Physician Lawsuits Increase After Initial Suit

Physician Lawsuits Increase

Doctors who get sued once for malpractice are likely to be sued again. The more times a doctor is sued and the more times he pays out, the more likely it is to happen again. A vigorous and strong defense in a malpractice case is the only way to halt the financial hemorrhaging.

Strong defense is best protection in today's litigious society.

If a doctor is sued once and loses, his chances of being sued again go up. If he loses two cases, the chances rise yet again.

It gets worse. The more times a physician is sued for malpractice and loses, the more he's likely to face more challenges. The New England Journal of Medicine just published a comprehensive report studying the prevalence of malpractice lawsuits.

It's not encouraging news.

"Approximately 1% of all physicians accounted for 32% of paid claims. Among physicians with paid claims, 84% incurred only one during the study period (accounting for 68% of all paid claims), 16% had at least two paid claims (accounting for 32% of the claims), and 4% had at least three paid claims (accounting for 12% of the claims). In adjusted analyses, the risk of recurrence increased with the number of previous paid claims," the report's synopsis states.

A report in the New York Times puts it slightly differently: "A doctor who had two paid claims was twice as likely to have another as a doctor who had one, and a doctor who had six or more paid claims was 12 times as likely to have another."

The Times blog and the NEJM report point a finger at doctors. "...[D]octors who accumulate multiple claims are a problem, and a threat to the health care system. Identifying these high-risk doctors is a key first step toward doing something about the problem," said study co-author David M. Studdert.

Are doctors the problem or is the real problem opportunistic lawyers who see easy targets?

I believe doctors who don't mount an adequate defense against malpractice cases make the problem worse. The study says more lawsuits are likely when doctors have to pay out a settlement. If the same study was done and looked at doctors who were sued, but did not pay claims, I believe the results would show future malpractice claims dropped sharply.

Personal injury attorneys are not going to go after doctors if the lawsuit takes a lot of effort. No attorney likes to invest time without being compensated. Such attorneys will go after doctors with a history of paying claims. There are too many easy targets out there, as the NEJM study indicates.

The Times blog says as much: "...[A] doctor who had six or more paid claims was 12 times as likely to have another."

Doctors who mount a vigorous defense to challenge the malpractice claims are less likely to be sued in the future. If you are facing a malpractice case or a challenge to your practice, it is important to consider the ramifications on your state license to practice medicine.

Also, it is important to vigorously defend patient accusations that do not make it to courts of civil claims. If you are contacted by a state licensing board with allegations of any sort, you need someone who can help guide you through the process. With nearly 20 years of experience and countless successful results, contact one of the Atlanta Medicare Fraud Lawyers at Frances Cullen, P.C. so we work together to defend your right to practice medicine.

New DEA Painkiller Rules Have Unintended Consequences

New DEA Painkiller Rules

A new set of federal rules on prescription narcotic painkillers has hit veterans hard. The new restrictions are also putting increased pressure on an already over-burdened Veterans Administration health care system. The net effect- veterans are not getting the care they need and VA doctors will take the blame.

Physicians feeling pressure from two sides after DEA ruling.

Rules created by the federal Drug Enforcement Agency (DEA) for prescription narcotics are making matters worse, instead of better, for some of the people who need these painkillers.

The complete DEA rule is here.

When the federal agency announced the new rules, then-DEA Administrator Michele Leonhart said, "These new regulations will expand the public's options to safely and responsibly dispose of unused or unwanted medications. The new rules will allow for around-the-clock, simple solutions to this ongoing problem. Now everyone can easily play a part in reducing the availability of these potentially dangerous drugs."

The DEA's intent was to slow the rate of prescription painkiller overdose and death in the United States, a nation that some sources report as the world leader in opioid prescription medication abuse. While well intentioned, the new DEA rules have the unintended effect of restricting prescription pain medications for those who suffer from chronic, debilitating pain and depend on narcotics to get through everyday life.

Veterans among those hit hard by new DEA rules

The Washington Post profiled a number of veterans who are being hit especially hard by the DEA rule in a story about the DEA rule. One of those veterans, Craig Schroeder, was seriously injured in Iraq. Since coming home, he relies on opioids to alleviate debilitating pain that would otherwise make it impossible for him to function day-to-day.

But, after the DEA ruling, he could not get his medications because the DEA rules require regular doctor appointments for refills. Delays and other problems at the VA meant it took Schroeder five months to get in to see a physician.

