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Court Deals Wins on Both Sides of Tort Suits

Plaintiffs win narrow shield on hospital credential process, lose on medical providers’ duty to inform their patients of procedure risks

The Supreme Court of Georgia on Monday gave both members of the medical community and lawyers who sue them something to be happy about—and reason for disappointment.

In a closely watched medical malpractice case, the state high court voted 5-2 to allow plaintiffs access to some of a hospital’s files about one of its doctor’s credentials that hospitals argued were shielded as part of doctors’ peer review processes. In an unrelated, unanimous ruling in favor of a chiropractor, the court limited medical providers’ obligations to inform their patients of the risks of procedures.

The Georgia Trial Lawyers Association had filed briefs supporting the plaintiffs in both cases. Was it a good or bad day for the group? “Yes,” quipped Atlanta lawyer J. Marcus “Marc” Howard, who co-chairs the group’s amicus committee.

In the case about informed consent, the plaintiff claimed he experienced disc problems caused by a neck adjustment performed by the defendant chiropractor. The full Court of Appeals divided 7-5 to find that chiropractors have a duty to inform patients about the risks of procedures.

The Supreme Court unanimously reversed the Court of Appeals ruling, saying there’s no doctrine of informed consent in Georgia beyond that required for particular types of procedures under state statutes.

Writing for the unanimous court, Presiding Justice Carol W. Hunstein noted that her court in a 2000 decision, Albany Urology Clinic v. Cleveland, 272 Ga. 296, already said that a state statute on informed consent, O.C.G.A. § 31-9-6.1, had to be read narrowly. She wrote that there’s no question that chiropractic treatments are not covered by that statute, which requires informed consent for amniocentesis, surgical procedures under certain types of anesthesia and diagnostic procedures involving injection of dye contrast material. Hunstein noted that the Legislature has not been shy about codifying other informed consent requirements, citing statutes in the areas of acupuncture, abortion and mental health.

Hunstein said the court was overruling a 2000 decision of the state Court of Appeals that found that a common law informed consent doctrine applied to dentists.

Joined by Chief Justice Leah Ward Sears, Justice George H. Carley wrote a concurrence saying he was compelled by precedent and respect for the separation of powers to agree with the majority ruling. But, noting he dissented with Hunstein and Justice Hugh P. Thompson from the Albany Urology decision, Carley said he believes the Legislature should adopt a broader informed consent doctrine.

Atlanta lawyer Milton B. “Burt” Satcher III, who argued the chiropractor’s case along with his colleague H. Andrew Owen Jr., said he was very happy for his client, saying the chiropractor refused to offer any monetary settlement and had been vindicated by a jury. Satcher, who was backed by the Medical Association of Georgia, the Georgia Chiropractic Association and other groups, called the case “a victory for the rule of law.”

“Issues like this need to be decided by the Legislature or by the specific boards,” said Satcher, “and that’s exactly what [the Supreme Court] said.”

Satcher said that absent a statute or regulation on informed consent, a plaintiff won’t have a cause of action for failure to obtain informed consent, even if the plaintiff presents evidence that obtaining such consent was part of the standard of care. “It’s not a standard of care issue to be decided by a jury,” he said. “It’s not up to a judge to create a new duty. It’s up to the Legislature or it’s up to the providers’ group.”

Atlanta plaintiff’s lawyer Lyle G. Warshauer, who argued for the plaintiff in the chiropractor case at the Supreme Court, said she was concerned that the Supreme Court’s opinion will insulate medical professionals from suits over failure to get informed consent, even when that’s required by the standard of care within the profession.

“My fear is that … a defendant could say there is no such claim in Georgia, you have not asserted, stated a claim upon which relief can be granted, because Georgia does not recognize a claim for informed consent except for the narrow circumstances within the statute,” said Warshauer.

The informed consent case was Blotner v. Doreika, No. S08G2016.

Although the informed consent decision was a disappointment for plaintiff’s lawyers, they also racked up a victory Monday on the subject of the peer review privilege.

The peer review case involved a Valdosta hospital’s attempt to keep what are called credentialing files out of a plaintiff’s hands. Those sorts of files relate to how a hospital came to give a doctor privileges to perform given procedures at the facility.

In this case, plaintiff Thurman Meeks alleged that the South Georgia Medical Center was negligent in credentialing a doctor to perform cardiac procedures. Meeks is suing the hospital, claiming it should be responsible for the death of his wife after a cardiac catheterization and stent placement procedure was performed by the doctor.

The hospital argued that the credentialing files were covered by Georgia’s peer review and medical review statutes. Those statutes are designed to allow peer review committees to discuss a doctor’s performance with candor.

Carley authored the majority opinion in the plaintiff’s favor. “Unless the credentialing information involves the evaluation of the quality and efficiency of actual medical services,” Carley concluded, “it does not come within the peer and medical review privileges.”

He wrote that application of the state’s peer and medical review statutes to routine credentialing matters is not authorized by the statutes’ language and not necessary to fulfill the statutes’ purpose.

“It is not ‘apparent that a candid evaluation of a physician’s performance will likely necessitate a discussion of’ such credentialing information,” wrote Carley, quoting a 1981 state Supreme Court decision. “Thus, use of the peer review process to protect routine credentialing information would needlessly run the risk of barring a plaintiff’s tort action for negligent credentialing.”

Justice Harold D. Melton wrote a dissent joined by Justice P. Harris Hines. Melton interpreted the statutes to find that the credentialing of doctors is one of the peer review committee functions recognized by the Legislature.

“Rather than applying these statutes in the simple and unambiguous manner in which they are written,” wrote Melton, “the majority employs many unnecessary levels of construction and misconstruction to diminish and limit the absolute embargo both the statutes and our prior cases mandate. If the Legislature had intended for the discovery embargo not to be absolute, it could have said so. It did not, and it is inappropriate for the majority to now impose judicial limitations on statutory laws which have none.”

The winning argument in the credentialing case was made by Caroline Whitehead Herrington, an associate with the firm of Adams, Jordan & Treadwell in Macon. Marc T. Treadwell, a partner at the firm, said if the court had accepted the position urged by the Georgia Hospital Association, that would have dramatically changed the state’s law on peer review. “I don’t think that the holding will change things too terribly much,” said Treadwell.

He said the association wanted the court to declare credentialing files in their entirety immune from discovery. “The net effect of that would be to make it impossible to pursue a negligent credentialing claim,” said Treadwell, who is working on the case with lawyer O. Wayne Ellerbee of Valdosta.

Tifton lawyer Glenn Whitley represents the hospital and said his client denies any liability for the actions of the doctor who performed the procedure at issue in the case. Whitley declined to comment on the legal issue in the Supreme Court appeal, which was argued for the hospital by Walter H. New of Quitman. New couldn’t be reached for comment.

The peer review case is Hospital Authority of Valdosta and Lowndes County v. Meeks, No. S09G0466.

By Alyson M. Palmer , Fulton County Daily Report

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