Articles Posted in Medical malpractice

Earlier this year, a state appellate court issued a written opinion in a Georgia medical malpractice case discussing the state’s statute of repose. Ultimately, the court concluded that the plaintiff’s claim against the physician was filed after the five-year statute of repose, and thus, was untimely.

What Is a Statute of Repose?

A statute of repose is similar to a statute of limitations in that it provides a timeframe in which a case must be brought. However, unlike a statute of limitations, a statute of repose cannot be tolled and is absolute. While a state of limitations focuses on the timeliness of the plaintiff’s complaint, a statute of repose is concerned with providing defendants immunity from long-term liability. Thus, under OCGA § 9-3-71, notwithstanding the two-year statute of limitations, “in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.”

The Facts of the Case

According to the court’s opinion, the plaintiff’s wife was seen by several doctors at the defendant medical practice while she was pregnant. During a routine prenatal sonogram in April 2012, doctors discovered a mass on the plaintiff’s wife’s right adnexa. However, neither the patient nor his wife was informed of the mass, and the mass was not documented among the issues that needed to be addressed.

Continue reading ›

Last month the Supreme Court of Georgia issued an opinion addressing the standard of review that courts should use when hearing appeals regarding special and general damages. This Georgia medical malpractice lawsuit arose after a woman claimed she became permanently and totally disabled following the care she received at an emergency room. The woman’s husband took her to the hospital, where she complained of pain associated with a severe headache, dehydration, diarrhea, and nausea. The triage nurse did not note the woman’s initial headache symptoms, but instead chose a charting template for digestive illnesses. The woman was diagnosed with high blood pressure and was told to visit her primary care doctor that week for follow-up. Later that week, the woman suffered an insurgency in her symptoms, and a CT scan showed that she had a blood clot and had suffered several strokes. Despite several surgeries, the woman entered a vegetative state.

The woman’s husband filed a medical malpractice lawsuit against the hospital, alleging that they negligently failed to diagnose her with a ruptured aneurysm. The husband argued that the woman would have had a more promising outcome if they had adequately diagnosed and treated her for her blood clot. The jury apportioned fault amongst the parties and awarded the plaintiffs with their requested damages for past medical expenses but awarded zero damages for pain and suffering, lost wages, and future expenses. The plaintiffs filed a motion for a new trial arguing that the zero-sum award was inadequate and against the preponderance of the evidence. The defendants countered that the award should not face modification, and it was inappropriate to limit a new trial to only the issue of damages. The appeals court reversed the court’s denial of the motion and ordered a retrial, finding that the jury’s award was inadequate under the preponderance of the evidence. The defendants appealed, arguing that the preponderance of evidence standard was erroneous.

Under Georgia law, damages are divided into three distinct categories, special, general, and punitive damages. Special damages are losses that are easily quantifiable and flow from the tortious act. Special damages include things such as hospital bills, property damage, and lost wages. General damages are more difficult to quantify and cover losses related to permanent changes and human suffering. These include damages related to mental anguish, disfigurement, and loss of companionship. Unlike special and general damages, punitive damages are designed solely to punish the defendant and deter them from engaging in similar conduct in the future.

Recently a state appellate court issued an opinion in a case in which a woman appealed a directed verdict in favor of a defendant in a Georgia medical malpractice lawsuit involving the alleged negligence of an oral surgeon. The woman alleged that she suffered serious facial burns while undergoing oral surgery. The record indicates that the defendant provided the woman with treatment for severe jaw pain. After conservative treatment methods failed, the defendant performed intraoral surgery to address the issues causing her pain. Right after surgery, the defendant noticed that the woman’s face was swelling, but attributed it to normal swelling following this type of surgery. When the swelling and pain did not resolve, the surgeon referred her to a plastic surgeon, and she was subsequently diagnosed with second and third-degree burns. The woman filed a lawsuit against the oral surgeon seeking damages for her injuries under Georgia medical malpractice laws.

During the trial, the defendant testified that he was aware that a piece of the saw could overheat and potentially burn the patient, but that during the plaintiff’s surgery, he never felt the tool heat up. During testimony, he claimed that he did not know how the burns happened, but the only logical conclusion is that the handpiece malfunctioned and transmitted heat to the part that was lying on her face. He said he understood that these tools could overheat, and he took the necessary steps to prevent overheating and injury to the patient.

