Negligence

April 24, 2016

Georgia Court of Appeals Rules in Forged Mammogram Case

by Christopher Simon

Although medical mistakes resulting from faulty equipment or inadvertent human errors are not particularly uncommon, many do not expect intentional malfeasance on the part of medical professionals. However, even if a situation is not anticipated, it certainly does not mean it’s impossible. Indeed, in a recent decision, Jefferson v. Houston Hosps., Inc., the Georgia Court of Appeals addressed an interesting situation regarding the liability of a medical facility for its employee’s willful forgery of patients’ mammography results.

Jefferson concerned the forgery of three patients’ mammography results at a medical facility in Houston County, Georgia. All three patients received mammograms at the facility in 2009, and all three mammograms were performed by the same mammography technologist. Although the technologist was supposed to transfer mammography images to a radiologist for interpretation, the technologist testified that she used passwords she learned through her training duties to enter the system and forge mammogram results. The technologist admitted that she understood this conduct to be beyond the scope of her duties, and she ultimately pled guilty to criminal charges associated with this conduct. After the fraud was discovered, the medical facility issued a press release stating that an employee had processed a number of mammogram results without procuring a reading from a radiologist and instructed patients to receive new mammograms. All three plaintiffs returned for new mammograms, all of which were found to be normal. The plaintiffs then brought suit against the various defendants, asserting claims for, inter alia, fraud, intentional infliction of emotional distress, breach of contract, negligence, negligence per se, and conversion. The hospital ultimately moved for summary judgment, which the trial court granted, finding that: (1) the technologist did not act within the scope of her duties, as is necessary for the hospital to be vicariously liable for the technologist’s conduct; (2) the plaintiffs failed to adduce sufficient evidence to support a finding of intentional infliction of emotional distress; and (3) none of the plaintiffs suffered actual damages as a result of the technologist’s conduct. Following the trial court’s grant of summary judgment, all the plaintiffs appealed.

April 18, 2016

Georgia Court of Appeals Discusses Ante Litem Notice Compliance in Recent Ruling

by Christopher Simon

Lawsuits against the government, either state or federal, often come with a variety of specialized procedural hurdles. In Georgia, among these particular requirements that catch hapless litigants by surprise are the many special notice requirements that preclude a litigant from bringing suit against a state entity unless he or she gives proper notice of the suit. For instance, in a recent decision, Estate of Leonard, the Georgia Court of Appeals affirmed a trial court ruling holding that one unfortunate plaintiff was barred from bringing a tort suit against a county government for failing to adhere to the notice requirements under O.C.G.A. § 36-11-1.

Leonard arose from a collision on January 30, 2012. The plaintiff, an 82-year-old man, was riding on a bus owned by Whitfield County, Georgia. The plaintiff, who was sitting in a wheelchair that was secured by straps specifically designed to hold wheelchair-bound passengers, alleged that when the driver of the bus made a high speed turn, it caused the straps to detach, which, in turn, caused his wheelchair to tip over. As a result of the fall, the plaintiff sustained two broken legs that required surgery. Thereafter, the plaintiff was confined to a managed care facility. The plaintiff’s attorney sent notice to the County Attorney for Whitfield County and then filed suit on January 21, 2014. The county answered the complaint, asserting, inter alia, a defense that the plaintiff did not comply with the ante litem notice requirements provided under O.C.G.A. § 36-11-1. Following discovery, the county moved for summary judgment. The trial court denied this motion for summary judgment, finding that issues of fact precluded a finding that notice had not been accomplished. Following the denial of the motion for summary judgment, counsel for the plaintiff served a copy of the complaint on several of the county commissioners. Nevertheless, the county filed a second motion for summary judgment and included an affidavit from the county attorney stating that at all times material to this action, he had not been authorized by the county commissioners to accept notice of suit on behalf of the county. The trial court granted the motion for summary judgment, and the current appeal followed. During the course of the litigation, the plaintiff died, and the executor of his estate was substituted as the plaintiff.

