eventually went into cardiac arrest, and the doctor was paged. Dr. Zakaria immediately went to the hospital, examined the patient, and ordered tests, but the patient could not be revived. On autopsy, the pathologists concluded that the patient died from massive bleeding, from the pulmonary artery, where the artery should have been tied closed.
The executrix of the estate filed suit against the doctor alleging that the doctor failed to properly close the pulmonary artery during surgery. Plaintiff further alleged that the doctor’s postoperative monitoring and treatment violated the standard of care in that he should have been available to review the postoperative x-rays the following morning. Finally, the plaintiff alleged that the doctor abandoned the decedent after surgery by not having a qualified physician immediately available in the event of a complication requiring surgical intervention.
The evidence established that post-operative suture failure was a recognized risk and complication of this surgery, which could occur in the absence of negligence. The undisputed evidence further established that if the artery had been left untied during surgery, the patient would have bled to death within a matter of minutes. Finally, the undisputed evidence at trial showed that once the decedent patient started bleeding from a loosened suture at the artery, even if surgery was started, it could probably not be performed in time to save his life. There was further evidence that once the patient began to bleed post-operatively, his condition was “unsalvageable.” The Court of Appeals held that there was insufficient expert testimony, to a reasonable degree of medical probability, that the decedent’s life would have been saved if Dr. Zakaria or a qualified surgeon had been present.
Further, the Court held that there was no evidence to show to a reasonable degree of medical certainty that the decedent would not have died, but for the surgeon’s failure to read the x-rays in question. The Court acknowledged the evidence showing that the x-rays taken on the first postoperative day showed an increased opacity in the chest cavity, which could have indicated internal bleeding. However, the evidence also established that once the patient began to bleed postoperatively, his condition was essentially unsalvageable. Therefore, the Court held that the plaintiff did not meet her burden to show that the failure to read the x-rays caused injury.
The plaintiff pointed out that, on cross examination of one of the defense experts, the expert stated that the surgeon “possibly could have had a chance” to return the patient to the operating room and save his life. The Court held that this testimony was also insufficient to meet the plaintiff’s burden to establish proximate cause.
Miranda v. Fulton DeKalb Hosp. Auth., 2007 Ga. App. LEXIS 287 (March 14, 2007)
This case involved a 25-year-old college student who was acting strangely while at a gas station. The police were summoned, who observed that the student seemed disoriented. He also said that he was thinking about hurting himself or others. Rather than impounding his car, police left it at the gas station and left the student with his keys. He was ultimately transported to Grady Memorial Hospital, where he was evaluated in the Emergency Department. He continued to express thoughts of harming himself. The student was placed in soft wrist restraints pending transfer to Grady’s psychiatric unit. While a patient was in restraints, it was Grady’s policy to check the patient every 15 minutes, rather than put the patient under continuous observation.
Before the patient could be transferred to the psychiatric unit, it was discovered that he had escaped from his restraints and left the hospital. The patient had gone to his car and drove over 300 miles, to North Carolina. At about 6:30 a.m. the next morning, he left his car in the emergency lane of the highway and committed suicide by running in front of a northbound vehicle.
The student’s parents initiated a lawsuit against Grady and several physicians. At trial, the plaintiffs’ expert testified that continuous monitoring would have made the patient’s escape from Grady “less probable” and “much more difficult.” The expert could not say that, with continuous monitoring, he would not have escaped. He also stated that with continuous monitoring at Grady, the patient’s later suicide would have been “a lot less likely.”
At trial, the court granted a motion for directed verdict on behalf of the defendants. The Court of Appeals affirmed, holding that the allegation of the lack of continuous monitoring was too remote as a matter of law to be the proximate cause of the patient’s suicide the next day. The court concluded that the causal connection between the events at Grady and the later events at North Carolina was attenuated at best.
The Court of Appeals also rejected the plaintiffs’ contention that the claim referenced was one for ordinary negligence rather than medical malpractice. The court distinguished previous cases involving claims where the medical care providers deliberately released patients who then subsequently committed suicide. Here, the court pointed out that Grady did not intentionally release the patient from its facility, but that the patient left without permission and despite being restrained.
Renz v. Northside Hospital, Inc., 2007 Ga. App. LEXIS 666 (June 18, 2007)
On July 1, 2002, Jessica Renz underwent a C-2 nerve block at Northside Hospital to treat migraine headaches. The procedure involves inserting a needle into the neck to the level of the second cervical vertebrae and injecting medication into the nerve root. Following the surgery, Renz, crying and complaining of nausea, was taken to the recovery room where she was monitored and cared for by Northside Nurse Taylor. After about an hour-and-a-half in the recovery room, Renz, still complaining of a headache, was discharged by the nurse.
About two hours later, Renz called Northside complaining that her headache was not getting better and that she was in a lot of pain. Northside Nurse Salisbury told Renz to give the procedure a chance to work, to go into a dark room and try to sleep, to fill her prescription for an anti-inflammatory medication, and to call back if she experienced further problems. During her deposition, Nurse Salisbury stated that she did not know if she notified a physician of Renz's call, and the operating physician stated that he was not made aware of the call.
Later in the evening, Renz began having trouble breathing and walking, subsequently losing consciousness. Her boyfriend drove her to the emergency room at Piedmont Hospital, where a neurosurgeon diagnosed Renz as having suffered a stroke caused by a lack of blood flow to the right side of her cerebellum.
Renz sued Northside and the operating surgeon, claiming that during the C-2 nerve block, a vein was lacerated, that after the procedure Renz was not properly monitored, and that she was negligently discharged from the hospital. Northside moved for summary judgment, and the trial court granted the motion on the ground that there was no evidence that any breach of the standard of care by a Northside employee proximately caused Renz's alleged damages.
On appeal, Renz asserted that the trial court erred in finding a lack of evidence of proximate cause as the record indicated expert testimony that the negligence by Northside nurses was the contributing cause of Renz's injuries. The Court of Appeals agreed, but stressed that the only issue before it was whether there was evidence that a Northside nurse's negligence was a contributing cause of Renz's injury. Hence the court held that, the doctor's purportedly expert testimony amounted to some evidence of proximate cause.
The record indicated that Dr. Mitchell Tobias, a board certified anesthesiologist, opined in his deposition that during the C-2 block procedure, Dr. Hines mistakenly inserted the needle and injected medication into Renz's vertebral artery, causing Renz's stroke. He further testified that in his opinion, there were breaches of that standard of care by the Northside nurses monitoring Renz- mistakes which contributed to her injuries. Based on Renz's nausea, headache, and crying in the recovery room, it was inappropriate for the nurse to discharge her from the hospital without a thorough exam by the treating physician. Further, it was a violation of the applicable standard of care for Nurse Salisbury to fail to report Renz's post-discharge call complaining of headache and severe pain to a doctor.