The plaintiff presented an expert who opined that the woman suffered burns because the handpiece overheated. The expert explained that because the tools are known to overheat, the applicable standard of care requires surgeons to take steps to prevent the tool from burning the patient. The expert concluded that the surgeon breached his standard duty of care because there are ways to take measures to prevent the tool from contacting the skin. However, he conceded that his opinion was based on the fact that the plaintiff suffered a burn during surgery. The defendant moved for a directed verdict, claiming that the plaintiff was basing her case on a res ipsa loquitor theory, which is not applicable in Georgia medical malpractice cases.

The Supreme Court of Georgia recently issued an opinion discussing whether an assumption-of-the-risk jury instruction was appropriate in a medical malpractice lawsuit. According to the court’s opinion, the plaintiff visited a care clinic after experiencing chest pain. The clinic’s doctor prescribed the man a blood pressure medication and referred him to a heart surgeon. The heart surgeon’s test revealed that a portion of the plaintiff’s heart was experiencing diminished blood flow. The surgeon advised the plaintiff to continue using the blood pressure medication, an additional blood pressure medication, and a blood clotting medication. He did not warn the plaintiff of the medications’ side effects of dizziness or losing consciousness. The surgeon also performed a procedure, during which he discovered a 99% blocked artery.

Following the procedures, the surgeon provided the plaintiff with post-surgical instructions, stating that he was not to engage in risky activities, including lifting more than ten pounds, bending, or stooping for one week. A discharge nurse also discussed these limitations, and the plaintiff acknowledged his understanding. However, there were conflicts of what precisely the discharge recommendations stated.

About five days after the procedure, the plaintiff was hunting in rough terrain and fainted while he was on an 18-foot deer stand. He sustained serious injuries from the fall, including fractured vertebrae. The plaintiff sued the cardiology office and his surgeon, alleging that he suffered injuries because the surgeon prescribed too much blood pressure medication.

Following a Georgia medical malpractice or personal injury-related incident, an injury victim may have grounds to file a lawsuit. However, there may be additional requirements associated with filing a claim that can be complicated and challenging without the proper guidance of an experienced attorney. Regardless, those who cause such injuries should be held accountable for their actions, and victims should take care not to jeopardize their right to compensation by failing to comply with the strict requirements of these cases.

In a recent Georgia Court of Appeals case, a plaintiff filed an ante litem notice of claim in 2017 in which he alleged that physicians failed to timely diagnose his lung cancer. In May 2018, the plaintiff filed a second ante litem notice setting forth the same facts to correct some typographical errors in the original claim notice. In October 2018, the plaintiff filed a medical malpractice action against the defendant, which the trial court dismissed because the plaintiff failed to follow the procedural requirements of the Georgia Tort Claims Act (GTCA). The trial court held that the ante litem notices submitted failed to state the location of the transaction and occurrence as required by the GTCA and granted the defendant’s motion to dismiss the claims. The plaintiff appealed.

On appeal, the plaintiff argued that the trial court incorrectly dismissed his claims because he had followed the procedural requirements of the GTCA. In Georgia, courts have previously held that when there is a complete omission of one of the six categories of information required by the ante litem notice statute, such an omission can render the notice insufficient. Because the plaintiff failed to indicate where the transaction occurred and the frequency in which it occurred, and these factors were considered an entire category in ante litem notice procedures, the appellate court sided with the defendant and affirmed the trial court’s decision to dismiss the plaintiff’s claims.

When medical malpractice occurs, it is often at the hands of a physician or medical professional employed by a larger hospital or practice. Following an incident of medical malpractice, many potential plaintiffs in Georgia are interested in bringing legal action. One of the options available is to directly bring a claim against the physician who caused the accident and also sue the physician’s employer for allowing the malpractice to occur in the first place. When a plaintiff brings an action against someone’s employer in addition to the employee themselves, this claim is known as vicarious liability.

In a recent Georgia court decision, a plaintiff sued a defendant hospital for vicarious liability following a medical accident involving his wife. After giving birth, the plaintiff’s wife was treated by the two physicians who were the defendant’s employees. As a result of their actions, the woman suffered a catastrophic brain injury that led to her entering full cardiac arrest. Subsequently, the plaintiff filed a medical malpractice claim, arguing that the defendant was vicariously liable for the actions of the doctors who treated his wife.

