Obtaining records from a non-party | Atlanta lawyer

To obtain records from a nonparty who is not a practitioner of the healing arts, hospital, or health care facility, counsel can file for the production of documents under OCGA 9-11-34(c)(1). The nonparty discussing the requested information has 30 days to respond under this procedure. Records that could be obtained under this statute include employment records, school records, Worker’s Compensation reports, or other insurance files. These records do not implicate HIPPA and do not come under the medical authorization form requirement of OCGA 9-11-9.2.

OCGA 9-11-35A authorizes physical or mental examinations for parties to a lawsuit. An examination ordered pursuant to this section is commonly called an independent medical examination. A party can request the court to order a party to submit to the examination. The order may be made only on motion and for good cause shown upon notice to the person to be examined and to all parties and shall specify the time place and manner condition and scope of the examination and the person or persons by whom it is to be made OCGA 9-11-(35)a. The party that is submitted to the examination may request a report about the examiner’s findings from the party who requested the examination. If this request is made the party requesting the examination should provide the party who was examined a detailed report of the examining physician setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. The court can order this report if the physician fails to make the report his testimony can be excluded OCGA 9-11-35 b3. Contact an atlanta lawyer for help with your case today.

Third party requests | Atlanta lawyer

To obtain records from a nonparty who is not a practitioner of the healing arts, hospital, or health care facility, counsel can file for the production of documents under OCGA 9-11-34(c)(1). The nonparty discussing the requested information has 30 days to respond under this procedure. Records that could be obtained under this statute include employment records, school records, Worker’s Compensation reports, or other insurance files. These records do not implicate HIPPA and do not come under the medical authorization form requirement of OCGA 9-11-9.2.

OCGA 9-11-35A authorizes physical or mental examinations for parties to a lawsuit. An examination ordered pursuant to this section is commonly called an independent medical examination. A party can request the court to order a party to submit to the examination. The order may be made only on motion and for good cause shown upon notice to the person to be examined and to all parties and shall specify the time place and manner condition and scope of the examination and the person or persons by whom it is to be made OCGA 9-11-(35)a. The party that is submitted to the examination may request a report about the examiner’s findings from the party who requested the examination. If this request is made the party requesting the examination should provide the party who was examined a detailed report of the examining physician setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. The court can order this report if the physician fails to make the report his testimony can be excluded OCGA 9-11-35 b3.Contact an atlanta lawyer today with help on your case.

What you need to know about HIPPA | Atlanta lawyer

As part of the health insurance portability and accountability act of 1996 HIPPA, Congress authorized United States Department of Health and Human Services to promulgate regulations establishing strict privacy protection for health care information and medical records. These records are codified at 45 CFR 160 and 164 and are known collectively as the HIPPA privacy rule. The rule generally precludes a health care provider from using or disclosing protected health information except as permitted by the privacy regulations. The rule generally precludes a health care provider from using or disclosing protected health information except as permitted by the privacy regulations. As a practical matter, the HIPPA privacy rule does create new barriers for attorney seeking to obtain an individual’s medical records or other protected health information for use in litigation. Moreover, any less restrictive state laws, including rules of procedure, or any state laws contrary to the requirements of the HIPPA privacy regulations are preempted by the federal regulations. Knowledge of the HIPPA regulations is therefore important for lawyer seeking to serve subpoenas and make other formal or informal discovery requests during litigation. As a practical matter, the HIPPA privacy rule does create new barriers for attorneys and you will as well as will is seeking to obtain individuals medical records or other protected health information for use in litigation. Under HIPPA, discovery of individuals medical records may generally occur in one of 3 ways  1) through a signed authorization 2) through subpoena or other appropriate discovery request 3) pursuant to a court order.

As always, the easiest and most direct way to receive protected health information is through a valid patient authorization. After HIPPA, however, patient authorizations must be more detailed than those accepted before the rule became effective. The HIPPA privacy regulations dictate exactly what information a valid authorization must contain, and these regulations should be consulted if counsel intends upon drafting the authorization for a client or another patient.

A valid authorization that is one that includes:

1)      a description of the information to be used or disclosed that identifies information in a specific and meaningful fashion.

2)      The name or other specific identification of the person, or class of persons, authorized to make the requested disclosure.

3)      The name or other specific identification of the person or class of persons, to whom the health care provider may make the disclosure.

4)      A description of each purpose of the requested use or disclosure. The statement at the request of the individual is a sufficient description the purpose and individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.

5)      An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure.

6)      Signature of the individual and date. If the authorization is signed by personal representative of the individual, a description of such representative’s authority to act for the individual must also be provided.

In addition to these core elements of the authorization must also contain statements adequate to place the patient on notice of certain rights, including his right to revoke the authorization at any time, and of the potential for the protected health information to be redisclosed by the recipient. HIPPA regulations further mandate that the authorizations be written in plain language and that a copy of the signed authorization be provided to the individual whose protected health information is sought. In practice health care providers found upon an authorization drafted by counsel and will usually prefer their own authorization form. In which case, practitioners need to ensure that the authorization includes a complete list of people authorized to receive a copy of the protected health information including the court, experts, witnesses, attorneys, and support staff.

