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Professional Malpractice Case Law Update

Posted December 14, 2007 in News

The following case law update was provided by the GDLA's Professional Liability Substantive Law Committee.

This case law update summarizes significant Georgia appellate court decisions in professional malpractice cases issued between August 1 and December 1, 2007.

Austin v. Moreland, 2007 WL 2937564 (Ga. App. October 10, 2007). In Austin, the Court of Appeals noted that the Georgia Civil Practice Act places more stringent requirements than HIPAA does on requests for documents from a third-party health care provider.The Court of Appeals found that because HIPAA does not preempt contrary provisions of state law if the state law offers more stringent privacy protections, O.C.G.A. § 9-11-34(c) is not preempted by HIPAA.

The Court of Appeals held that HIPAA does not preclude ex parte communications between defense counsel and a plaintiff’s prior treating physicians; instead, provided that protected health information is not disclosed by a health care provider except pursuant to the HIPAA privacy rule, HIPAA allows defense counsel to continue to participate in ex parte communications to the extent such communications are authorized by Georgia law.

Grady General Hospital v. King, 2007 WL 3121243 (Ga. App. October 26, 2007). In Grady, the Court of Appeals found that a nurse’s administration of medication was within the scope of nursing duties involving professional skill and judgment. The Court of Appeals held that because the administration of medication involves the professional skill and judgment of a nurse, and nurses are licensed professionals to whom O.C.G.A. § 9-11-9.1 explicitly applies, plaintiff’s claim for failing to properly administer medication is a claim of professional negligence requiring the statutory expert affidavit.

Kaminer v. Canas, 2007 WL 3129948 (Ga. October 29, 2007). In Kaminer, the Georgia Supreme Court held that in a case of an alleged misdiagnosis in a medical malpractice action, the injury begins immediately upon the misdiagnosis due to pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated.The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.

The Georgia Supreme Court found that because O.C.G.A. § 9-3-71(a) provides that the statute of limitation begins to run at the time of injury, initiating the period of limitation in a medical malpractice action at some other point such as when the alleged negligence is first discovered, would be contrary to the plain language of the statute.Therefore, the Court held that the continuing treatment doctrine cannot apply in Georgia because it is inconsistent with O.C.G.A. § 9-3-71(a).Interestingly, the Georgia Supreme Court concluded the majority opinion by stating that O.C.G.A. § 9-3-71(a) is “an extremely harsh limitation in application because it has the effect, in many cases, [certainly including this one,] of cutting off rights before there is any knowledge of injury.”

Nathans v. Diamond, 2007 WL 4118285 (Ga. November 21, 2007). In Nathans, the Georgia Supreme Court held that the trial court did not abuse its discretion in concluding that plaintiff’s expert witness in a medical malpractice case was not qualified to give an opinion under the standards set forth in O.C.G.A. § 24-9-67.1. The Georgia Supreme Court also held that the trial court properly ruled against the plaintiff’s constitutional challenge to the retroactive application of O.C.G.A. § 24-9-67.1.