Wounded veterans are just one group of individuals adversely affected by unintended consequences following new DEA rules. Doctors may also face difficulties when attempting to provide medication to patients suffering with chronic pain, as new, shifting DEA requirements may cause prescribers to unintentionally violate DEA rules.

Vigilance is all the more important for medical professionals who base their livelihoods on their ability to prescribe medications. To ensure you comply with DEA regulations and other state and federal rules, or if you are looking for advice on how to comply with the law and your duty as a physician, contact a Healthcare Law Attorney Atlanta at Frances Cullen, P.C. for help.

Court of Appeals Reverses Itself on Lay Witness Opinion of Speed

On July 28, 2015, the Georgia Court of Appeals reversed itself on the issue of whether lay testimony as to speed, based only on the experience of impact, constituted admissible evidence to defeat summary judgment.Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015).

On May 3, 2011, Plaintiffs were driving on Custer Avenue, attempting to cross Moreland Avenue, when they crashed into the front of a DeKalb County fire truck entering the intersection on Moreland Avenue, en route to an emergency call, with lights and sirens activated, and the air horn sounding.

DeKalb County, represented by Levy & Pruett, filed a Motion for Summary Judgment on the grounds that there was no evidence that the firefighters breached any duty or that any alleged breach constituted the proximate cause of this collision. The trial court agreed and entered summary judgment for DeKalb County on April 1, 2014. Plaintiffs then appealed the trial court’s Order. Surprisingly, on June 17, 2015, the Court of Appeals reversed the trial court’s grant of summary judgment because “a genuine issue of material fact exists as to whether the fire truck proceeded past the red signal ‘only after slowing down as may be necessary for safe operation’ OCGA § 40-6-6 (2), and ‘with due regard for the safety of all persons.'” Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015)

Specifically, the Court relied on the Plaintiff passenger’s “guesstimate” that the fire truck was traveling 60-70 mph at the time of impact, based only on how the impact felt, and reasoned that there was a question of fact as to whether the fire truck slowed down before entering the intersection.

On June 25, 2015, we filed a Motion for Reconsideration on behalf of the County, arguing that the Court of Appeals’ opinion that an individual can testify to the speed of a vehicle based only her subjective experience of the collision was without precedent. Moreover, we argued that the Court failed to address the case of Boatner v. Sims, 115 Ga. App. 284 (1967), which specifically found that evidence of speed with nothing more than the witness’s self-serving testimony based on experiencing the impact, was inadmissible.

A month later, on July 28, 2015, the Court of Appeals issued a second opinion granting in full DeKalb County’s Motion for Reconsideration, a rarity in appellate procedure. In a complete reversal, the Court found that Plaintiff’s “testimony that the car was traveling 60 to 70 mph could not be rationally based [only] on her perception of how the impact felt” because she was not an accident reconstructionist and had never before been hit by a car traveling at that speed. Brown v. DeKalb County, et al., A15A0265 and Little et al. v. DeKalb County et al.,A15A0267, 1-9, 7 (Ga. App. July 28, 2015). On reconsideration, the Court of Appeals relied on Boatner v. Sims, emphasizing the lack of a rational link between Plaintiff’s opinion based only on experiencing the impact and the speed of a vehicle she never saw.

Do PHPs Bring More Problems than Solutions for Physicians?

Physician Health Programs (PHPs) are state-based plans for doctors with substance abuse or other mental health problems. Some of these programs are now coming under fire for lack of oversight and regulation, as well as unscrupulous billing and contracting. There are anecdotal reports that a number of physicians have had harrowing interactions with PHPs, leading some to become suicidal.

PHPs were initially established to help physicians struggling with substance abuse or mental health issues by providing them with access to confidential treatment while avoiding professional investigation and potential disciplinary action. However, some practitioners view Physician Health Programs as coercive and abusive of their power, particularly as there are rarely avenues for appeal of PHPs treatment recommendations.

Detractors of the Physician Health Programs system claim physicians who voluntarily disclose they have mental health or drug problem can be forced into treatment without recourse, face expensive contracts, and are frequently sent out of their home state to receive the prescribed therapy. In addition, critics assert that there is no real oversight and regulation of these programs.

The healthcare attorney Atlanta at Frances Cullen, P.C. represent physicians and other healthcare professionals before Physician Health Programs. Contact us immediately if you need assistance.

Read more about Physician Health Programs.