Subpoena or other discovery request

In the absence of a valid patient authorization, the HIPPA privacy rule also permits a health care provider to disclose a patient’s protected health information in response to a subpoena, discovery request or other lawful process provided such requests are accompanied by specific assurances from the requesting party. The need for these additional privacy assurances term satisfactory assurances under HIPPA is sometimes referred to as a subpoena plus requirement. Satisfactory assurances provided with a subpoena should be attached via a written statement and accompanying documentation stating :

1) that reasonable efforts were made to ensure that the individual who is the subject of the protected health information has been given notice of the request.

2) that the notice include sufficient information and time period so the individual could object to disclosure.

3) that no objection has been filed, or if filed, was resolved by the court or administrative tribunal, and the disclosures sought are consistent with that resolution.

Satisfactory assurances may alternatively be provided by serving the health care provider with written statements and documentation demonstrating that reasonable efforts have been made by the requesting party to enter or obtain a qualified protective order. A qualified protective order is one that prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which it was requested and requires the return or destruction of the protected health information at the end of the litigation or proceeding.

If the party seeking to discover the HII attaches documentation providing that satisfactory assurances by either method, the health care provider may disclose the patient’s medical records without having a signed authorization from the patient himself.

The practical effect of the HIPPA privacy rule has been an increase in the notice to the patients or their representatives that protected health information is being sought and potentially disclosed. Most third-party discovery requests under OCGA 9-11-34 are preceded by a letter from defense counsel to the patient’s counsel that protected health information will be sought from a specific provider within 10 days via a 3^rd party request. Patient’s counsel can acquiesce by silence, consent affirmatively, or object to the provider. If privileged materials may be contained within the requested materials the best practice is to object in writing to the disclosure of the privileged materials only. This procedure will adhere to HIPPA and allow for discovery and investigation of the claim.

HIPPA prohibits ex parte communication among defense counsel and the patient’s providers without the patient’s consent concerning protected health information. This is HIPPAs most significant impact on medical negligent litigation in Georgia. The net effect of this change is to require more mutual interviews or depositions with providers and to eliminate secret communications. While defense counsel’s unilateral access to providers has been limited access through discovery tools, which provides notice to all parties, is available. The Georgia civil practice act intent was for all parties to have notice of discovery tools and HIPPA simply requires that the disclosure protected health information is done with proper notice also. The Court of Appeals has held that a surviving wife who brings a wrongful death claim against medical providers for her husband’s death is authorized to have the medical records of her deceased husband. Because she brought the action under the Georgia wrongful death statute, and because under the statute she has the authority to act for the deceased person, HIPPA does not bar her from obtaining the records.

The Georgia Supreme Court has ruled that HIPPA does not allow defense attorneys to informally interview plaintiff’s treating physicians. Such ex parte contacts are not allowed under the act, and the act takes precedence over Georgia law  related to the discovery of a plaintiff’s medical records.Contact in Atlanta lawyer about your case today.

Economic caps | Atlanta lawyer

OCGA 51-13-1 applies to medical negligence cases that arise on or after February 16, 2005. It places limits on non-economic damages. In case against health care providers noneconomic damages are limited to $350,000 regardless the number providers and even if the jury’s verdict for noneconomic loss specifically exceeds the cap. A 350,000 cap also applies to actions against health care facilities. With respect to health care facilities a Applies to each facility but for 2 or more facilities the cap Cannot exceed 700,000. The facility Encompasses all providers for which vicarious liability applies. Thus the provider and facility must be independent to have a $700,000 cap, otherwise the single facility  Will apply. For example, in a case against multiple independent providers, a single $350,000 Will apply regardless of the number of negligent providers. In a case against a physician or hospital for the Hospital alleged to be vicarious liable, a single $350,000 Applies. When the hospital and the doctor independently negligent the facility or provider Both apply, and a total of $700,000 Will apply. Noneconomic damages means damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature. This term does not include past or future:

medical expenses, including rehabilitation and therapy. Wages or earnings capacity, income. Funeral and burial expenses.

Based on the statutory language to Applies to all cases, including wrongful death and catastrophic injury cases. The Treats derivative claims as one claim and limits the combined claims. Thus a husband and wife would be considered one claimant when bringing a loss of consortium claim.Contact an Atlanta lawyer today for help with your case.

Transfer of a case to a different venue | Atlanta DUI lawyer

The Gen. Assembly also introduced forum non-conveniens to Georgia during the 2005 legislative session by enacting OCGA 9-10-31.1 which applies to all cases. Georgia statutory forum non conveniens doctrine allows a court to dismiss or transfer a case that is otherwise in a proper venue upon consideration of 7 factors,

relative ease of access to sources of proof.

Availability and costs of compulsory process for attendance of unwilling witnesses

possibility of viewing the premises, if viewing would be appropriate to the action,

unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy administrative difficulties for the forum courts

Existence of local interests in deciding the case locally, and

the traditional deference given to a plaintiff choice of forum. 

