Articles Posted in Medical malpractice

Following the procedural rules is important in any claim, but this is particularly the case in a Georgia medical malpractice claim, as failing to follow the procedural requirements can result in dismissal of a claim right from the start. Understanding the exceptions is just as important, as one recent case showed.

In that case, a woman filed a medical malpractice claim against a doctor and his practice. The defendants argued the case should be dismissed because the woman failed to file an expert affidavit with the complaint, and the defendants claimed she also failed to retain an attorney more than 90 days before the expiration of the statute of limitations.

The plaintiff had alleged she was injured during a cervical node excision performed on August 1, 2014. The plaintiff filed the medical malpractice claim on August 1, 2016. She did not file an expert affidavit, but attached the affidavit of her attorney who testified that the woman had retained him on July 29, 2016. He testified that because the statute of limitations would expire within ten days of the filing, an expert affidavit could not be prepared in time. The woman amended her complaint on September 13, 2016, attaching the expert affidavit as required.

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Recently, a state appellate court issued a written opinion in a Georgia medical malpractice case requiring the court to determine if a jury’s zero-dollar award for the plaintiff’s pain-and-suffering claim was adequate as a matter of law. Finding that the award was “clearly inadequate,” the court reversed the award. However, since the case involved allegations that the plaintiff was also partially at fault, the court ordered a new trial on both the issues of damages as well as liability.

The Facts of the Case

The plaintiff, who had a history of high blood pressure, woke up one evening with the worst headache she had ever experienced. Later, the plaintiff stated to experience diarrhea and vomiting. After a couple of days, the symptoms had not subsided, and, thinking she had a bad case of food poisoning, the plaintiff went to the emergency room at the defendant hospital.

While at the hospital, the plaintiff explained her symptoms, including her excruciating headache. However, the intake nurse only documented the plaintiff’s gastrointestinal-related symptoms in her chart. Thus, after a short stay at the hospital, the plaintiff was discharged and told to make an appointment with a primary care doctor.

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As a general matter, Georgia medical malpractice lawsuits must be filed within two years from the date the claim arises. In most cases, a patient will be aware of a doctor’s negligence in the immediate aftermath of a surgery or procedure. In this situation, the claim is said to arise on the day the surgery or procedure is performed.

In other situations, however, a plaintiff may not realize that they have been a victim of medical malpractice until a later date. This may be because they did not suffer any symptoms until months or years later or because after the error, they were treated by the same physician and did not discover the error until they received a second opinion. In some rare cases, the treating physician actively covers up their alleged negligence through fraud. In each of these cases, the statute of limitations can be extended.

A recent case decided by the Court of Appeals of Georgia illustrates how a plaintiff’s late-filed claim against a dentist was excused based on the dentist’s fraud in covering up his own potential negligence.

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In many Georgia medical malpractice cases, the testimony of at least one expert witness is required to establish certain elements of the claim. Thus, the selection and presentation of expert witness testimony is crucial. In order to be admissible, an expert’s opinion must be reliable. In Georgia, this means that the expert’s testimony “is the product of reliable principles and methods” and that the expert “applied the methods reliably to the facts” of the case.

A recent Georgia medical malpractice case illustrates the consequences of presenting an expert witness whose testimony is not admitted by the trial judge.

The Facts of the Case

The plaintiff was a mother who gave birth to a son who began to have seizures shortly after he was born. Subsequent testing revealed that the infant suffered from ischemic brain injury. The plaintiff filed a medical malpractice lawsuit against the defendants, who provided the plaintiff with medical care during labor.

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Earlier this month, an appellate court issued a written opinion in a Georgia pharmacy error case, affirming the dismissal of a plaintiff’s medical malpractice claim due to insufficient evidence that the pharmacy violated a professional duty of care. The court based its decision on the distinction between affirmative evidence that would have shown that the pharmacist did not offer counseling to the plaintiff’s wife versus a total lack of evidence on the issue. Finding a lack of evidence was insufficient to establish a medical malpractice claim, the court dismissed the plaintiff’s claim.

The Facts of the Case

The plaintiff was prescribed medication by his physician, and the prescription was called in to the defendant pharmacy. The plaintiff’s wife went to pick up the prescription, and she was given a single bag with two bottles inside. Unbeknownst to her at the time, neither bottle bore her husband’s name, and both contained unprescribed medication.

The plaintiff took the medication later that day, again without noticing that they were the wrong prescriptions. Later that evening, the plaintiff’s wife found the plaintiff passed out on the floor of their home. It was later discovered that the medication he previously took was given to his wife in error.

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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.

In 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.

In 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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