Six Flag $35 Million Verdict: Possible Expansion of Premises Liability

In 2007, Joshua Martin, then nineteen-years-old, was walking with his brother and a friend from Six Flags Over Georgia to a nearby bus stop, when they were brutally attacked, according to the Athens Banner-Herald. Martin was severely injured by one man who allegedly beat him with brass knuckles and put him in a coma for over a week. Although the bus stop was not on Six Flags property, the four males eventually convicted of the attack on Martin were all seasonal Six Flags employees.

In 2009, Martin sued Six Flags, alleging that the park negligently failed to provide adequate security and negligently failed to keep their premises safe. Six Flags Over Ga. II, L.P. v. Martin, 320 Ga. App. 52 (2013). After a nine-day trial and an interlocutory appeal on an apportionment issue, the Cobb County jury awarded Martin $35 million in damages. The jury apportioned 8% of the award to the four assailants, and the remaining 92%, or $32.2 million to Six Flags. “Six Flags Fights $35M Verdict in Attack Near Park,” Daily Report (July 17, 2015).

Six Flags appealed the case based on the fact that the attack did not occur on Six Flags’ property. Oral arguments in front of the Georgia Court of Appeals were held on July 15. The central issue, according to the Daily Report article, was whether Six Flags could be held liable for an off-site injury; specifically, whether the bus stop constituted an “approach” to the property and whether Six Flags took steps to exercise dominion over the bus stop area.

Georgia law describes an approach as “property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended.” Motel Properties v. Miller, 263 Ga. 484, 486 (1993). One exception to this rule is if the landowner has exerted some “positive exercise of dominion” over a public way (or private property), usually referring to a sidewalk or ramp which is directly connected to the approach.

The remarkably high verdict aside, the Appellate Court’s ruling is significant for its potential to extend a landowner’s liability beyond its physical premises and approaches, or the “the last few steps taken by invitees, as opposed to ‘mere pedestrians,’ as they enter or exit the premises,” to include crimes or injuries off its property. Id. at 486. Should the Court uphold Martin’s argument of off-property liability, this decision will have profound impact on all business owners, large and small.

Burden on The Insured/Plaintiff to Prove the at-Fault Driver Was an Uninsured Motorist

The Georgia Supreme Court recently clarified that it is the insured/plaintiff, not the UM carrier, who has the burden of proof as to whether the at-fault driver was in fact an uninsured motorist under the plaintiff’s UM policy. In Travelers Home & Marine Ins. Co. v. Castellanos, Case No. S14G1878, 2015 Ga. LEXIS 350 (Ga. S. Ct., June 1, 2015), the defendant did not appear at trial in the underlying case. After the plaintiff obtained a judgment, the defendant’s liability carrier, United Auto, denied coverage to the defendant based on a failure to cooperate in the defense. The plaintiff then sought payment from Travelers, his UM carrier, and eventually filed suit against Travelers for bad faith refusal to pay a covered loss. Travelers raised the defense that United Auto did not “legally deny” the underlying defendant’s liability coverage and, therefore, the defendant was not an “uninsured motorist” under the policy.

The parties filed cross motions for summary judgment. The trial court granted summary judgment to Travelers, holding the plaintiff had failed to present evidence of a legal denial of coverage by United Auto. On appeal, the Georgia Court of Appeals held the trial court had improperly shifted the burden to the plaintiff to produce evidence that would rebut Travelers’ affirmative defense. The Georgia Supreme Court, in turn, reversed the Court of Appeals and upheld the trial court’s grant of summary judgment to the UM carrier.

The Court held that the plaintiff has the burden of proof to show (1) the existence of the UM policy, and (2) that the at-fault driver was an uninsured motorist. Travelers’ policy defined “uninsured motor vehicle” to include a vehicle which is insured but the insurer “legally denies coverage.” Thus, the plaintiff had the burden to show United Auto’s denial of coverage was “legally sustainable.” To do that, the plaintiff had to establish the same elements an insurer needs to justify a denial of coverage based on non-cooperation: (1) the insurer made a reasonable request for cooperation in defending the case, (2) the insured willfully failed to cooperate, and (3) the failure to cooperate prejudiced the defense.

The Court first noted that the uninsured motorist statutes are remedial and must be broadly construed to provide coverage where possible. The Court also acknowledged the difficulty a plaintiff might have in procuring evidence where he is “a stranger to the relationship between the tortfeasor and its insurer.” The solution-and liability insurers should take note-is for the plaintiff to obtain discovery “from the insurer regarding its efforts to contact its insured and its lack of success in securing cooperation.” Although the Court found a presumption of prejudice resulted from the underlying defendant’s absence from trial, the Court held that the plaintiff had failed to show that the liability insurer had reasonably requested the defendant’s cooperation or that the defendant willfully refused to cooperate. Other than statements in the pleadings, the only evidence presented was an unauthenticated letter from United Auto to its insured stating that it was denying coverage because of his non-cooperation. The Court held this was simply not enough because it said nothing about United Auto’s efforts to contact its insured. The plaintiff failed to meet his burden of proof to show that United Auto had legally denied coverage, and the UM carrier was entitled to summary judgment.