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Lack of affidavit filed with the complaint | Atlanta lawyer

Lack of an affidavit filed with the complaint

If a plaintiff fails to file an affidavit and that failure is raised by motion to dismiss filed contemporaneously with the initial responsive pleading, the complaint is subject to dismissal. If an affidavit is not filed with the complaint, that plaintiff may not dismiss a lawsuit and refile the case after the expiration of the statute of limitations and obtain the benefit of the renewal statute, unless the court makes a determination that the affidavit was available and not filed due to a mistake. The failure to attach the affidavit is generally not an amendable defect. If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice. Since the renewal privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once a case is dismissed for the failure to attach an affidavit, it will not be subject to renewal. Only by dismissing and refiling the suit prior to the running of the statute of limitations can the suit be revived if an affidavit is not attached initially. When the court determines that the plaintiff had the requisite affidavit within the time required by OCGA 911 9.1.c and the failure to file the affidavit was a result of a mistake, renewal may be possible. For example in Rector v. oh day, the parties agreed that the plaintiff had the requisite affidavit and that it was inadvertently not filed. The plaintiff dismissed and refiled the action, and in the renewal action, the Court of Appeals held that the underlying facts are precisely the scenario that OCGA 9-11-9.1 (c) was intended to address. Rector 268 Ga. App. at 867. Contact an Atlanta lawyer today to help you with your case.

Expert affidavit requirements | Atlanta DUI lawyer

Necessary affidavit elements

An  affidavit must list the factual basis for each claim made. This may be done by discussing the factual situation and the basis for the affiant’s knowledge. It may summarize the foundational information and indicate that it has been gained from medical records. The affiant may summarize the foundational information and indicate that it is been gained from the medical records. If I am a also based affidavit on factual allegations in the complaint that are presumed to be true and the affidavit can also attach incorporate by reference all the medical records relied upon. The affidavit must contain and set forth at least one specific act of negligence or an omission that constitutes negligence. While no magic words are listed in the statute, the affidavit must typically indicate that in the affiant’s opinion, given the facts and circumstances outlined in the affidavit from the medical records and factual allegations of the complaint assumed to be true, the defendant professional violated the applicable standard of care. Vicknair v. Miller to 23 Ga. App. 692, 1996. The affidavit should also contain information that the violation of the standard of care caused or contributed to the ultimate injury. While OCGA 9-11-9.1 does not specifically require causation the failure to include causation in the affidavit opens the matter to a potential motion for summary judgment on causation grounds which is simply unnecessary in most cases. The affidavit must demonstrate on its face that the expert is qualified. The affidavit must be signed and sworn to in person. The lack of a properly executed notary jurat renders an affidavit insufficient. To qualify as a practicing expert the expert affidavit must demonstrate on its face that the expert not only has the requisite training, but that the expert is specifically familiar with the specific practice alleged to be negligent but actually performing the medical act with a sufficient level of frequency as determined by the court, in the past 3 of 5 years. Spack v. trailer 288 Ga. App. 898, 2007. It is not an abuse of discretion to dismiss medical negligence complaint based upon an affidavit does that does not specifically reference experience in the last 3 of 5 years despite a statement that generally indicates familiarity with the standard of care or even a procedure based on 30 years experience. To qualify as a teaching expert, the witness must be an employed member of the faculty at an educational institution and must have taught others the medical act alleged to be negligent for at least 3 of the past 5 years. Only members of the same profession may testify as experts against one another, although a physician may qualify as an expert against nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician’s assistants, physical therapist, occupational therapist, or medical support staff if the physician can demonstrate the requisite knowledge of the applicable standard of care in at least 3 of the past 5 years prior to the alleged negligence. When a medical doctor or doctor of osteopath is a defendant, only another medical doctor or doctor of osteopathic may qualify as a standard of care witness. To qualify as a practicing expert, the expert affidavit must demonstrate on its face that the expert not only has the requisite training, but that the expert is specifically familiar with the specific practice alleged to be negligent by actually performing the medical act with the sufficient level of frequency, as determined by the court, in the past 3 of 5 years. The expert affidavit must contain the qualifications or credentials of the expert to demonstrate that the expert is competent to testify. This can be accomplished by attaching a copy of the curriculum vitae or actually having the affiant go through the credentials in the affidavit. In light of OCGA 24-9-67.1 ACV may suffice for educational and professional qualifications, but the body of the affidavit should include a statement concerning the level of familiarity with the underlying medical procedure or diagnosis in 3 of the last 5 years to avoid potential attacks and for teaching experts the affidavit should state in addition to the curriculum vitae that the expert is employed by the educational Institute and is not just an unpaid clinical professor. OCGA 24-9-67.1 does not allow a nurse to testify or be an expert against a doctor. It is not enough for an affidavit to state that the standard of care was violated, the affidavit must detail and identify at least one negligent act or omission. Edwards v. Van Straten 206 Ga. App. 21 (1992). Pursuant to OCGA 9-11-15, if the affidavit is challenged the plaintiff may amend the affidavit or cure it within 30 days of service of the motion alleging the defect. A challenged affidavit will be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. V. Wilson and Company engineers and architects 262 Georgia 234 1992. Bell v. VB v. health Sys. Inc. 272 Ga. App. 856 (2005) section 8: 6 in the medical malpractice book. The Georgia courts have construed affidavits as liberally as possible, as long as such a construction does not detract from the gatekeeper function of OCGA 9-11-9.1 in eliminating frivolous cases. Contact an Atlanta lawyer for a free consultation.

