Tort Reform and Other Recent Developments in Georgia Medical Malpractice Law Georgia Society of Healthcare Risk Management 2007 Winter Meeting Eagles Landing Country Club Stockbridge, Georgia Presented By: Susan J. Levy, Esq.

Motivation Behind Tort Reform The General Assembly finds that there presently exists a crisis affecting the provision and quality of there health presently care services exists in the state. a crisis Hospitals and other affecting health the provision and care providers in this state are having increasing quality of difficulty health in locating care liability services in the state. insurance and, when such hospitals and providers are difficulty able to locate in such locating insurance, liability the insurance is extremely costly. insurance The result of this crisis is the potential the for insurance a diminution is of extremely the availability of access to health care costly. services and a resulting adverse impact on the health and well-being of the citizens of this state.

Motivation Behind Tort Reform The General Assembly furthers finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health promote care services quality and the health resolution of heath care care liability services claims and and will the thereby assist in promoting the provision of health care liability resolution insurance of by heath insurance care providers. liability claims Section 1, Senate Bill 3 Became Law on February 16, 2005

Georgia s New Expert Witness Rule O.C.G.A. 24-9-67.1 (2006) In professional malpractice actions, the opinions of an expert, shall be admissible only if, at the time the act or omission is alleged to have occurred,, such expert: Is licensed in the state in which such expert was practicing; and In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given. As the result of having been regularly engaged in the active practice or teaching of such area of specialty profession for at least 3 of the last 5 years;

The second part of this analysis addresses appellants claim that the 2005 enactment of O.C.G.A. 24-9-67.1 requires that Longas be licensed at the time he executed the affidavit in 2003. Assuming arguendo that this new law was at applicable the time to Longas s the act affidavit or omission here, we hold is that with respect alleged to licensing, to have O.C.G.A. occurred, 24-9-67.1 such (c)(1) requires only that expert at the [w]as time the licensed act or omission by is an alleged to have occurred, appropriate such expert regulatory [w]as licensed agency by an appropriate to regulatory agency to practice his or her in the practice his or her profession. state in which such expert was practicing or teaching in the profession at such time. Here, Longas was undisputedly licensed to practice medicine in Tennessee (where he was actively engaged in the fifth year of his medical practice) at the time the alleged negligence occurred in 2001. Tenet Healthcare Corporation, et al. v. Gilbert et al., 277 Ga. App. 900 (2006)

The statute requires the trial judge to determine whether the expert has knowledge or experience in the area of practice or specialty by having been regularly engaged in the active practice of such area of specialty of his or her profession or the teaching of his or her profession. Had the legislature qualifications, intended rather to require than that plaintiff s the experts and defendant doctors doctor s share the specialty same specialty, or that language area would of practice, not be required. that The controls language contemplates whether that the trial expert court may very should well have a different allow area the of practice expert s than testimony. the defendant doctor. Under the statute, t t it is the expert s qualifications, rather than the defendant doctor s specialty or area of practice, that controls whether the trial court should allow the expert s testimony. Under the statute, t t it is the expert s Cotton, et al. v. Phillips, et al., 280 Ga. App. 285 (2006)

Although other states have required that expert witnesses and defendant doctors have the same specialty, the Georgia General Assembly considered and rejected just such a version of O.C.G.A. 24-9- 67.1 Abramson, et al. v. Williams, et al., 2006 Ga. App. LEXIS 1183 (2006)

New Expert Witness Statute A witness qualified as an expert, by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony rests esso on sufficient ce facts acso or data daa which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The expert witness has applied the principles p and methods reliably to the facts of the case. O.C.G.A. 26-6-67.1. 67.1.

24-9-67.1. (cont d) It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. In interpreting and applying this Code section, the Georgia Courts may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Daubert Court = gatekeeper In Daubert, the Supreme Court stated that the trial court is to act as a gatekeeper, whose responsibility it is to ensure that an expert s testimony is based on reliable foundation and relevant to the subject(s) at issue.

The Good Samaritan Law including any person licensed to practice medicine and surgery and including any person licensed to 51-1-29. Liability of persons rendering emergency care Any person, including any person licensed to practice medicine render and services surgery ancillary and including thereto, any person licensed to render services ancillary thereto, who in good faith renders who in good faith renders emergency emergency care at the scene of an accident or emergency to the victim or victims care thereof at the without scene making of an any accident charge or therefor shall not be liable for any emergency civil damages as a result of any act or omission by such person in rendering emergency care or without as a result making of any any act or charge failure to act to provide or arrange for further medical treatment or care for the injured person. shall not be liable for any civil damages

Willingham v. Hudson, 274 Ga. App. 200 (July 7, 2005) Physician called in to hospital to help tornado victims entitled to protection of Good Samaritan Law

2005 Amendment to the Good Samaritan Law emergency medical care 51-1-29.5. (c) In an action involving a health care liability claim in a arising hospital out emergency of the provision of emergency medical department or obstetrical care in a hospital emergency department or unit obstetrical or in a unit surgical or in a suite surgical suite immediately following the evaluation or immediately following the treatment evaluation of a patient or in a treatment hospital emergency of department, a no patient physician in or a hospital health care provider shall be held emergency liable unless department it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence. gross negligence

2005 Amendment to the Good Samaritan Law 51-1-29.5. (d) In an action involving i a health liability claim arising i out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters: (1) Whether the person providing care did or did not have the patient's medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications; (2) The presence or lack of a preexisting physician-patient patient relationship or health care provider-patient patient relationship; (3) The circumstances constituting the emergency; and (4) The circumstances surrounding the delivery of the emergency medical care.

