Torts
| Publication year | 2015 |
Torts
Phillip Comer Griffeth
Cash V. Morris
Christopher R. Breault
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This Article surveys recent developments in Georgia tort law between June 1, 2014 and May 31, 2015.1
From investigation, complaint, and affidavit, to determining the standard of pre-trial care, successful medical malpractice litigation requires practitioners to possess high degrees of competency, expertise, effort, and strategy. Peril is behind every statute and piece of evidence, and the viability of claims hinges on complex legal questions, where ambiguity and uncertainty reign, and minute factual distinctions often determine the posture and presentation of claims in front of the court and jury.
For instance, while plaintiffs have a two-year statute of limitations for filing medical malpractice actions from the date an injury arising from a negligent act or omission occurred,2 this time period may be tolled by a defendant's fraud that deters the plaintiff from discovering the
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malpractice.3 Even so, the statute may begin to run again if the patient seeks treatment from another doctor because she is no longer deterred from learning the true facts by any conduct of a defendant, "'even if the other doctor consulted does not diagnose the medical problem as arising from the defendant's improper treatment.'"4
In Gallant v. MacDowell,5 a dental malpractice case, the Georgia Supreme Court examined whether the statute of limitations barred a patient's claim filed on January 26, 2010 against Dr. Steven M. Gallant, D.D.S., for an allegedly flawed full-mouth prosthodontic reconstruction performed between mid-August 2006 and January 2008, or whether alleged fraud tolled the claim despite the plaintiff's consult with a nonparty physician regarding the reconstruction.6
The plaintiff alleged that Dr. Gallant knew from the outset that the foundational implants upon which he would build his prosthesis were improperly set by a non-party colleague, Dr. Mollie Ann Winston, D.D.S., making installation of the prosthesis difficult. Despite this setting, Dr. Gallant proceeded without the patient's consultation or knowledge, causing her significant pain that required multiple adjustments, two consultative referrals back to Dr. Winston and, ultimately, a complete reconstruction by a third-party dentist, Dr. Hal Arnold.7 Only on February 13, 2008, in her first appointment with Dr. Arnold, did the patient learn of "the improper placement and angulations of the implants."8
The plaintiff alleged that because she was unaware of the improperly placed implants and Dr. Gallant's knowledge of the same until February 2008, pursuant to section 9-3-96 of the Official Code of Georgia Annotated (O.C.G.A.),9 Dr. Gallant's fraud tolled the statute of limitations.10 The trial court, however, granted the defendant-dentist's motion for summary judgment on the grounds that the suit was time-barred by the statute of limitations and that even if there was fraud, "as of the date [the patient] sought the care of Dr. Winston on January 8, 2008, complaining of the fit and comfort of the prostheses, [the patient] had thereby 'consulted with another doctor,' and was on notice of the tort
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so that the statute began to run," making her ultimate filing untimely.11
Distinguishing the facts, the court determined that since Dr. Winston was inextricably involved in the care the patient alleged to be negligent, jointly with the defendant, she was not an independent doctor rendering inapplicable the rationale for ending the tolling.12 The court explained:
As Dr. Winston, herself, placed the implants, consulting with Dr. Winston could not automatically be deemed to have placed [the patient] on notice of problems with the implants, or Dr. Gallant's opinion that [the patient's] complaints and the problems associated with the installation of the prostheses were caused by improper placement of the implants, but that he failed to disclose this to [the patient]. It cannot be said that [the patient] was no longer deterred from learning the alleged true facts as a result of these visits to Dr. Winston.13
In a unanimous decision in Gala v. Fisher,14 the Georgia Supreme Court provided clarity to plaintiffs curing alleged deficiencies in professional malpractice affidavits.15 The trial court incorrectly interpreted O.C.G.A. § 9-11-9.116 to mean the following:
[A] plaintiff cannot comply with [the pleading requirements of] O.C.G.A. § 9-11-9.1 by filing with a medical malpractice complaint an affidavit given by an expert who is not competent to testify under the applicable standard and then cure such a deficiency by filing an amended complaint with an affidavit given by another expert who is competent to testify.17