Special pleading requirements | Atlanta DUI lawyer

OCGA 9-11-8 defines an action for medical malpractice as a claim for damages resulting from the death or injury of a person arising out of:

a. Health medical dental or surgical service diagnosis prescription treatment or care rendered by a person authorized by law to perform such services or by any person acting under the supervision and control of a lawfully authorized person: or

b. Care or service rendered by any public or private hospital nursing home clinic, Hospital Authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment. Complaints for medical negligence are governed by the civil practice act and notice pleading is generally sufficient. However special pleading requirements apply to claims for medical negligence. An affidavit of a competent expert allege at least one act of negligence OCGA 9-11-9.2 which. Require the contemporary filing of the medical authorization was held in violation of the Federal hippo rule in Allen v. Wright. When pleading a claim for medical negligence for an amount less than $10,000, a sum certain must be alleged. Nonconforming demands are subject to a motion to strike and authorize the court to impose sanctions, including disciplinary action against counsel directly. When seeking in excess of $10,000 the complaint must allege that the party demands judgment in excess of $10,000 and may not demand any further monetary demand. When faced with a pleading that seeks medical factual admissions, the best practice is to admit generally accepted medical facts with the proviso that each patient is unique in that individual factors can create exceptions to accepted medical facts. The most dangerous response to a medical fact allegation is to allege a lack of knowledge, as such a response by the medical professional can be used to demonstrate a lack of medical knowledge before jury via a skilled cross-examination. In response to the actual complaint, the requirement of an answer in a medical negligence case do not materially differ from that of any other matter. The answer shall allege the defenses and shall admit or deny the allegations of the plaintiff. If a party has no knowledge, she should allege as such. The answer must also raise all affirmative defenses, including the statute of limitations. The failure to deny an allegation that requires a response constitutes an admission, except as to the matter of damages. To avoid a default situation in state court, in answer must be filed in response to a complaint, even if a motion to dismiss is filed. When a medical malpractice case is in default, it is afforded special treatment under OCGA 9-11-54. In cases where the demand is for in excess of $10,000, the default trial on damages may only proceed after defaulting party has been given 3 days notice. Non-medical negligence cases are not afforded the special notice. OCGA 9-11-54 section. In most litigation the complaint is viewed as one of the more critical documents in the case. The requirements of OCGA 911 9.1 are what are critical in a medical negligence case. In all actions alleging professional negligence, an affidavit of a licensed professional competent to testify, which specifically sets forth at least one negligent act or omission claimed to exist and the factual basis for each such claim, shall be attached to the initial pleading. OCGA 9-11-9.1 a 2008 Merk v. St. Joseph’s Hospital of Atlanta 251 Ga. App. 631 (2001). The purpose of OCGA 9-11-9.1 was to reduce the number of frivolous negligence claims filed. The affidavit does not need to make out a prima facie case that is capable of defeating summary judgment prior to an answer. Sawyer v. Dekalb Medical Center to 34 Ga. App. 54 (1998). What originally began as a pleading requirement has become one of the most litigated areas in Georgia law. Several amendments OCGA 9-11-9.1 have attempted to clarify the pleading requirement to avoid the mass of litigation a generated. The current incarnation of OCGA 9-11-9.1 includes a grace period in creates a very narrow exception to the contemporaneous filing requirement. If a good faith basis exist to believe that the statute limitations will expire within 10 days of filing and if due to time constraints the plaintiff cannot prepare an affidavit with a competent expert, the plaintiff may supplement a medical negligence complaint with an affidavit within 45 days of filing. However, for the grace period to apply, the plaintiff’s counsel must file an affidavit with the complaint swearing that counsel or his or her law firm were retained not more than 90 days prior to the expiration of the statute limitation. Failure to file the attorney’s affidavit or evidence that the attorney was retained more than 90 days prior to the expiration of the statute limitation shall subject the complaint to dismissal. OCGA 9-11-9.1 act of the bishop to 94 Ga. App. 132, 2008. Even a pro se defendant is required to file an attorney affidavit in the situation where they previously had counsel and the failure to attach attorney affidavit or the professional negligence affidavit subjects the medical negligence complaint to dismissal.Contact an Atlanta Atty. today with help for your case.

