Georgia Insurance Defense Lawyer Blog

Posted by Kirsten Daughdril

In a landmark decision, the Georgia Supreme Court unanimously held that a statutory cap on non-economic damages in medical malpractice cases is unconstitutional.

The case of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 2010 Ga. LEXIS 272 (March 22, 2010) arose after the plaintiff suffered permanent disfigurement following cosmetic procedures. The plaintiff brought a medical malpractice suit against the health care provider seeking compensatory damages of medical expenses and non-economic damages for pain and suffering.

At trial, in addition to economic damages (future and past medical expenses), the jury awarded the non-economic damages of $900,000 for plaintiff’s pain and suffering. The award of non-economic damages in excess of $350,000 triggered O.C.G.A. § 51-13-1 which mandated that the non-economic damages award be reduced to $350,000. However, the plaintiff successfully argued to the trial court that the damages caps in O.C.G.A § 51-13-1 were unconstitutional.

Continue reading "GEORGIA SUPREME COURT DECLARES MED-MAL CAP UNCONSTITUTIONAL" »

Posted by Jonathan A. Barash

Last year we reported on Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 681 S.E.2d 152 (2009), in which the Georgia Supreme Court overruled prior case law prohibiting the admission of evidence of an expert witness’s personal medical practices. Prior to Condra evidence of an expert’s own practice was deemed irrelevant on the grounds that the standard of care is that which is employed by the medical profession generally, not what one individual doctor thought was advisable and would have done under the circumstance.

Continue reading "CONDRA RULE ON EXPERT'S PERSONAL PRACTICE EVIDENCE EXTENDED TO TREATING PHYSICIANS" »

Posted by Jonathan A. Barash

An action for medical malpractice in Georgia must be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred. O.C.G.A. § 9-3-71(a). With some exceptions, this usually means the date of the allegedly negligent treatment.

Continue reading "GEORGIA SUPREME COURT LIMITS NEW INJURY EXCEPTION TO MEDICAL MALPRACTICE STATUTE OF LIMITATIONS" »

Posted by Jonathan A. Barash

You are defending a medical malpractice lawsuit. At trial, plaintiff’s expert testifies that treatment your doctor-client failed to do was required by the applicable standard of care. From pre-trial discovery you know, despite her trial testimony, that plaintiff’s expert did not always employ that particular treatment in her own practice. Until two months ago, you would not be able to offer this evidence to impeach plaintiff’s expert. Evidence of an expert’s own practice was deemed irrelevant on the grounds that the standard of care is that which is employed by the medical profession generally, not what one individual doctor thought was advisable and would have done under the circumstance.

Continue reading "GEORGIA JOINS GROWING “TREND” OF JURISDICTIONS ALLOWING EVIDENCE OF EXPERT'S PERSONAL PRACTICE" »

Posted by Susan J. Levy

In Roberts v. Nessim, 2009 Ga. App. LEXIS 428 (March 10, 2009), Plaintiff’s husband died a few days after Defendant physician ordered a nasogastric feeding tube to be placed in his stomach. Plaintiff filed suit against Dr. Nessim and the hospital, asserting professional negligence and fraud. In support of her claims of medical malpractice and in opposition to Dr. Nessim’s motion for summary judgment, Plaintiff submitted the affidavit of her expert, Dr. Tidswell. Dr. Tidswell averred that Dr. Nessim breached the applicable standard of care when he:

1. failed to suspect that the decedent aspirated after he choked;

2. ordered the continued use of the feeding tube;

3. failed to ensure that Plaintiff’s decedent received a pulmonary consult he had ordered;

4. failed to diagnose and treat the aspiration;

5. failed to treat the decedent’s pneumonia; and

6. “as a result of the lack of treatment, Mr. Roberts died.”

Continue reading "GEORGIA COURT OF APPEALS FINDS PLAINTIFF FAILED TO SATISFY BURDEN TO PRODUCE EVIDENCE OF CAUSATION IN MEDICAL MALPRACTICE CASE" »

Posted by Susan J. Levy

In yet another blow to the healthcare industry, Judge Diane Bessen issued an Order on February 9, 2009, striking down Georgia’s caps on noneconomic damages (pain and suffering) in medical malpractice cases. Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus, Fulton County State Court, Civil Action File No. 2007EV002223-J.

Continue reading "GEORGIA JUDGE STRIKES DOWN DAMAGE CAPS IN MEDICAL MALPRACTICE ACTIONS" »

Posted by Susan J. Levy

In a blow to the defense bar, the Georgia Supreme Court recently held, in a unanimous Opinion reversing the Georgia Court of Appeals, that the Health Insurance Portability and Accountability Act ("HIPAA"), prohibits defense counsel from interviewing Plaintiff's treating physicians without specific notice. Moreland v. Austin, 2008 Ga. LEXIS 864 (November 3, 2008).

Continue reading "GEORGIA SUPREME COURT RESTRICTS DEFENSE COUNSEL'S ACCESS TO PLAINTIFF'S TREATING PHYSICIANS" »