Georgia Supreme Court Weighs in on Discovery Dispute Over Reasonableness of Plaintiff's Medical Bills

Discovery issues rarely reach the Georgia Supreme Court, but in the case of Bowden v. Medical Ctr., Inc., No. S14G1632, *1-25 (June 15, 2015), a discovery dispute centered around a plaintiff’s medical bills merited a 25-page unanimous opinion. Briefly, the case arose from a car accident involving a 21-year-old plaintiff, Danielle Bowden, who was treated at The Medical Center, Inc. (TMC), without health insurance, for a broken leg and subsequently received physical therapy. TMC billed her $21,409.95 for her care and filed a hospital lien for that amount. Bowden sought to invalidate the lien on the grounds that the charges were grossly excessive and did not reflect the reasonable value of the care she received. Enterprise, the insurer of the defendant, tendered its $25,000 limits, but because TMC and Bowden were unable to agree on how to apportion the settlement proceeds, Enterprise filed a complaint in interpleader against both Bowden and TMC. As part of Bowden’s answer to the interpleader action, she filed a cross-claim against TMC. It is against this procedural backdrop that this discovery dispute arises.

Bowden, as part of her cross-claim, requested information from TMC (e.g., pricing agreements with various insurance companies and Medicaid/Medicare; TMC’s total gross revenues, the percentage of patients who paid certain rates, blank forms which reflected contractual service charge agreements, etc.) targeted at proving she was charged more than other patients for similar injuries. TMC objected on the grounds of relevancy. The Georgia Supreme Court disagreed, holding, “where the subject matter of a lawsuit includes the validity and amount of a hospital lien for the reasonable charges for a patient’s care, how much the hospital charged other patients, insured or uninsured, for the same type of care during the same time period is relevant for discovery purposes.” Id. at *2. The Court went on to explain that under Georgia discovery rules, courts must interpret “relevant” broadly, as opposed to the narrower evidentiary standard used at trial, and specifically, that the discovery Bowden sought “may have some relevance to the reasonableness of TMC’s charges for her care.” Id. at *18. In dicta, the Court also rejected the notion that the mere existence of an agreement by a patient to pay hospital charges does not prove that the charges themselves are reasonable.

On a very basic level, this case is merely a reaffirmation of the broad scope of discovery entitled to litigants but it should also help the defense side of the bar access the records of medical financing companies like ML Healthcare. But discovery aside, this case could also have far-reaching, perhaps even unintended ramifications for attacking the reasonableness of medical bills. In the meantime, Defendants might want to use the Bowden decision to argue that plaintiffs have incurred unreasonably excessive medical bills which are not reflective of the value of services provided, in order to gain leverage in settlement negotiations.

Police Reports are Now Admissible as Business Records in Georgia

The Georgia Court of Appeals has recently decided that the statements contained within a police report are admissible as a business record, even without the officer’s personal testimony. Maloof v. MARTA, 330 Ga. App. 763 (2015). The facts underlying this case are that an elderly woman, who was riding in a wheelchair in a MARTA para-transit bus, fell out of her wheelchair and fractured her leg when the bus came to a sudden stop. Although she died a few months later, her Estate sued MARTA for negligence. MARTA introduced the police accident report as part of its case. Plaintiff objected on the grounds that the report contained inadmissible hearsay-namely the police officer’s statements.

Surprisingly, the Court of Appeals reversed course and allowed the officer’s statements into evidence. Specifically, the Court in Maloof found that as long as the statements contained in the report were observations made by the officer him or herself, the report was admissible.

Opinions or observations of witnesses contained in the accident report, for example, an eyewitness who tells the officer that the defendant ran the red light, still constitute inadmissible hearsay. However, anything contained in the report that constitutes a personal observation of the officer, for example, whether he or she observed skid marks, the weather conditions, etc. will now be admissible even if the officer is not present in Court.

The Maloof decision appears to cut both ways. It is now easier for parties to introduce police accident reports into evidence as business records. Practically speaking, however, these reports often contain errors that will need to be corrected by the party opposing its admissibility and the investigating officer may still be subpoenaed to appear and defend the report.