The sun never sets on fraud | Atlanta DUI lawyer

As a response to a statute of limitations defense, a plaintiff sometimes asserts that the treating physician misrepresented plaintiff’s condition or the care provided and that plaintiff did not discover this misrepresentation until the statute of limitations had run. To toll the statute, plaintiff must establish essential elements of fraud within the physician-patient relationship or lose on summary judgment. Allegations of negligent treatment, advice and misdiagnosis, even willful negligence are insufficient to raise a question of fact on fraud. Fraud issues are often fact intensive, and the appellate courts will examine the record closely to see if plaintiff has raised and supported a reasonable inference of culpable misrepresentation. Fraudulent conduct by the treating physician will toll the statute of limitations OCGA 9-3-96 states if the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud. It is not enough however for plaintiff to simply prove fraud. Fraud sufficient to toll the statute limitation requires one: actual fraud involving moral turpitude on the part of the defendant 2) the fraud must conceal the cause of action from the plaintiff thereby debarring or deterring the knowing of the cause of action 3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation. Kane v. Shoup 260 Ga. App. 723 2003. Note that plaintiff does not have to prove actual fraud. The plaintiff has the burden of proving facts to establish fraud to toll the statute Edmonds v. Bates 178 Ga. App. 69 (1986). To toll the statute the fraud must involve moral turpitude not mere broken promises, unfulfilled predictions or erroneous conjecture as to future events. Also plaintiff must offer evidence of fraudulent misrepresentation made by each defendant for whom plaintiff seeks to have the statute of limitations tolled. Charter peach 3^rd behavioral health system v. Kohout 233 Ga. App. 452 (1998). The statute is tolled only until the fraud is discovered or should have been discovered unless excused. Plaintiff must exercise ordinary care to discover the fraud, questions about the existence of fraud and plaintiff’s diligence in discovering it are ordinarily jury questions. The plaintiff must do more than make a bare allegation of fraud that is unsupported by the record to raise an issue of fact. The patient physician relationship is a relationship of trust and confidence. The patient with no expertise or training entrusts his  medical condition to the trained physician the patient with no expertise or training entrusts his medical condition to the trained physician. Because of this confidential relationship, an exception arises to the requirement in typical fraud cases that defendant makes some actual misrepresentation. Within the confidential relationship, silence when the doctor should speak or failure to disclose what should be disclosed will constitute fraud as much as an actual misrepresentation. Thus within the doctor-patient relationship plaintiff need not prove actual fraud. Relationship creates a duty that requires a doctor to inform the patient about his condition. Nevertheless there must be evidence that there was an intent to this conceal by silence. Charter peach for behavioral health system v. covert 233 Ga. App. 452 (1998). The Court of Appeals found sufficient evidence of intent to conceal in Quattlebaum v. Co. wort 182 Ga. App. 473 (1987). There defendant did not advise his patient that defendant had failed to connect the left hepatic duct to the small intestine, and in fact prepared misleading and incorrect medical records on this point. This conduct raised a jury question on fraud. The court found a reasonable inference of a knowing concealment and cover up, not just a mere misstatement. Similarly in set live v. Hackney 164 Ga. App. 740 (1982) defendant performed reconstructive breast surgery on the plaintiff. Shortly after surgery he injected saline into the implants to improve the appearance of her breasts. He told plaintiff that the implants were self sealing when she inquired about the possibility of leakage. The court found that defendant’s subsequent conduct in repeating the injections raise an inference of fraud, even if he initially believed that leakage would not occur. The court stated that concealment per se amounts to actual fraud when for any reason one party has a right to expect full communication of the facts from another.

Knowledge of the misrepresentation

to toll the statute based on fraud plaintiff must show that defendant knew that the misrepresentation was false at the time he made it. Simply alleging fraud based on a misdiagnosis followed by continued treatment is in sufficient.

The deterrence requirement

To toll the statute by fraud plaintiff must show that defendant’s actions deterred him from discovering his true medical condition. It is not sufficient that defendant made misrepresentations, plaintiff must of been deterred from seeking further medical help because of such misrepresentations.

The deterrence requirement

To toll the statute by fraud plaintiff must show that defendant’s actions deterred him from discovering his true medical condition. It is not sufficient that defendant made misrepresentations, plaintiff must of been deterred from seeking further medical help because of such misrepresentations.

Once the patient seeks the help of another doctor who informs the patient of the medical problems, the patient is no longer deterred from discovering the fraud. If the patient seeks a 2^nd opinion from another physician, that generally stops the tolling effect of the fraud. The same result occurs when plaintiff ceases going to the original doctor for treatment and is accepted as a patient by another physician. Moreover, once a defendant doctor discloses the existence of medical complications, even if defendant has misdiagnosed those complications, plaintiff is no longer deterred from learning the true facts. The court will look at plaintiff’s conduct in reviewing fraud issues. The evidence may show that repeated recurrence of symptoms put plaintiff on notice of the problem. Communications by plaintiff to defendant may also show a lack of deterrence when plaintiff expresses dissatisfaction with defendants care before the statute expires. Hendricks v. squeaking ghost, 183 Ga. App. 201, 1987. When plaintiff suspects medical problem and asks his doctor, the doctor’s assurances that plaintiff only suffered from expected complications, like postradiation symptoms, may toll the statute. For example in Lynch v. Waters 179 Ga. App. 222, 1986 plaintiff sued defendants for negligent misdiagnosis of breast cancer. Over the course for treatment, she repeatedly asked her doctors of any work to be done to ensure her good health and was advised repeatedly that she had no cause to worry. Based on their misrepresentations about her condition she refrained from seeking further medical advice. Under these facts the court found an issue of fraud. The plaintiff failed to seek medical treatment based on reliance upon defendant’s misdiagnosis, rather than a knowing misrepresentation of plaintiff’s medical condition, the statute of limitations will not be tolled. Whether the defendant knew about plaintiff’s condition and knowingly misrepresented it, whether plaintiff justifiably relied on defendant’s misdiagnosis, or whether plaintiff failed to exercise ordinary care for her own safety are generally questions for the jury. Plaintiff has the burden of proving that defendant fraudulently deterred him from seeking further medical assistance that kept him from discovering defendant’s negligence. The appellate courts will closely scrutinize Plaintiff’s evidence. In Montgomery v. with Ritchie 151 Ga. App. 66, 1979 plaintiff presented evidence that in 1977 her spinal fusion was not solid. The defendant had operated on plaintiff’s back in 1974. The court found that evidence of a failed fusion in 1977 would not support inference that the fusion was not solid in 1974, therefore the statute limitations was not tolled based on defendants’ assurances that surgery was successful and that she should not be concerned about her continuing pain. In Gillis v. Palmer the only evidence of fraud was plaintiff’s testimony that defendant doctor told them that there was no problem. Nothing in the record gave any indication of concealment or any effort to deter the patient’s from seeking further medical help. On the other hand, the patient’s knew that the shots were more painful on the occasion in question and also noticed unusual knots in their hips. Consequently they were on notice of facts sufficient to require them to exercise due diligence in discovering any negligence. Evasion by the treating physician upon direct inquiry by the patient may be sufficient to raise a fact issue on fraud. Concealment of material facts may amount to fraud under such circumstances. OCGA 9-39-71 b imposes a five-year statute of repose on medical malpractice claims that cuts off claims 5 years after the negligent or wrongful act or omission occurred. The rationale for this provision is that due to the uncertainty of aging, health and intervening events, it is reasonable to limit liability for injury or death occurring more than 5 years from the date of medical treatment. Because the statute of repose sets a limit on what is actionable, it cannot generally be tolled. Nevertheless, an exception arises when the injuries in fact occurred during the period of liability, but defendant by fraud concealed such injuries. The doctor cannot deceive the patient for 5 years and assert the statute of repose. The sun never sets on fraud. Lasoya v. Sunay 193 Ga App 814, 1989.