March 19, 2016

Georgia Court of Appeals Tackles Hospice Care Negligence Suit

by Christopher Simon

As strides in medical treatments and technologies continue to be made, the life expectancy of Americans continues to rise. However, notwithstanding the benefits associated with increased life expectancy, many of those of advanced age will need living assistance of some variety at some point, including hospice care in the later stages of life. Unfortunately, allegations associated with the mistreatment of this vulnerable population are not uncommon, and courts in our state often find themselves tasked with the unenviable job of addressing liability for injuries to our elderly population. Indeed, in a recent decision, Carter v. VistaCARE, LLC, the Court of Appeals addressed a pair of trial court orders dismissing claims of fraud, negligence, and battery against a local hospice care provider.

This litigation was initially brought by a resident of the hospice facility operated by the defendant in this case. During the course of litigation, the plaintiff died, and her estate was substituted as plaintiff in the action. Following the substitution of litigating party, the estate voluntarily dismissed the action. About six months later, the estate filed a new complaint asserting claims for fraud, negligence, and battery. In relevant part, the new complaint alleged that the decedent’s primary care physician had ordered that she be given home health care services but that the defendant took it upon itself to place the decedent in hospice care, even though the decedent did not qualify for such services. The estate claimed that the provision of hospice services, including the administration of morphine, caused damage to the decedent’s health and ultimately resulted in her hospitalization. The defendant moved to dismiss, which the trial court granted with respect to the claims of battery and negligence claims but denied with respect to the fraud claim. The defendant later moved for summary judgment on the remaining fraud claim, and in a subsequent order the trial court granted the motion for summary judgment on that claim. Following dismissal of the fraud claim, the estate brought the instant appeal, arguing that the trial court erred in dismissing the claims.
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March 13, 2016

Georgia Court of Appeals Rules that One May Assume Risk of Falling at Medical Facility

by Christopher Simon

Assumption of risk is among the most commonly invoked defenses in negligence cases. Given that the defense has existed as long as the common law and is so frequently raised by defendants in negligence cases, courts have been forced to address the contours of the defense’s applicability for hundreds of years. In a recent decision, Watson v. Reg’l First Care, Inc., the Georgia Court of Appeals added another chapter to its assumption of risk jurisprudence by addressing whether a patient assumed the risk of injury when he chose to sit on an examination table at a local medical clinic.

The plaintiff in Watson was a patient at the defendant medical clinic, where he was receiving treatment for bronchitis. Following a visit to the clinic on April 16, the plaintiff had a coughing episode that caused him to black out and hit his head on a nightstand in his home. On May 2, the plaintiff returned to the medical clinic for further bronchitis treatment. Following his arrival at the clinic, the plaintiff was taken to an examination room by a medical assistant. The medical assistant instructed the plaintiff to sit on an examination table, measured his blood pressure, and left to find a physician. While he was having his blood pressure measured, the plaintiff told the medical assistant that he had fainted as a result of coughing spells on two prior occasions. While waiting for the doctor to arrive, the plaintiff had another coughing fit that caused him to black out and fall to the floor.

March 11, 2016

Georgia Court of Appeals Examines Where Venue is Proper in a Medical Negligence Case

by Christopher Simon

Although we consider gamesmanship in the selection of where a case should be filed to be a more prevalent issue in the federal court system, arguments regarding the venue of cases are not uncommon in Georgia courts. Plaintiffs may often find a material advantage to having a case heard in a particular setting and attempt to defend their choice of venue against challenges from defendants who, for obvious reasons, find the choice detrimental to their interests. Indeed, the propriety of a venue choice was at the heart of a recent case before the Georgia Court of Appeals, Bd. of Regents v. Jordan, in which the court examined whether venue of a medical negligence case was proper in DeKalb County.

