Articles Posted in Medical malpractice

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On TV and in movies, we have all seen the “surprise witness” called at trial. But in reality, surprise witnesses are not supposed to occur, and Georgia law permits harsh penalties for parties that fail to disclose witnesses. In a recent Georgia medical malpractice case, one plaintiff found this out when it was too late.

GavelIn that case, the plaintiff filed a medical malpractice claim against a doctor and his medical practice in Fulton County. The plaintiff claimed that the doctor failed to timely diagnose and treat an abscess in his thoracic spinal cord, which paralyzed him. The parties engaged in discovery, and four years later, when the case went to trial, the plaintiff called a nurse to testify. The nurse was not specifically identified as a witness in the plaintiff’s discovery responses or in the pre-trial order, and the defendant argued she should be excluded as a witness.

In the early stages of discovery, the defendant asked the plaintiff to identify potential witnesses. The plaintiff responded by stating that he objected to the request and directing the defendants to his complaint, affidavits, and medical records. He also stated that he would supplement his response if more information became available. The plaintiff later supplemented his responses, but he never identified the nurse as a potential witness or a person with knowledge relevant to the complaint.

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In Georgia medical malpractice cases, plaintiffs must carefully follow all of the relevant procedural requirements or risk having their case dismissed. In a recent case, a court had to consider whether the plaintiffs properly named the defendants and amended their expert affidavit after the statute of limitations had passed.

Chest X-RayIn that case, the patient was admitted to a medical center in May 2011. Three days after she was admitted, she was found unresponsive due to a hypoglycemic event. She was discharged for hospice care with a severe brain injury and died the following month. In May 2013, the executor of the woman and her husband’s estate filed a claim against various defendants, including the hospital and the attending doctors, along with an expert affidavit. The plaintiffs then withdrew the lawsuit and properly filed a renewal complaint in March 2014. In this complaint, they added a medical group as a defendant. The affidavit filed with the renewal complaint did not specifically mention the medical group by name. The plaintiffs then filed a third affidavit, which included specific acts of negligence allegedly committed by the medical group. The plaintiffs finally filed another affidavit, stating that the expert’s opinion regarding negligence extended to the medical group’s employees and physicians who treated the patient.

The medical group filed a motion for partial summary judgment, arguing that the plaintiffs’ claims should be dismissed as untimely. They contended that the claims against the medical group employees or physicians, apart from two doctors specifically alleged in the complaint, were filed after the statute of limitations had expired.

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Earlier this month, the Georgia Supreme Court issued a written opinion in a medical malpractice case that was brought by a man who was paralyzed from the waist down after undergoing surgery that was performed by the defendant doctor. The court was tasked with determining whether the trial court was proper to exclude the testimony of one of the plaintiff’s witnesses because the plaintiff had failed to disclose the name of the witness during pre-trial discovery.

Pile of PapersUltimately, the court concluded that the trial court was within its discretion to prevent the witness from testifying, and it affirmed the jury’s defense verdict.

The Facts of the Case

The plaintiff began seeing the defendant doctor in 2004 for neck and back pain. In 2009, the defendant diagnosed the plaintiff with degenerative disc disease and recommended surgery. After the surgery, the plaintiff experienced complications, eventually requiring a subsequent surgery, which was also performed by the defendant. After the second surgery, the plaintiff was paralyzed from the waist down.

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Last month, the Georgia Court of Appeals issued a written opinion in a medical malpractice case that was brought by a man who developed a stage IV sacral ulcer (bed sore) while under the care of the defendant health care provider. Ultimately, the court dismissed the plaintiff’s complaint because the expert affidavit that is required to be filed with medical malpractice actions was lacking in specificity.

Hospital BedThe Facts of the Case

The plaintiff was admitted to the defendant health care provider while he was unconscious. During his stay, he developed a stage IV sacral ulcer, which he claimed was caused by the negligence of the provider’s staff. The plaintiff filed a lawsuit against the health care provider, alleging that the hospital “had failed to properly assess and treat the ulcer and had failed to appropriately advocate for his care while he was unconscious.”

In support of his claim, the plaintiff submitted the affidavit of a nurse. The affidavit – which is required in all medical malpractice cases – stated that, in the nurse’s opinion, the hospital was negligent because it failed to “properly assess and treat [the plaintiff’s] wounds; and appropriately advocate for an unconscious patient to ensure that said patient received the monitoring and treatment required.”

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In a recent case, a husband and wife brought a Georgia medical malpractice claim, alleging that the man’s doctors and nurses failed to correctly position and reposition him before and during surgery, causing a permanent injury to his arm. However, a Georgia appellate court recently decided that the plaintiffs failed to show that the defendants’ actions or inactions caused the man’s injury.