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Fraud by the physician | Atlanta DUI lawyer

As a response to a statute of limitations defense, a plaintiff sometimes asserts that the treating physician misrepresented plaintiff’s condition or the care provided and that plaintiff did not discover this misrepresentation until the statute of limitations had run. To toll the statute, plaintiff must establish essential elements of fraud within the physician-patient relationship or lose on summary judgment. Allegations of negligent treatment, advice and misdiagnosis, even willful negligence are insufficient to raise a question of fact on fraud. Fraud issues are often fact intensive, and the appellate courts will examine the record closely to see if plaintiff has raised and supported a reasonable inference of culpable misrepresentation. Fraudulent conduct by the treating physician will toll the statute of limitations OCGA 9-3-96 states if the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud. It is not enough however for plaintiff to simply prove fraud. Fraud sufficient to toll the statute limitation requires one: actual fraud involving moral turpitude on the part of the defendant 2) the fraud must conceal the cause of action from the plaintiff thereby debarring or deterring the knowing of the cause of action 3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation. Kane v. Shoup 260 Ga. App. 723 2003. Note that plaintiff does not have to prove actual fraud. The plaintiff has the burden of proving facts to establish fraud to toll the statute Edmonds v. Bates 178 Ga. App. 69 (1986). To toll the statute the fraud must involve moral turpitude not mere broken promises, unfulfilled predictions or erroneous conjecture as to future events. Also plaintiff must offer evidence of fraudulent misrepresentation made by each defendant for whom plaintiff seeks to have the statute of limitations tolled. Charter peach 3^rd behavioral health system v. Kohout 233 Ga. App. 452 (1998). The statute is tolled only until the fraud is discovered or should have been discovered unless excused. Plaintiff must exercise ordinary care to discover the fraud, questions about the existence of fraud and plaintiff’s diligence in discovering it are ordinarily jury questions. The plaintiff must do more than make a bare allegation of fraud that is unsupported by the record to raise an issue of fact. The patient physician relationship is a relationship of trust and confidence. The patient with no expertise or training entrusts his  medical condition to the trained physician the patient with no expertise or training entrusts his medical condition to the trained physician. Because of this confidential relationship, an exception arises to the requirement in typical fraud cases that defendant makes some actual misrepresentation. Within the confidential relationship, silence when the doctor should speak or failure to disclose what should be disclosed will constitute fraud as much as an actual misrepresentation. Thus within the doctor-patient relationship plaintiff need not prove actual fraud. Relationship creates a duty that requires a doctor to inform the patient about his condition. Nevertheless there must be evidence that there was an intent to this conceal by silence. Charter peach for behavioral health system v. covert 233 Ga. App. 452 (1998). The Court of Appeals found sufficient evidence of intent to conceal in Quattlebaum v. Co. wort 182 Ga. App. 473 (1987). There defendant did not advise his patient that defendant had failed to connect the left hepatic duct to the small intestine, and in fact prepared misleading and incorrect medical records on this point. This conduct raised a jury question on fraud. The court found a reasonable inference of a knowing concealment and cover up, not just a mere misstatement. Similarly in set live v. Hackney 164 Ga. App. 740 (1982) defendant performed reconstructive breast surgery on the plaintiff. Shortly after surgery he injected saline into the implants to improve the appearance of her breasts. He told plaintiff that the implants were self sealing when she inquired about the possibility of leakage. The court found that defendant’s subsequent conduct in repeating the injections raise an inference of fraud, even if he initially believed that leakage would not occur. The court stated that concealment per se amounts to actual fraud when for any reason one party has a right to expect full communication of the facts from another.Contact an Atlanta DUI lawyer today about your case.

