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Archive for January, 2013

Medical Malpractice Lawsuit Dismissed Because Expert Not Qualified

Posted on: January 31st, 2013

By: Scott Rees

In Whitley, the Court of Appeals ordered a medical malpractice lawsuit to be dismissed for failure to satisfy Georgia’s expert affidavit requirements.  O.C.G.A 9-11-9.1 requires that in any medical malpractice lawsuit, a plaintiff must file with the complaint an affidavit of an expert competent to testify as to the alleged medical negligence. O.C.G.A. 24-9-67.1, now 24-7-702, sets forth specific requirements an expert must satisfy in order to be qualified.

Generally, the statute requires experience and knowledge regarding the opinion to be given as a result of active practice or teaching, and the expert must be a member of the same profession (with an exception allowing physicians to testify against nurses and other professionals if certain criteria are met).

In Whitley, the court held that a chiropractor was not qualified to testify as to a physical therapist’s purported negligence, because the chiropractor was not a member of the same profession.  The trial court had ruled the chiropractor was a member of the same profession, because he had performed physical therapy treatment for years, had been trained as a physical therapist, and was a licensed physical therapist in other states (but was not actively practicing as a physical therapist in those states).

The Court of Appeals disagreed with the trial court, holding the chiropractor was not of the same profession, because the two professions were treated separately pursuant to state statutes and regulations.  As a result, the trial court was instructed to dismiss the complaint.  Accordingly, this is just one more example of how important it is to address whether the affiant is properly qualified.

Georgia Supreme Court to Weigh Expert Qualifications in Medical Malpractice Case

Posted on: January 18th, 2013

By: Michael Eshman

At issue in Hankla, et. al. v. Postel is the qualification of a medical doctor to testify as an expert regarding the standard of care owed by a nurse midwife.  Georgia statute sets forth certain requirements a medical expert must satisfy in order to testify as to the standard of care of the medical professional at issue.  To qualify, the expert must be a member of the same profession and either taught or actively practiced in the area of the alleged area of negligence for at least three of the last five years preceding the act or omission at issue. See O.C.G.A. § 24-7-702, formerly O.C.G.A. § 24-9-67.1.

However, the statute allows for an exception to the “same profession” requirement to allow physicians to testify as to the standard of care for nurses and other allied health professionals.  In order to do so, the physician must have supervised, taught, or instructed such professionals regarding the “circumstances at issue” for three of the last five years preceding the act or omission at issue.

In Postel, the plaintiff claimed that the nurse midwife breached the standard of care during delivery of a baby, resulting in permanent brachial plexus injury. The trial court allowed the defense to present the expert testimony of a medical doctor specializing in obstetrics and gynecology, but who did not supervise, teach or instruct nurse midwives for three of the five years immediately preceding the delivery.  The medical doctor testified that the nurse midwife did not breach the standard of care owed to the patient.  After a defense verdict, the court of appeals reversed the judgment, finding that the medical doctor was not qualified under the Georgia statute to testify as an expert regarding the actions of a nurse midwife, because she was not in the same profession as the nurse midwife nor had she supervised, taught, or instructed nurse midwives in three of the five years preceding the delivery.

The Georgia Supreme Court granted certiorari to address the question of whether a doctor actively engaged in the area of practice at issue, gynecology and obstetrics, may be qualified to testify regarding the conduct of a nurse midwife, even if the doctor has not supervised, taught, or instructed nurse midwives in three of the last five years immediately preceding the alleged act or omission.  While there is certainly overlap in the treatment an OB/GYN doctor and a nurse midwife are authorized to provide a patient, a plain reading of the statute suggests that the court of appeals will be affirmed, and a best practice in retaining experts is to make certain that they satisfy the explicit requirements of O.C.G.A. § 24-7-702, formerly O.C.G.A. § 24-9-67.1.  The Georgia Supreme Court will hear oral argument on this issue in April of this year, with a definitive decision expected later this year.

Employers Must Act Now on Healthcare Law

Posted on: January 16th, 2013

By David Cole

This is a critical time for employers to be aware of their obligations under the healthcare law and begin taking steps needed for compliance. As just a brief reminder, some of the law’s key provisions for employers are:

  • Mandatory reporting of health benefit information on employee W2s;
  • Notice of exchanges due to employees by March 1, 2013;
  • Automatic enrollment of employees in employer-sponsored health plans; and
  • Required health benefits to employees by January 1, 2014, for employers with 50 or more full-time and full-time equivalent employees.