On a writ of certiorari, the court held "O.C.G.A. § 9-11-9.1(e) permits the plaintiff to cure this defect by filing an amended complaint with the affidavit of a second, competent expert"18 by its plain language: "If a plaintiff files an affidavit which is allegedly defective . . . the plaintiff may cure the alleged defect by amendment pursuant to Code Section 9-11-15 within 30 days of service of the motion alleging that the affidavit is defective."19 Disagreeing with the defendant and the trial court, the supreme court found no limitations in the statute requiring the original
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affiant to make the curing affidavit with an amendment to the original affidavit because doing so would be inconsistent with the "general liberality of pleading allowed under the Civil Practice Act."20 Further, the court held that this construction was contrary to the supreme court's previous finding that the section contained "no express limitation on the nature of the alleged defect subject to remedy."21
In a decision significantly strengthening the psychiatrist-patient privilege, and certainly preventing the discovery of documents by potential claimants of medical malpractice, the Georgia Supreme Court in Cooksey v. Landry22 reversed a trial court's permanent injunction directing a psychiatrist to produce a deceased patient's psychiatric records to his parents to investigate the doctor's care of their son.23 The court, in a comprehensive decision integrating the various statutes and cases on point, determined the privilege protecting psychiatrist-patient communications were inviolate and no production of these communications would occur without the patient's waiver.24 Relying on the plain language of the privileges set forth in O.C.G.A. § 24-5-501(a)(8)25 and the statutes governing the release of records containing privileged information to a patient's legal representative,26 the court determined the trial court erred in exercising its equitable power to require production of records without a waiver by the deceased patient.27 Acknowledging this result could prevent the disclosure of relevant evidence in "the pursuit of truth and justice,"28 the five-member majority clearly concluded an inviolate privilege, in life or death, of a patient's mental health communications from disclosure is critical to effective mental health treatment and more compelling than any decedent's representative's right to fully investigate claims against a mental health provider that could have cost the patient their life.29
In a case interpreting Georgia's emergency medical care statute, O.C.G.A. § 51-1-29.5,30 a surviving spouse sued the decedent's doctor
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and practice group for failure to properly diagnose and treat a bowel perforation.31 The defendants moved for summary judgment, arguing that because the claim arose out of the provision of "emergency medical care in a hospital emergency department" under O.C.G.A. § 51-1-29.5, the plaintiff was required to meet the heightened evidentiary burden and show by clear and convincing evidence that the doctor was grossly negligent in her care and treatment of the decedent.32 The trial court denied the motion but granted a certificate of immediate review,33
The Georgia Court of Appeals concluded that the trial court erred in determining the statute did not apply, but affirmed the denial of summary judgment "because a question of fact exists as to whether the plaintiff demonstrated by clear and convincing evidence that [the doctor] was grossly negligent."34 Interpreting and applying the statute, the trial court focused on the "department of the physician responsible for the patient's care, not the physical location of the patient in the hospital,"35 and since the doctor was a physician in the critical care—not emergency—department when he assumed the patient's care and transferred her to ICU, she was not "in a hospital emergency department"36 for purposes of the statute, even though she continued to be "temporarily housed there for several hours after she was transferred to [the doctor's] care."37 The court of appeals disagreed.38
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However, the court could not say as a matter of law that a reasonable jury would not find by clear and convincing evidence that the doctor "grossly deviated from the standard of care in her care and treatment" because the plaintiff had shown facts sufficient to raise a jury question regarding whether the doctor committed gross negligence.39
Ten recent cases from the court of appeals provide a representative sampling of the strength of evidence needed to survive a summary judgment motion in a premises liability case: five decided for the premises owner and five for the plaintiff. Superior knowledge being a threshold issue in these claims, the first case decided was in favor of the owner—the defendant challenged the trial court's denial of summary judgment after "a deck railing gave way and [the plaintiff] fell to the concrete below."40 The court of appeals reversed, disagreeing with the application of Hicks v. Walker,41 but agreeing with the trial court that the deck's railing was a static...
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