Obtaining a tolling because of incapacity | Atlanta lawyer

To toll the statute limitations for disability, plaintiff must take a number of steps involving the medical records. OCGA 9-3-97.1. Plaintiff must request a copy the medical records for the patient's medical treatment from any health care provider having such records by certified or registered mail, return receipt requested. If the request is made by a patient's attorney, the request should include a proper medical authorization to record. The request must reflect of the records reviewed by an injured person for a possible medical malpractice. If plaintiff filed a suit in reliance upon this provision to toll the statute a limitation, the complaint must reflect such reliance in OCGA 9-3-97.1 and have attached as exhibits copies of the request, the medical release, and the evidence of mailing. No. Limitation will be tolled for more than 90 days except under this provision.Contact in Atlanta DUI lawyer today.

Statute of repose for incompetent persons | Atlanta DUI lawyer

Exceptions and disabilities

OCGA 9-3-90 generally protects minors and persons legally incompetent because of mental retardation or mental illness or such when the cause of action accrues.. Mental incapacity tolls the statute is the unsound mind that renders the plaintiff incapable of acting for himself or herself in order to carry on her business, to undertake or maintain a suit for the recovery of the property, to prosecute her claim, and to manage the ordinary affairs of life. Charter peach for behavioral health system 233 Ga. App. 452 (1998). Whether one did not manage his own affairs or whether he managed them unsuccessfully or badly does not control the test for mental incapacity. The test is one of capacity whether the individual been of unsound mind could not manage the ordinary affairs of his life see Kumar v. Hall, 262 Ga. 639 (1992). Dowling v. Lopez, 211 Ga. App. 578 (1993). OCGA 9-3-73 specifically controls the application of disabilities and exceptions applicable specifically to medical malpractice cases. The exceptions delineated by subsection B and C specifically, the general application of OCGA 9-3-90 in medical malpractice cases. OCGA 9-3-73 B states: notwithstanding article 5 of this chapter, all persons who are legally incompetent because of mental retardation or mental illness and all minors who obtain the age of 5 years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of 5 years shall have 2 years from the date of such minors 5th birthday within which to bring a medical malpractice action if the cause of action arose before such minor attains the age of 5 years. OCGA 9-3-73 B.Consequently, persons who are legally incompetent because of mental retardation or mental illness and persons over 5 years of age are subject to the applicable statute of limitations for medical malpractice claims. A minor who has not reached age 5 at the time the cause of action arises has 2 years from his 5th birthday to file the action. OCGA 9-3-73 see further restricts the statute of limitations to practice cases and states-

Notwithstanding subsection a and B of this code section, in no event may an action for medical malpractice be brought by or on behalf of a person who is legally incompetent because of mental retardation or mental illness more than 5 years after the date on which negligent or wrongful act or omission occurred. Or after 5 years from the date on which the negligent or wrongful act or omission occurred if such miner was age 5 or older on the date of such act or omission. This provision imposes a statute of repose for legally incompetent persons, 9-3-73D.Contact an Atlanta lawyer today for help with your case.

Medical malpractice case | Atlanta DUI lawyer

Fixed or foreign object?

The two-year statute of limitation pursuant to OCGA 9-3-71 does not apply in cases where a physician leaves a foreign object in the patient’s body. OCGA 9-3-72 states a foreign object statute of limitation: the limitation code section OCGA 9-3-W1 shall not apply where foreign object has been left in a patient’s body, but in such a case action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purpose of this code section, the term foreign object shall not include a chemical compound fixation device, or prosthetic aid or device. In such case the plaintiff must bring the action within one year discovery of the negligent or wrongful act or omission. The code sections specifically excludes a chemical compound, fixation device, or prosthetic aid or device as a foreign body. The statute of repose stated in OCGA 9-3-71 does not apply in a foreign object case and will not bar a case brought under the statute of limitations, even if the case is filed more than 5 years after the negligent act. A band v. Klotz to 43 Ga. App. 271 (2000). Under this section, discovery means the time at which plaintiff actually learns of the negligence or could have learned of it by the exercise of ordinary care. Childers v. Tauber  148 Ga. App. 157 (1978).