Jordan arose from an alleged incident of medical negligence related to the care and treatment of two minors at Children’s Hospital of Georgia, which is located in Richmond County and is part of the state’s university health system. After undergoing surgical procedures at Children’s Hospital, both minors were subsequently transferred to Children’s Healthcare of Atlanta, located in DeKalb County, where they underwent several corrective surgeries requiring prolonged hospitalization. Their parents filed individual medical negligence lawsuits in DeKalb County. The defendants in these suits moved to have the cases transferred to Richmond County, but the motions were denied in each case because the trial court found that venue was proper in DeKalb County. The defendants filed interlocutory appeals of these denials, and the Court of Appeals consolidated the cases for the purposes of appeal.

February 15, 2016

Georgia Federal Judge Denies New Trial in Tractor Trailer Accident Case

by Christopher Simon

Although we generally associate the challenging of a judge’s ruling with part of the appeals process, there are many instances when a litigant may request a judge to reconsider his or her own decision. As one can expect, asking a judge to reverse himself can be a tricky proposition. Indeed, as two unfortunate defendants before a federal judge who sits on the Middle District of Georgia recently saw, contempt can befall those who carelessly ask for reconsideration.

The case, Wallace v. Wiley Sanders Truck Lines, Inc., started with a motor vehicle accident on U.S. Highway 82 East in Cuthbert, Georgia. An employee of one of the defendants in this action was operating a tractor trailer owned by the defendant. The plaintiff was operating a tractor trailer that was directly in front of the defendant’s tractor trailer. The plaintiff stopped his vehicle and turned on his indicator, signaling that he intended to make a right turn onto a private driveway off the highway. As the plaintiff was making his turn, however, the defendant’s tractor trailer collided with the plaintiff’s vehicle. The plaintiff suffered injuries as a consequence of the collision, and he brought suit against the defendant and its insurance company for injuries and pain and suffering. Following trial, the jury found that the defendant’s employee had been negligent and awarded $650,000 in compensatory damages. The defendants moved for the district court to order a new trial, arguing that the court had made evidentiary and jury instruction errors that necessitated the new trial. Unsurprisingly, the judge disagreed.

January 29, 2016

Georgia Court of Appeals Reverses in Auto Accident Decision

by Christopher Simon

Obtaining recovery for physical injuries or property damage resulting from a car accident is often not a straightforward endeavor. Indeed, many drivers involved in car accidents expect to deal with some amount of insurance wrangling or, in more complex situations, litigation. However, as the plaintiff in a recent case before the Georgia Court of Appeals, Guice v. Brown, now realizes, the task can be even more complicated, simply depending on the identity of the other driver.

Guice started with a motor vehicle accident that occurred in Rockmart, Georgia. The plaintiff was driving westbound along Georgia 278 West. At that time, the driver of the other vehicle, a truck owned by the city of Rockmart, was leaving a shopping plaza located near where the driver of that vehicle had been installing stop signs. The driver of the truck had decided to go through the parking lot of the shopping plaza rather than navigating the roads around it. While leaving the plaza, the driver attempted to cut across several lanes of traffic in order to get into the left lane of Georgia 278 West. While attempting to do so, however, the truck driver collided with the plaintiff’s vehicle. The truck driver stated that he did not see the plaintiff’s vehicle prior to the impact and did not know which lane the plaintiff had been using.

January 22, 2016

Divided Georgia Court of Appeals Affirms in Negligence Suit Involving Woman Assaulted While Under Anesthesia

by Christopher Simon

There are many fears one may have when faced with the prospect of going under anesthesia for a medical procedure. Not likely among the many thoughts you may have, however, is that a medical professional would take advantage of you while in this vulnerable state. Even though this risk may not spring to mind, it certainly is not impossible. Indeed, in a recent decision, Goldstein, Garber & Salama, LLC v. JB, the Georgia Court of Appeals addressed what liability may exist for a dental practice following the sexual assault of a patient by one of the company’s employees.

