Legal Happenings in MAG's Office of the General Counsel
Recent Amicus Curiae Briefs
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MAG fights to prevent expansion of physician liability
07.09.08 In June, MAG urged the Supreme Court of Georgia to accept an appeal from, and reverse the decision of, the Georgia Court of Appeals. The rule announced by the Court of Appeals in Schramm v. Lyon created an exception to the statute of repose in “failure to warn” cases under which a physician committed a new negligent act or omission each time the physician failed to warn a patient of risks associated with previous treatment by a different physician.
In Schramm v. Lyon, the plaintiff filed a medical malpractice suit arising from overwhelming post splenectomy infection (OPSI) 22 years after having her spleen removed. Plaintiff alleged none of the physicians that treated her within the previous five years warned her of the risk of OPSI or recommended treatment against OPSI. Although the trial court dismissed the claims against three physicians that began treating plaintiff more than five years before the suit was filed, the Court of Appeals reversed, finding each time the physicians failed to warn constituted a new negligent act or omission.
In its amicus curiae brief, MAG urged the Supreme Court to hear the appeal and reverse the Court of Appeals decision on the basis failure to warn cases should be treated the same as misdiagnosis cases because both require the physician to exercise the same professional judgment, the Court of Appeals decision is contrary to the intent of the legislature in enacting the statute of repose, and the Court of Appeals decision is akin to adopting the “continuous treatment doctrine” previously rejected by the Supreme Court.
MAG Defends Physicians' Right to Equal Access to Evidence
06.25.08 On June 16, 2008 the Medical Association of Georgia (MAG) filed an amicus curiae brief in the Georgia Supreme Court urging the court to uphold a Court of Appeals decision holding the HIPAA privacy rule does not prohibit ex parte communications between a medical malpractice defendant and the patient’s prior treating physicians as permitted under state law.
In Moreland v. Austin, the trial court ruled HIPAA prohibited such communications. The Georgia Court of Appeals, finding Georgia law had more stringent privacy protections than HIPAA, reversed the trial court. In its brief, MAG argues HIPAA does not preempt such ex parte communications as permitted under Georgia law and it is unjust to use HIPAA to disrupt the fair and reasonable discovery procedures allowed under Georgia law.
The case is currently pending before the Georgia Supreme Court.
MAG Attacks Plaintiff-Friendly, Judicially-Created Exception to Georgia Law in Medical Malpractice Cases
06.10.08 MAG has filed an amicus curiae brief with the Georgia Supreme Court urging the Court to overturn a judicially-created exception to the statute of limitations in medical malpractice cases.
In Amu v. Barnes, Plaintiff alleges Dr. Amu negligently misdiagnosed colon cancer as hemorrhoids in 2000. Plaintiff was subsequently diagnosed in 2004 with stage IV colon cancer and filed suit against Dr. Amu. The jury returned a plaintiff’s verdict and Dr. Amu appealed to the Georgia Court of Appeals. On appeal, Dr. Amu argued, among other things, the suit was time barred under Georgia’s two-year statute of limitations in medical malpractice cases. Applying a judicially-created exception to the statute of limitations in medical malpractice cases, known as the subsequent injury rule, the Court affirmed the jury’s verdict reasoning that because the statute of limitations runs from the date of injury and the metastasis of plaintiff’s cancer constituted a new injury, the suit was not time barred by the statute of limitations.
On appeal to the Georgia Supreme Court, MAG argues application of the subsequent injury rule in cancer cases is, in effect, an application of the discovery rule, under which the statute of limitation runs from the date an injury is discovered, and has been rejected in Georgia. MAG also argues the subsequent injury rule defeats the purpose of the statute of limitations, divests the legislature of its control over public policy, misconstrues how physicians diagnose disease, and misconstrues the disease process itself. As such, the Court should abandon the rule.
On June 2, the Supreme Court of Georgia affirmed the opinion of the Georgia Court of Appeals. The Georgia Supreme Court found the “new injury” exception is entirely consistent with the statutory requirement that the statute of limitation commences on the date of the injury, even if the patient is not aware of either the cause of the pain or the connection between the symptoms and the negligent act or omission. The court stated for the “new injury” exception to apply, there must be evidence that the plaintiff develop a new injury from the time period of the original misdiagnosis and the plaintiff must have been asymptomatic for a period of time following the original misdiagnosis. The Georgia Supreme Court’s opinion affirms the Whitaker line of cases decided nearly two decades ago as an exception to the statute of limitations.