When an Uninsured Motorist Carrier Answers in its Own Name, it Must Do So Within the Time Provided or Risk Default Judgment

It is established law in Georgia that when an insurance company is served with a complaint as the plaintiff’s uninsured motorist carrier, the carrier has the option of answering in the name of the defendant, answering in its own name (and raising policy defenses), or filing no answer at all. The Georgia Court of Appeals recently held these options do not give the UM carrier the right to disregard the time requirements of the Civil Practice Act when the carrier voluntarily enters the case by filing an answer in its own name. Kelly v. Harris, Case No. A14A1004, 2014 Ga. App. LEXIS 776 (Ga. Ct. App., Nov. 18, 2014).

In Kelly, the plaintiff sued the defendant for damages arising from an auto accident, and the plaintiff served GEICO as his uninsured motorist carrier pursuant to O.C.G.A. § 33-7-11(d). Service was perfected on GEICO on November 5, 2012. GEICO chose to answer in its own name, raising the policy defense of late notice, but filed the answer on February 14, 2013–101 days after service of the complaint. The plaintiff moved for default judgment against GEICO. The trial court denied the plaintiff’s motion. The Court of Appeals reversed and remanded the case to determine whether the default should stand.

The Court first corrected a “typographical error” in Lewis v. Waller, 282 Ga. App. 8 (2006), a case relied on by GEICO and cited by the trial court. In Lewis, the opinion stated that when the UM carrier answers in its own name, its answer is timely “if filed within 30 days from service of the answer and complaint upon the UMC.” The trial court in Kelly ruled that this meant GEICO timely filed its answer within 30 days of the defendant’s answer. The Court of Appeals held, however, the Lewis opinion should have read “summons and complaint,” not “answer and complaint.” Thus, the thirty day deadline begins to run at the time of service of the summons and complaint on the UM carrier.

The Court rejected the argument that the “flexibility” of the Uninsured Motorist Act, including the option of filing no answer at all, allowed the UM carrier to file a late answer. The Court agreed that the statute allowed the option of joining the action, but found no authority “remotely suggesting that once a [uninsured motorist carrier]voluntarily becomes a party to a lawsuit it is exempt from fully complying with the dictates of the Civil Practice Act.” Thus, the Court flatly rejected the notion that a UM carrier can never be found in default.

According to Statue, a Plaintiff May Seek UM Coverage Without Exhausting All Available Liability Coverage

In Wade v. Allstate Fire & Cas. Co., Case No. A13A0827 (Ga. Ct. App., Nov. 6, 2013) the plaintiff was injured in a multi-vehicle accident and sued the three other drivers involved (as well as one driver’s employer under respondeat superior, and another driver’s mother under the family purpose doctrine). He also served Allstate as his uninsured motorist insurance carrier. The plaintiff reached a partial settlement with two of the defendants for their liability policy limit, and signed a limited release so that he could pursue any other insurance coverage. The plaintiff then settled with the other defendants for an amount less than the total of their liability policy limits, signed a general release, and dismissed these defendants with prejudice. Arguing that the plaintiff was not entitled to uninsured motorist coverage because he had not exhausted the liability limits available to all of the defendants, Allstate moved for summary judgment. The trial court granted the motion, but the Court of Appeals reversed.

The Court held that, under the terms of the UM policy, Allstate did not have to pay until all applicable liability limits had been exhausted, but the applicable limits could not be determined until there was an apportionment of damages among the defendants pursuant to O.C.G.A. § 51-12-33. The two defendants who had reached a partial settlement were still in the case, pursuant to the limited release, so that the plaintiff could pursue UM coverage. Under the apportionment statute, these defendants’ share of the plaintiff’s damages might exceed the limits of their liability coverage, and, therefore, these two defendants would be underinsured, and the plaintiff could recover the excess amount from Allstate. The Court noted that evaluating each tortfeasor’s liability coverage “in conjunction with his apportionment of fault squares with the intent of the UM statute,” that is, “to protect innocent victims from the negligence of irresponsible drivers,” and to “protect the insured as to his actual loss, within the limits of the policy.” The Court remanded the case for a determination of the plaintiff’s damages and an apportionment of fault.

Thus, in cases where the jury may apportion fault, UM carriers must determine their exposure by applying the percentage of fault of each tortfeasor to the total amount of damages, and factoring in the limit of each liability policy individually. In other words, with apportionment, the total amount of all available liability coverage is irrelevant. A plaintiff does not have to exhaust all liability coverage to seek UM coverage based on any one tortfeasor’s liability.