The sexual assault at issue in this case occurred on September 16, 2009. On that day, the plaintiff, a patient at an Atlanta dental practice facility, was set to undergo a three-part dental procedure. During phase one, a post for a tooth implant was installed, which required that the plaintiff be administered anesthesia. Following the completion of this phase, the plaintiff was still in a heavily sedated state, which lasted for approximately the next two hours. During these two hours, prior to the beginning of the second stage, the plaintiff was left alone with one of the dental practice’s Certified Registered Nurse Anesthetists. The nurse, a male, made three lewd videos with the plaintiff. These recordings were discovered afterward when the nurse’s phone was discovered secretly recording employees in the office’s restroom. An examination of the phone revealed that the nurse had made a number of other videos with anesthetized patients. In a subsequent criminal prosecution, the nurse pled guilty to a number of charges related to these activities and was sentenced to life in prison.

January 15, 2016

Georgia Court of Appeals Reverses in Elevator Injury Case

by Christopher Simon

Elevators are among the tremendously useful inventions of the modern era. Indeed, buildings would have never reached even half of the astronomical heights they have attained in the elevator’s absence. Along with being a modern necessity, however, elevators can be incredibly dangerous when not properly maintained. Although a shoddy cable breaking is the most worrisome concern, even more minor failures in elevator upkeep can lead to injury. Indeed, the smaller risks posed by poor elevator maintenance were at the center of a recent decision from the Georgia Court of Appeals, Hill v. Cole CC Kennesaw GA, LLC.

Hill arose from a trip and fall accident at a building where the plaintiff was employed. On the day of the accident, an elevator repair technician employed by Kone, Inc. performed preventative maintenance work on the elevator at issue as well as three others located in the building. At around 5 p.m., after purportedly completing this maintenance work, the technician left. However, about five hours later, the employee entered the elevator with a coworker. The trip was uneventful except that when the elevator reached the desired floor, the base of the elevator did not line up with the edge of the floor. Unaware of the mis-leveling issue, the plaintiff tripped while exiting and hit her head against a metal pole located inside the elevator. The plaintiff’s coworker pressed another button and was returned to the lobby, where she sought assistance for the plaintiff. After this string of events, which included the plaintiff’s journey to the emergency room, a different building occupant noticed the leveling problem and reported the issue to management.

January 5, 2016

Georgia Court of Appeal Reverses in MARTA Negligence Case

by Christopher Simon

Under Georgia law, a defendant’s admission of liability may be presented as evidence in a negligence case. Admissions of liability can have considerable influence on juries, so determinations regarding which evidence may properly be considered an admission are often hotly contested. Although trial courts have considerable discretion in making such evidentiary determinations, their rulings, given the potential impact, are not immune from appellate review. Indeed, in a recent decision, Agic v. Metro. Atlanta Rapid Transit Auth., the Georgia Court of Appeals recently reversed a trial court for improperly excluding evidence of a MARTA bus driver’s admission of liability for an auto accident.

As noted above, Agic arose from a motor vehicle accident involving a MARTA bus and two other vehicles. The plaintiff in this case was a passenger in an SUV being operated by another person. The driver of the bus hit a different vehicle while attempting to change lanes on North Druid Hills Road. The collision caused the other vehicle to travel into incoming traffic, where it was struck by the SUV in which the plaintiff was traveling. After the collisions, the police told the bus driver he was free to go but then later requested that he return to the scene of the accident, where the bus driver was issued a traffic citation for improperly changing lanes. The bus driver paid the citation without appearing in traffic court, resulting in forfeiture of bond. In addition, MARTA conducted its own investigation of the crash, and the driver signed a report that acknowledged that the accident was “preventable.” The plaintiff sustained injuries as a result of the crash and brought suit against MARTA and the bus driver. Prior to trial, the defendants made a motion in limine, which sought to exclude any reference to the citation during trial. The trial court granted the motion. After the trial, the jury returned a verdict favorable to MARTA, and the plaintiff appealed the verdict.