Torts

• Publication year: 2014

Torts

Phillip Comer Griffeth

Cash V. Morris

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Torts

by Phillip Comer Griffeth^* and Cash V. Morris^**

I. Introduction

This Article surveys recent developments in Georgia tort law between June 1, 2013 and May 31, 2014.¹ During this survey period, the Georgia Supreme Court decided several cases of significance in the medical malpractice arena, and a seven-judge panel of the Georgia Court of Appeals was called upon to decide a slip-and-fall case. Some might argue that a few of these cases were victories for the plaintiff's bar. However, a close reading of the opinions reflects some well-reasoned and impressive legal arguments concerning the gross negligence and summary judgment standards applied by Georgia's appellate jurists. These opinions will be cited by both plaintiff's and defense attorneys in future cases and by the courts in appellate decisions.

II. Medical Malpractice

Returning to its decision in Baker v. Wellstar Health System Inc.,² the Georgia Supreme Court, in Wellstar Health System, Inc. v. Jordan,³ made clear that the Health Insurance Portability and Accountability Act

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of 1996 (HIPAA)⁴ and Baker are not the plaintiff's sword and shield to control the dissemination and use of the plaintiff's personal health information (PHI) in litigation.⁵ In this widower's wrongful death action, the supreme court reviewed a trial court's order compelling the defendant-healthcare providers to produce transcripts of defense counsel's ex parte interviews of non-party healthcare providers who treated the decedent that were conducted pursuant to a Baker qualified protective order (the QPO).⁶ Relying on section 9-11-26(b)(3) of the Official Code of Georgia Annotated (O.C.G.A.),⁷ the defendants objected to production of the interviews on work-product grounds. However, the plaintiff maintained that the materials were discoverable under HIPAA and the QPO. The QPO, which the trial court had granted, limited the questioning in the interviews to the decedent's cancer diagnosis and treatment, and the impact smoking had on her life expectancy or enjoyment of life. The QPO also provided for the transcription of the interviews but did not provide the plaintiff with notification of the interviews or an opportunity to attend them. The order was silent regarding the transcripts' purposes and production. Without any explanation of its reasoning, the trial court directed the defendant to produce the transcripts of the interviews.⁸

Examining HIPAA and its privacy purpose, the supreme court found no basis for mandatory production of the transcripts to the plaintiff.⁹ Indeed, the transcripts contained the decedent's PHI, and under the United States Department of Health and Human Services' privacy rules,¹⁰ which were promulgated pursuant to the department's statutory authority,¹¹ health care providers are prohibited from disclosing a person's PHI except in limited circumstances.¹² In fact, HIPAA provides that an individual's right to access his or her own PHI is limited in scope.¹³ With a preamble stating that the regulations do not seek to require disclosure of work product or to alter the rules of discovery, HIPAA regulations expressly exempt from disclosure

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"[i]nformation compiled in reasonable anticipation of, or for use in, a civil . . . action or proceeding."¹⁴ Plainly put, "HIPAA does not entitle an individual to access protected work product in the possession of a covered entity simply by virtue of the fact that it contains protected health information. One seeking production of such information must do so in accordance with applicable rules of discovery."¹⁵

Looking at a QPO that was silent on the purpose, use, and production of the transcripts and that contained no notification provision or right to attend, the court was unpersuaded that the transcripts' purposes were for later production any more than they were for in-camera review to ensure the defendants did not exceed the QPO.¹⁶ Citing well-established authority that attorney-witness interviews are work product¹⁷ and finding no authority to require production of the transcripts under HIPAA or the QPO, the supreme court vacated the trial court's order with direction to conduct a hearing on whether the defendants waived the work-product protection or if the plaintiff had "a substantial need for the evidence and that it would cause an undue hardship to develop this evidence by other means."¹⁸