However, when filing his claim, the plaintiff only listed the hospital and one of the doctors who treated his wife as defendants, while the complaint itself only contained allegations against another doctor’s conduct who was not named as a defendant. In addition, the plaintiff did not bring any independent allegations of negligence against the hospital, just vicarious liability claims. Following the trial, the lower court ruled in favor of the plaintiffs. The defendants appealed and argued that the plaintiffs failed to properly present a claim for vicarious liability.

When you decide to bring a medical malpractice lawsuit in Georgia, there are many steps in the process. To ensure that your claim is free of procedural errors, it is crucial that you understand what is required of you as the plaintiff when working with your lawyer to draft the first part of the lawsuit, otherwise known as the complaint. The complaint typically establishes what your claim is, and why you are entitled to relief in the courts. In some cases, however, you may not need to name each defendant specifically involved in the case to successfully bring a legal claim against them under Georgia’s procedural rules.

In a recent Supreme Court of Georgia opinion, the court considered a lower court’s opinion regarding whether a plaintiff sufficiently asserted his claim against the defendant. Following the plaintiff’s wife’s significant medical-malpractice related injuries after being treated by the defendants, the appellate and lower courts ruled in favor of the plaintiff and claimed that he had sufficiently asserted his claim of vicarious liability against the defendant even though he did not specifically name each doctor who treated his wife in his complaint. The state’s high court then considered whether the appellate court’s decision in siding with the plaintiff was correct.

Upon review, the court determined that the Court of Appeals did not err in its decision. The defendants again argued that the plaintiff did not sufficiently plead a vicarious liability claim because the plaintiff failed to specifically name the exact defendant physician in his complaint. The court disagreed, holding that because Georgia is a notice-pleading jurisdiction, the plaintiff successfully brought forward his claim for vicarious liability.

Affidavits are sworn statements in writing. Often, affidavits are used in lawsuits as an additional piece of evidence. In medical malpractice claims in Georgia, the court has certain threshold requirements of the defendant’s wrongdoing that must be established in the affidavit in order for it to be admissible. When used properly, an affidavit can provide valuable evidence in support of your Georgia medical malpractice claim and further your argument and credibility.

In a recent Court of Appeals of Georgia case, the court had to consider a medical malpractice matter involving an expert affidavit. The administrator of the deceased’s estate sued the defendant, a medical center, among other defendants, for professional negligence and simple negligence, and argued that the defendant was vicariously liable for the injuries the deceased suffered while he was a patient at a hospital within the medical center system.

With her complaint, the administrator submitted the affidavit of a registered nurse who claimed that the hospital staff was professionally negligent in providing or failing to provide care for the deceased. In response, the defendants argued that the administrator failed to meet the procedural pleading requirements necessary because the affidavit failed to specify a particular negligent act or employee of the defendant and moved to dismiss. The trial court sided with the defendant and granted the motion to dismiss.

Needing surgery can be a scary thing, and Georgia patients need to find doctors and surgeons that they trust to perform their procedures. Typically, operations in Georgia go well, and there are no issues or concerns. Occasionally, however, mistakes may be made, and accidents may occur, which can lead to significant injuries or even the death of the patient. When this does tragically happen, Georgia patients have the right to sue their negligent medical providers, to recover financially for the harm the medical provider’s mistake or carelessness caused.

The Court of Appeals of Georgia recently considered a medical malpractice case brought against the nurses at a hospital where the patient was treated. According to the court’s written opinion, the patient arrived for surgery on the morning of December 16, 2014. The patient was supposed to receive an antibiotic within one hour before the surgery began, and records show that she was given the antibiotic at 12:40 p.m. However, there is a significant dispute over whether the surgery started at 12:05 or 1:05 p.m., as there are medical records that have both times written on them.

What is clear, however, is that the patient, twenty days after the surgery, went back to the hospital complaining of drainage from the surgery wound. The problem continued to occur, even after a wound cleaning, and several days later, the patient suffered neurological deficits caused by an abscess, including right-sided paralysis. Over the next two years, the patient claims that she had to undergo multiple surgeries and therapies and suffered from permanent neurological injuries, all resulting from the initial brain infection. She sued the hospital and medical professionals who worked on her surgery, including the nurses, in December of 2016, alleging failure to properly administer the antibiotic within one hour before the surgery.