Although some of these requirements do not go into effect until 2014, each employer’s coverage by the statute will be determined based on its number of employees during the 2013 calendar year. In addition, employers should not wait until the last minute to determine their coverage by the statute and what they need to do to comply. Employers face stiff penalties for non-compliance, and we expect the Obama administration and the IRS to enforce the law strictly as it goes into effect.

Please contact David Cole at 770.818.1287 or [email protected] if you have any questions about your organization and the healthcare law. You also can hear Mr. Cole discuss the healthcare law live on the show Prime Time Lawmakers at 7:00 p.m. tonight, January 16th, on Georgia Public Broadcasting.

Does the Fourth Amendment Allow a Forced Blood Draw After a DUI Arrest?

Posted on: January 14th, 2013

By: Sun Choy

The Supreme Court will answer this question in Missouri v. McNeely.  It is well established that the Fourth Amendment allows a warrantless search under exigent circumstances.  During the oral argument last week, the Court suggested that increased technology may diminish the need for warrantless searches.  With advancements in instant communications, a warrant may be a few text messages away.  Of course, this is an over simplification, but it raises some intriguing questions about the role of technology in law enforcement.  With existing technology, one can easily envision a procedure where an officer appears before a neutral magistrate via a smart phone video feed and an electronic warrant is issued via email.  Accordingly, technology may render warrantless searches less reasonable under the Fourth Amendment.  It will be interesting to see how the Court addresses this interplay between technology and the Fourth Amendment in Missouri v. McNeely.

Engagement Letters for Professional Services – A Valuable Tool That May Come with a Price

Posted on: January 11th, 2013

By: Seth Kirby

In 2009, the Georgia Court of Appeals confirmed with resounding clarity that all professional malpractice claims sounding in contract were governed by a four-year statute of limitations.  All was right with the world.  Professionals and their insurers could rest easy that their exposure to liability for professional negligence would cease four years after a transaction was completed, absent the existence of a continuing duty, given that the time period runs from the date of the alleged error.

The clarity regarding the applicable statute of limitations for professional malpractice claims was short lived, however, as the Georgia Supreme Court reversed the decision in 2010.  In Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., the Supreme Court held that the six-year statute of limitations governs professional malpractice claims based on the breach of a complete written contract for professional services.  The Supreme Court was less than clear on what would constitute a complete contract with regard to this statute of limitations analysis.

The dispute in Newell concerned an engineering firm’s allegedly defective design of an automobile shredding facility.  The engagement of the engineering firm was confirmed by a letter enclosing a nine-page draft scope of work that set forth the tasks to be accomplished by the firm in various phases and which proposed to bill the client on an hourly basis for completed tasks.  It set forth an estimated budget for the first three phases of the work, but did not itemize the exact hourly fee to be charged for the work performed.  On remand earlier this year, the Court of Appeals reviewed these facts and concluded that the documents evidencing this engagement was not a complete contract because it failed to set forth the essential element of consideration.  Since the engagement letter failed to set forth the hourly rate to be charged, it was partially oral, and the action was barred by the four-year statute of limitations.

Establishing an enforceable written contract is not always simple, but the establishment of a contract rarely turns on the basic element of consideration.  Consideration is nothing more than conferring a benefit upon another.  The agreement to pay money in exchange for services to be rendered constitutes consideration.  It could be argued that an amount of consideration is inadequate, or that the parties failed to mutually assent to the terms of agreement if the exact price is not known, but it would seem that an estimate of the costs to be charged for services to be rendered should be enough to show that consideration would flow between the parties and satisfy this basic element.  Nevertheless, the Court of Appeals relied upon the failure of the documents to state an exact hourly rate to conclude that they did not constitute a complete contract.

What then, can be learned from the Newell saga?  Attorneys and other professionals are frequently advised to memorialize the terms of their retentions through the use of an engagement letter.  An effective engagement letter sets forth the identity of client, discusses the scope and goals of the planned engagement, discloses how the professional will be compensated for their services, and may define when the representation will end.  The more detail that is included in such letters, the more they appear to constitute complete written contracts.  In Newell, the court may have stretched to find that the documents at issue did not constitute a contract.  Future cases may not enjoy the same result.

Effective engagement letters remain a valuable tool in protecting professionals against future claims of malpractice by defining the scope of services to be provided and by clearly explaining the fees to be charged for those services.  They avoid ambiguity between the parties and reduce the possibility that revisionist history will create previously undisclosed obligations, goals and expectations.  Given the analysis set forth in Newell, such letters may be used to extend the viability of professional negligence claims for an additional two years.  A professional’s use of engagement letters may now carry a price, but it is a price worth paying to ensure that the terms of their engagements are clearly understood from the outset — reducing risk on the front end, rather than waiting for the clock to run out on the back end.