Continuing to interpret the Tort Reform Act of 2005,¹⁹ the supreme court in Hankla v. Postell²⁰ made crystal clear its construction of O.C.G.A. § 24-7-702(c)²¹ for the qualification of experts in medical malpractice suits testifying to the applicable standard of care and the parties' compliance with or deviation from that standard.²² Reviewing a defense verdict, the supreme court affirmed the Georgia Court of Appeals reversal of the trial court's qualification of the defense's expert doctor's testimony that supported the defendant-nurse midwife's handling of the complicated delivery of the plaintiff's son.²³ Although the defense's expert physician was clearly knowledgeable, certified, and experienced in the same deliveries, the supreme court determined that

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the doctor was not qualified to testify under O.C.G.A. § 24-7-702(c)(2) because she was neither "of the same profession" as the defendant (a nurse midwife) pursuant to subparagraph (c)(2)(C), nor had she "supervised, taught, or instructed" nurse midwives in accordance with subparagraph (c)(2)(D).²⁴ O.C.G.A. § 24-7-702(c) provides, in pertinent part,

[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency . . .; and
(2) . . . 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:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years . . .; or
(B) The teaching of his or her profession for at least three of the last five years . . .; and
(C) Except as provided in subparagraph (D) of this paragraph: (i) Is a member of the same profession . . .; and
(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having . . . supervised, taught, or instructed [non-physician health care providers] has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider.²⁵

Affirming the court of appeals previous construction of O.C.G.A. § 24-7-702(c) in Smith u. Harris,²⁶ the supreme court agreed that

[t]he legislature's use of the word "or" between subparagraphs (2)(A) and (2)(B), followed by its use of the word "and" between subparagraphs (2)(B) and (2)(C), indicates that a medical expert must show either "active practice" or "teaching" for "at least three of the last five years," but that whichever of these may be the case, the expert must also be "a member of the same profession" as the person whose performance he is evaluating.²⁷

Therefore, "to qualify as an expert in a medical malpractice action . . ., the witness must (1) have actual knowledge and experience in the

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relevant area through either 'active practice' or 'teaching' and (2) . . . be in the 'same profession' as the defendant" or a physician with the knowledge of the relevant standard of care as a result of having supervised, taught, or instructed non-physician health care providers.²⁸

Even with this clear direction on the reading and application of the statute, trial counsel may never feel entirely sure about their expert's qualifications. As shown in Toombs v. Acute Care Consultants, Inc.,²⁹ qualification of these witnesses requires a lawyer-and ultimately the court-to make a determination as to what "area of specialty [was] at issue and what procedure or treatment was alleged to have been negligently performed."³⁰ In Toombs, a widow filed suit against her deceased husband's post-surgical care medical providers for failing to evaluate his risk for and prevent a blood clot (deep vein thrombosis or DVT) in his leg that broke loose and traveled to his lungs (a pulmonary embolism or PE), resulting in his respiratory distress and death. At the time of his death, Charles Toombs, Jr. was recovering in the hospital from a second surgery to re-attempt a skin graft over a workplace chemical burn. The plaintiff's expert, Michael S. Oleksyk, M.D., who had decades of clinical experience and academic scholarship in the evaluation, prevention, and treatment of post-surgical DVT and PEs, opined that Toombs was at a significant risk for a DVT and PE and that the defendants deviated from the standard of care in failing to evaluate or reduce this risk. Despite this, Dr. Oleksyk was disqualified under O.C.G.A. § 24-7-702(c) from testifying as to the standard of care applicable to the treatment of a post-surgical burn-care patient who had undergone skin-graft surgery.³¹

Reversing the trial court's disqualification and consequential grant of summary judgment, the court of appeals conducted the two-part inquiry using the allegations in the complaint and attached affidavit, holding that

the alleged negligence was the Defendants' failure to evaluate, diagnose and properly treat Charles for an increased risk of DVT and PE . . . . Accordingly, the area of specialty in this case concerns the standard of care applicable to DVT prophylaxis in a hospitalized patient who is at increased risk for DVT and PE.³²

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Therefore, Dr. Oleksyk was more than qualified to give his opinion.³³ Although the result here is logical and clear, in a case...