Although OCGA 9-3-72 specifically excludes chemical compounds and certain fixation and prosthetic devices from its purview, it does not define a foreign object. Recent decisions on this issue provide helpful guidelines in determining when to apply the one-year statute. A bulldog clamp is not a fixation device because its purpose is to temporary occlude an artery during surgery. Unlike certain devices such as pins and sutures that are designed to remain in the body a bulldog clamp should be removed before completing the surgery, therefore, is a foreign object. A suture even though ordinarily considered a fixation device, will come under the foreign object limitation if placed and left in the wrong part of the patient’s body. A surgical sponge and a steel arterial clamp are foreign objects because they should be removed before completing surgery. A dental file and a broken drill bit are foreign objects. A dental bridge is not a foreign object because it comes under the exclusion covering fixation or prosthetic devices. The failure to find and remove a foreign object like a piece of metal from a cutting tool or pieces surrounding face that entered plaintiff’s body as a result of some injury does not, under the one-year rule. In both examples the objects were not left by some deliberate act of the physician in treating the patient, rather he failed to find the object and remove it, which amounts to simple misdiagnosis and mistreatment. Defendants’ failure to inform patient of the foreign object does not raise a separate cause of action, nor does fraud or misrepresentation claims condition related to the foreign object. Fraud would toll the statute of limitations until discovery of the object. Upon discovery, the statute begins to run. Defendant broke off a piece of dental file in plaintiff’s mouth during a root canal. Plaintiff returned the next day, and defendant supposedly take care of the problem. 9 months later plaintiff consulted with another dentist who found the file still embedded in the tooth. Plaintiff filed a complaint over one year from the time of this discovery. Denial of defendant’s motion for summary judgment was reversed. Even if misrepresentation occurred, plaintiff discovered the existence of the file still embedded in her tooth from another doctor. The statute a limitation was only told up to the point that plaintiff discovered the problem with her tooth from another doctor. In Ballard v. Rappaport 168 Ga. App. 671 (1983), plaintiff filed a claim alleging negligent surgery. Her amended complaint specifically alleged that the contract claim did not arise out of the care and treatment provided by defendant as a medical doctor. The medical malpractice claim was dismissed, but the court liberally construed plaintiff’s complaint and reverse the trial court’s grant of summary judgment on the contract claim would affirm the grant of the malpractice claim. The plaintiff’s complaint provided no factual basis for the breach of contract claim.Contact an Atlanta lawyer today for help with medical malpractice case or any case you may have.

Statute of repose | Atlanta lawyer

The statute of repose imposes an absolute limit on the time within which an action may be brought. An exception to this rule applies when a plaintiff has filed a medical malpractice action within the statute limitation in the statute of repose and later amends the complaint to add a wrongful death claim after the patient dies. This assumes that the death arose out of the same negligent conduct as alleged in the original complaint for medical malpractice. To complement the two-year statute of limitations the Gen. Assembly enacted a 5 year statute of repose. OCGA 9-3-71 the State: notwithstanding subsection a of this code section, in no event may an action for medical malpractice be brought more than 5 years after the date on which the negligent or wrongful act or omission occurred. OCGA 9-3-71 see explained that subsection B creates a five-year statute ultimate repose and abrogation. The statute of repose cuts off a medical malpractice claim 5 years after the date of the negligent act unless the plaintiff filed suit within that period. The statute ultimate repose does not bar a cause of action from being brought, which is a defense to the merits that can be waived, but abrogates any cause of action so that no cause of action continues to exist; thus, the cause of action ceases to exist in law after the 5 years had passed. As a consequence statute ultimate repose delineate the time period in which a right may accrue. Likewise even if the injuries arising from the negligent acts occurred less than 5 years before the suit was filed within 2 years of the statute of limitations, statute of repose cuts off all claims filed more than 5 years after the date of the last negligent or wrongful act or omission. Although a timely filed complaint will prevent the statute of repose from attaching, a voluntary dismissal after 5 years brings the statute of repose back into effect, and the case cannot be refiled. This is different from the statute of limitations. If the complaint is filed within the statute of limitations, dismissed pursuant to OCGA 9-11-41 a, and then refiled after the two-year statute of limitations would have run, the case will stand on its original footing and not be cut off. Wright v. Robinson 262 Georgia 844. 1993. Also, amending the complaint to add the real party plaintiff after the five-year statute repose is run but when the complaint was properly filed will not bar the amendment. This statute does not cut off actions for contribution from tortfeasors in medical malpractice actions. The statute of repose can also be the basis for granting a motion in limine to cut off a medical providers negligent acts that occurred outside of the five-year limitation period. Furthermore the statute of repose applies to medical claims for battery and negligent hiring, negligent retention negligent supervision, and negligent entrustment. The statute repose stated in OCGA 9-3-71 however does not apply in a foreign object case and will not bar a case brought within the one-year statute of limitations even if the case is filed more than 5 years after the negligent act. Actual fraud in concealing tortious injury by a physician to avoid suit will equitably estop the raising of the statute of repose by such defendant. The plaintiff must prove the doctor’s intent to keep the patient from discovering the injury to equitably estop the statute of repose. Osborne v. Goldman to269 Ga. App. 303 (2004). In this case plaintiff failed to prove defendant fraudulently withheld information from the patient.

The two-year statute of limitation pursuant to OCGA 9-3-71 does not apply in cases where a physician leaves a foreign object in the patient’s body. OCGA 9-3-72 states a foreign object statute of limitation: the limitation code section OCGA 9-3-W1 shall not apply where foreign object has been left in a patient’s body, but in such a case action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purpose of this code section, the term foreign object shall not include a chemical compound fixation device, or prosthetic aid or device. In such case the plaintiff must bring the action within one year discovery of the negligent or wrongful act or omission. The code sections specifically excludes a chemical compound, fixation device, or prosthetic aid or device as a foreign body. The statute of repose stated in OCGA 9-3-71 does not apply in a foreign object case and will not bar a case brought under the statute of limitations, even if the case is filed more than 5 years after the negligent act. A band v. Klotz to 43 Ga. App. 271 (2000). Under this section, discovery means the time at which plaintiff actually learns of the negligence or could have learned of it by the exercise of ordinary care. Childers v. Tauber  148 Ga. App. 157 (1978).

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