SurgeonThe plaintiff underwent a robotic-assisted laparoscopic prostatectomy surgery, an operation for prostate cancer. The man had to be positioned with his arms tucked to his side, and his body was wrapped with sheets and towel clips. The surgery lasted over nine hours, and his body was never repositioned. After the surgery, the man complained of pain in his shoulders and arms. He underwent a second surgery on the next day to relieve pressure in his right arm, but he lost the complete use of his right arm and hand.

The plaintiffs presented a medical expert, who testified that he was not certain what led to the man’s injury, and it could have been the way he was positioned, the length of the surgery, or both. He also could not say at which point during the surgery the injury developed. He said that they believed the way he was positioned or the failure to reposition him, or a combination of these actions, caused the injury.

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In a recent case, a Georgia court of appeals upheld a jury award against a doctor after a patient underwent a procedure to relieve back pain. The woman alleged that she suffered catastrophic brain damage from oxygen deprivation after she had a procedure done to relieve her back pain. While her lawsuit was still pending, the woman died, and her husband then amended the lawsuit to add a wrongful death claim.

Operating RoomAccording to the allegations, the woman experienced chronic back pain and began being treated by an anesthesiologist and pain management specialist in 2008. The doctor gave her two epidural steroid injections during two separate visits at that time. When the woman went to receive a third injection, the procedure did not go according to plan. The doctor was running late, and the woman ended up waiting about 50 minutes in the operating room after she had begun receiving a pain reliever and propofol, a medication that decreases consciousness and memory.

The doctor began the procedure about 10 minutes after he arrived, and the oxygen monitor signaled that the woman’s oxygen level had dropped below 90 percent. The doctor told the nurse to increase the woman’s oxygen flow, and he concluded she was still breathing. The surgical tech was concerned the woman was not breathing and asked the doctor several times if she could turn the oxygen level up higher, but he told her not to do that. The doctor continued the procedure and maintained that the woman was still breathing despite poor oxygen readings. The doctor finished the procedure and then gave the woman sedation reversal drugs and increased her oxygen flow.

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In a recent case, Yugueros v. Robles, Georgia’s Supreme Court decided whether a party’s admission could be admitted even though it did not meet the requirements for an expert opinion.

Case BooksFacts of the Case

A woman received liposuction, buttock augmentation, and abdominoplasty surgery from a plastic surgeon in 2009. Shortly afterward, she experienced abdominal pain and went to an emergency room. The hospital did not figure out the cause of her pain and released her. The woman’s pain increased, and her husband contacted the plastic surgeon. The plastic surgeon examined her and ordered tests, one of which showed air in her abdomen. The woman died several hours later. The woman’s husband sued the plastic surgeon, the medical practice where she had the surgery done, and others for malpractice.

The man served a notice of deposition to the medical practice, requesting to depose, or question, its representative. Under Georgia statute OCGA 9-11-30(b)(6), an organization can designate a representative to answer questions for the organization in a deposition. The practice designated its founder and owner, who was a doctor herself. In the deposition, the attorney asked the owner if ordering a CT scan would have been part of the standard of care, given her understanding of the case. The owner answered that it would have been and explained some details concerning the appropriate care in the plaintiff’s case.

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Procedural rules can make a huge difference in any case. Even the strongest case can fail due to a failure to follow the rules. A recent case showed how even though the plaintiff failed to follow the rules, the case was able to proceed because the defendant failed to follow the rules as well.

Doctor's ToolsIn this case, a man’s family filed a medical malpractice lawsuit against the man’s treating doctor and medical provider, Mission Health of Georgia, after the man died. The family claimed the doctor and Mission Health were negligent in treating him. Mission Health responded to the complaint and stated the family failed to file an expert affidavit, as required under Georgia law. The doctor similarly argued the family failed to file the expert affidavit, and the doctor also filed a motion to dismiss the case due to that failure. The woman withdrew the complaint and refiled the claim about six months later.

In the new complaint, the family attached an expert affidavit as required. The doctor re-filed his motion to dismiss, based on the family’s original failure to file the expert affidavit. The court granted the motion to dismiss as to the doctor, due to the failure to attach the expert affidavit in the original complaint.

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The Georgia Court of Appeals has reversed a trial court’s decision that wrongful death beneficiaries are bound to arbitrate claims against a nursing home when the decedent’s power of attorney holder signed an arbitration agreement when the decedent was admitted to a nursing home.  The Appeals court reasoned that while the power of attorney did bind the estate to arbitrate five other claims (e.g., medical malpractice, negligence, fraud, etc.) the power of attorney did not bind the wrongful death beneficiaries to the arbitration agreement.   Continue reading

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Medical malpractice suits can seem daunting to patients, especially when the patient feels they don’t quite understand as much as their doctors do. The truth is that you can sue a doctor for medical malpractice in the case of misdiagnosis. If you believe that you have a medical malpractice lawsuit, it’s important that you contact a personal injury lawyer in Atlanta who specializes in malpractice cases. McAleer Law has a proven track record of recovering monetary damages for our clients in Georgia.
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