Articles Posted in Medical malpractice

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.

In a recent opinion, the Court of Appeals of Georgia addressed the state’s fraud exception for tolling the statute of limitations in medical malpractice cases. Evidently, a woman appealed a trial court’s granting of summary judgment in favor of a hospital. The woman appealed on the basis that the statute of limitations should not bar her claim because the hospital engaged in fraud.

According to the court’s opinion, the woman’s husband was experiencing abdominal pain and was transported to a hospital. During his stay, a doctor ordered a CT scan, and he underwent several other tests and examinations. The hospital did not administer the CT scan until four days after the initial physician’s order. The CT scan revealed that the man was suffering from a colon perforation, and he required two surgeries. During the last operation, physicians discovered that his condition was terminal, and he passed away several hours later.

The man’s wife filed a lawsuit about four years later against the hospital, alleging that the hospital was negligent in caring for and treating her husband. The hospital moved to dismiss the case based on the state’s statute of limitations. Georgia law requires that medical malpractice claims must be filed within two years after the date of the incident giving rise to the action occurs. In most cases arising from negligent treatment or misdiagnosis, the statute of limitations begins running at the time of the misdiagnosis or negligent treatment.

Medical providers and hospitals can be held accountable for medical malpractice if the negligent or criminal conduct of their employees results in harm to a patient. In a recently issued decision, the Georgia Court of Appeals explained the requirements for a plaintiff to collect damages for a medical malpractice claim arising from the improper conduct of a hospital employee.

The defendant hospital was sued after one of their employees faced criminal charges for falsifying medical test results and concealing the actual results of the plaintiff’s tests. The plaintiffs underwent mammogram testing at a hospital operated by the defendant, and the technician who was responsible for transmitting the test results to a radiologist for interpretation instead forged results, making it appear as if everything was normal without a radiologist reviewing the test.

The plaintiffs sued the defendant in state court, alleging that the hospital was vicariously liable for any damages caused by the employee’s conduct. The complaint claimed that the actual test results may have shown abnormalities, and that the employee’s misconduct resulted in misdiagnosis, as well as the burden of undergoing a second mammogram. The trial court allowed the plaintiff’s case to proceed toward a trial, and the defendant appealed.

In a recent case, a state appellate court reversed a Georgia trial court’s ruling and found that a plaintiff did not need to present an expert affidavit in her lawsuit against a health clinic. According to the opinion, the plaintiff filed a personal injury lawsuit against a health clinic after she sustained injuries because of a botched blood draw. The woman alleged that the blood draw was performed negligently and without her permission. The clinic filed a motion to dismiss the lawsuit, claiming that the plaintiff needed to file an expert affidavit. In response, the plaintiff argued that the blood draw was non-consensual. However, the trial court granted the clinic’s motion to dismiss, and the plaintiff appealed.

The appellate court reviewed Georgia Code § 9-11-9.1, which addresses the requirement of affidavits in professional malpractice lawsuits. Generally, when a plaintiff files a lawsuit against a Georgia health-care facility based on vicariously liability and professional malpractice, they must submit an expert affidavit. Expert affidavits are used to determine whether a defendant has complied with the professional standard of care required of them. Generally, a plaintiff must establish that the medical professional owed them a duty, the defendant breached a generally accepted professional standard of care, that this breach caused the plaintiff harm, and that the plaintiff suffered a compensable injury.

Typically, to establish the standard of care, the plaintiff must present an affidavit from a qualified expert and this affidavit must be filed with the lawsuit. This expert must be able to testify to their qualifications and be able to establish at least one negligent act or omission by the defendant. However, this is not applicable when professional skills or judgment are not involved. The court found that a technician does not fall into any of the enumerated categories in the statute, and thus, an expert affidavit was not necessary.

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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