O.C.G.A. 24-3-37.137.1 24-3-37.1. 37.1. Offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apologies by a health care provider or the provider's employee or agent Such statements should be encouraged and should not be an admission of liability. The General Assembly therefore concludes certain steps should be taken to promote such conduct, statements, or activity by limiting their admissibility in civil actions. In any claim or civil action brought by or on behalf of a patient t allegedly experiencing i an unanticipated i t outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible i ibl as evidence and shall not constitute t an admission of liability or an admission against interest.

9-11-9.2. Medical authorization forms; review of protected health information (a) In any action for damages alleging medical malpractice, contemporaneously with the filing of the complaint, the plaintiff shall be required ed to file a medical authorization at o form. Failure to provide this authorization shall subject the complaint to dismissal. (b) The authorization shall provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records. This authorization includes the defendant's attorney's right to discuss the care and treatment of the plaintiff. (c) The authorization shall provide for the release of all protected health information except information that is considered privileged and shall authorize the release of such information by any physician or health care facility by which health care records of the plaintiff or the plaintiff's decedent would be maintained.

Plaintiffs Argued 9-11 11-9.2 Authorization ti Pre-Empted By HIPAA: 1. Northlake Medical Center, LLC v. Queen, 280 Ga. App. 510 (July 13, 2006); 2. Crisp Regional Hospital, Inc. v. Sanders, & Phoebe Putney Memorial Hospital Inc, v. Sanders, 281 Ga. App. 393 (August 31, 2006); 3. Griffin et al. v. Burden et al., 281 Ga. App. 496 (September 7, 2006)

The intent of HIPAA is to ensure the integrity and confidentiality of patients information and to protect against unauthorized uses or disclosures of the information. Northlake Medical Center, LLC v. Queen, 280 GA. App. 510 (July 13, 2006).

Judgment for Plaintiffs: The Georgia Court of Appeals held that the authorization form set forth in O.C.G.A 9-11-9.2 92 is contrary to HIPAA because : 1. O.C.G.A. OCGA 9-11 11-9 9.2 permits the discovery of all of the plaintiff s medical records, regardless of whether they are relevant to the malpractice lawsuit; 2. O.C.G.A. 9-11-9.2 does not provide for an expiration date or an expiration event that relates to the individual or purpose of the use or disclosure and, 3. O.C.G.A. 9-11-9.2 does not contain a notice of the right to revoke the authorization. Northlake Medical Center, LLC v. Queen, 280 GA. App. 510 (July 13, 2006).

CHAPTER 13. RECOVERY IN MEDICAL MALPRACTICE ACTIONS O.C.G.A. 51-13-1 (2006) Maximum m liability; (b) In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00,, regardless of the number of defendant health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based. (c) In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against a single medical facility, inclusive of all persons and entities for which vicarious liability theories may apply, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of separate causes of action on which the claim is based.

51-13-1. 1. (cont d) (d) In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against more than one medical facility, inclusive of all persons and entities for which vicarious liability theories may apply, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00 from any single medical facility and $700,000.00 from all medical facilities, regardless of the number of defendant medical facilities against whom the claim is asserted or the number of separate causes of action on which the claim is based. (e) In applying subsections (b), (c), and (d) of this Code section, the aggregate amount of noneconomic damages recoverable under such subsections shall in no event exceed $1,050,000.00. (f) In any medical malpractice action, if an award of future damages equaling or exceeding $350,000.00 is made against any party in the action, the trial court shall, upon the request of any party, issue an order providing that such damages be paid by periodic payments.. Such periodic payments shall be funded through an annuity policy with the premium for such annuity equal to the amount of the award for future damages.

Statute of Repose O.C.G.A 9-13 13-71(b) No action for medical malpractice may be brought boug more oet than 5yeas years after ate the edate on which the negligent or wrongful act or omission occurred.

Recent Med Mal Case Law 1. Canas v. Al-Jabi, Kaminer, Board of Regents, MCG Health, Inc., 2006 Ga. App. Lexis 1431 (November 20, 2006)

Recent Med Mal Case Law 1. Canas v. Al-Jabi, Kaminer, Board of Regents, MCG Health, Inc., 2006 Ga. App. Lexis 1431 (November 20, 2006) 5 year Statute of Repose Not tolled by minority Is constitutional Plaintiff may be equitably estopped from asserting S/R defense Continuous Treatment Doctrine Rejected Statute of Limitations Each negligent act may be subject to separate limitation period Failure to warn not subject to med mal S/R or S/L

Recent Med Mal Case Law 2. Pogue v. Goodman, 2006 Ga. App. Lexis 1396 (November 14, 2006) Court granted Defendant Doctor s MSJ- holding general 2 year statute of limitations applied. Doctor intentionally place a catheter in plaintiff s body to relieve pain so catheter was not a foreign object inadvertently left in Plaintiff s body which under an exception would have given her more time in which to file suit.

The Good News If you re a plaintiff s lawyer and you haven t bought the plane and the yacht of your dreams, well, sorry, pal. You re too late. - Alison Frankel, The American Lawyer

SUSAN J. LEVY, ESQ. LEVY & PRUETT 125 Clairemont Avenue Two Decatur TownCenter Suite 360 Decatur, Georgia 30030 404-371-8857 slevy@sjl-law.comlaw.com