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Posts Tagged ‘medical malpractice’

Some Potential Certainty in an Outcome in an Uncertain Medical Malpractice World

Posted on: July 12th, 2019

By: Shaun Daugherty

Medical malpractice claims can be dangerous in front of a jury and some recent Georgia verdicts are proof of that.  In Georgia, as many other states, medical doctors typically have consent clauses in their professional liability policies that require their consent before any payment may be offered by the insurance company.  In part, this is because any payment by the insurance company on behalf of the provider to settle a malpractice claim is reportable to the National Practitioner’s Databank(“NPDB”) and, for physicians, the Georgia Composite Medical Board (“the Board”).  The Board has the power over the providers’ licenses and a report could start an investigation that could lead to sanctions against the providers’ license, up to and including revocation, and the sanctions are public record.

Because of the uncertainty in the medical malpractice trials, may times the parties seek some parameters in the form of high/low agreements where the plaintiff is guaranteed some minimal amount even if the jury returns a verdict in favor of the provider, but caps the top dollar payout even if the jury awards more.  However, the consent clause in the providers’ insurance contracts usually require that this agreement also be consented to because the payment of the “low,” even in light of a defense verdict, would require a reporting to the Board, but not the NPDB.  Georgia HB 128 changes this state reporting requirement now that it has been signed into law.

The NPDB does not require reporting of the payment of a “low” in light of a defense verdict in a medical malpractice trial and HB 128 seems to mirror the intent of the federal reporting requirements.  Now, if a physician receives a defense verdict at trial, any payment of a “low” is no longer reportable to the Board by the insurance carrier and, thus, no potential investigation or sanctions.  This removal of the reporting requirement may result in incentivizing physicians to consent to these types of agreements in the future to allow for more certainty on the potential outcomes of the cases, regardless of what a jury may do.

If you have questions or would like more information, please contact Shaun Daugherty at [email protected].

What’s the Cause of Joan Rivers’ Death?

Posted on: September 24th, 2014

By: Taryn M. Kadar

Many have heard of the unfortunate and the unexpected death of Joan Rivers while having a planned throat surgery. Along with grieving their loved ones, it would not be unusual in such situations for a family to seek counsel to analyze whether to bring a medical malpractice suit. Other celebrity estates have brought successful medical malpractice claims such as Michael Jackson. In such situations, some of the  key questions that would need to be answered are as follows.  First, did Rivers give the doctors consent to perform, if necessary, a biopsy during a planned endoscopy? In New York, the law provides that “before obtaining a patient’s consent to an operation or invasive diagnostic procedure or the use of medication, a doctor has the duty to provide certain information concerning what the doctor proposes to do, the alternatives to that operation, procedure or medication and the reasonably foreseeable risks of such operation, procedure or medication.” N.Y. Pattern Jury Instr.–Civil 2:150A.

A second question would be whether the doctors failed to exercise reasonable care during the procedure? This question is harder to answer, and in most cases ultimately ends up in a battle of experts. Each side hires their own experts to testify that the doctors did or did not exercise reasonable care based on the circumstances. The experts should consider questions such as whether the surgery should have been performed in a clinic or hospital, whether the proper anesthetic was used, and whether the clinic and its doctors properly responded to signs of medical distress.

As with all potential medical malpractice cases, there are many questions and factors that first need to be considered before bringing a lawsuit. Indeed, the Rivers’ situation, while high  profile is simply a common example of many cases involving the death of a patient where a family might explore  a medical malpractice case. The reality in today’s litigious world is that any unexpected medical outcome may lead to heightened scrutiny and a legal challenge even if the doctors made no error. Medical professionals should heed the warning to make sure all consent and risk protocols are followed, proper response plans are in place, and that all rules and procedures meet the minimum requirements set forth by the law.

Caps on Medical Malpractice Awards- How Much is Too much?

Posted on: August 5th, 2014

By: Taryn M. Kadar

Monetary caps on medical malpractice awards are commonplace in many states throughout the country. In today’s highly litigious environment, these monetary caps help limit the exposure a doctor or hospital may have in a medical malpractice suit. While some states such as Florida and Georgia have declared non-economic caps on damages to be unconstitutional, states such as California are currently considering whether to raise the cap on medical malpractice awards from $250,000 to $1.1 million. This significant raise ensures that both patient advocates and health care professionals will have a hand in the debate.

Patient advocates argue that raising the cap will help deter medical negligence. While opponents believe that a higher cap will raise healthcare costs and limit patient access to care. Further, doctors in California would need to spend more on medical malpractice insurance which may also hinder patient care.

How would this significant raise in the monetary cap amount impact the medical community in California? It is up to California residents to decide, as the issue has been approved for the ballot in November 2014. However, the debate is an important one, as other states may follow suit and consider raising its medical malpractice award caps.

Cumulative Does Not Always Mean Harmless

Posted on: May 8th, 2013

By: Scott Rees

In Thomas v. The Emory Clinic, Inc. (March 26, 2013), the Georgia Court of Appeals addressed the issue of a trial court improperly allowing hearsay evidence during a trial when that improper evidence is cumulative of other evidence in the case. Typically, allowing inappropriate, but cumulative, evidence is not harmful in terms of a jury verdict, and therefore does not require reversal. However, in this medical malpractice case, the court thoroughly analyzed this issue and determined the trial court committed reversible error in allowing hearsay evidence to be heard by the jury, despite that evidence being cumulative of other evidence. The court determined that because the hearsay evidence went to the core issue of the case (whether the neurosurgeon committed malpractice by leaving too much cotton fiber in the patient’s brain) it was reversible error to allow it, even though it was cumulative of other evidence in the case. Because the plaintiff needed to only prove her case by a preponderance of the evidence, the court reasoned, allowing the improper evidence to bolster the proper evidence could easily tip the scales in the defendant’s favor.

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.