Term
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Definition
| Hospital has a duty to exercise reasonable care in protecting a patient from injury as the patient's condition warranges (Emory Univ.) |
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Term
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Definition
| Negligent acts/omissions may be ordinary negligence rather than med mal if the neglig act/omission does not require med judgment - ex: injuries from nurse overestimating his own strength and dropping a patient (Candler Hosp) |
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Term
| Negligent Granting or Retention of Staff Privileges |
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Definition
| Hospital may be liable for indep corp negligence for granting staff privileges to an incompetent/unskilled MD where hospital should have found such deficiencies through exercising ordinary care. (Joiner) |
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Term
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Definition
| Hospital has a duty to exercise ord care in hiring competent personnel. Hospital's failure to train its personnel sounds in ord negligence whereas vicarious liability for an employee's breach of the standard of care sounds in professional negligence. |
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Term
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Definition
| MD is an agent of hospital if the K so provides. In the absence of a clear K, agency exists if hospital reserves the right to control the time, manner, or method in which the health care professional performs svcs for which licensed, as opposed to the right to merely require certain definite results. Statuts provides numerous factors which may be considered in making the determination, as well as other factors which may not be considered. |
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Term
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Definition
| GA Has not adopted the Capt of the Ship doctrine, but has adopted the Loaned/Borrowed Servant Doctrine holding MDs liable for neglig to their patients by hospital personnel only if MD had an opportunity to observe the personnels actions and to alter the course of events (Ross). |
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Term
| Apparent Agency v. respondent superior |
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Definition
| Hosp in addition to haveing master-servant liab, may also be liable under the apparent agency doctrine where the hospital furnishes a MD as its own and calls upon patient to accept the svcs based on hosp reputation rather than MDs. Where it applies, apparent agency steps into the patient's shoes and looks at 2 issues 1) Did the hospital hold itself out and 2) Did patient reasonably rely? This is alleged frequently for ER docs and radiologists. |
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Term
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Definition
| Hospital would not be liable for the negligent acts of its employee or of an indep contractor occuring under a surgeon's immediate supervision (Miller- hospital surgery tech was under MD supervision at time of negligence). But the hospital may be liable for how its employees carries out a MD orders (Porter- MD ordered incubator but was absent when nurse allowed infant's foot to touch hot light bulb). |
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Term
| Near Death of Apparent Agency |
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Definition
| Even if patient does not see, read, or understand provisions, a sign with 1" letters posted in conspicuous place or piece of paper signed by patient explaining that these are indep contractors who may care for patient insulates the hosp from apparent agency claims (OCGA 51-2-5.1) |
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Term
| Emergency Care at the hospital |
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Definition
| Patients injured during emergency care in ER/obstetrical unit or in operating unity after initial presentation to the ER, must prove gross negligence by clear and convincing evid. The heightened standard disappears if the harm is done after the patient is stabilized enough not to be in the ER any longer. |
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Term
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Definition
| Under GA law " gross negligence' means that absence of even slight diligence- the Defendant fails to act w/ that degree of care which every person of common sense, no matter how inattentive he/she may be, would exercise under the circumstances or would exercise toward his/her own property. |
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Term
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Definition
| If they receie no remuneration whatsoever (including Medicaid), those working for licensed ambulance service who in good faith renders emergency care to the victim of an accident or emergency have immunity. MD advisors are immune unless willful/wanton. |
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Term
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Definition
| Under OCGA 51-1-29, immunity provided for any person who in good faith renders emergency care at scene of accident or emergency w/o making any charge thereafter. Good sam Immunity can apply when svcs rendered beyond the confines of the accident scene. Statute directed at persons including MDs, who by change and on irregular basis came upon/called up to render Emergency care. If the MD has a duty to attend to the emergency (being on staff at facility/having doctor patient relationship), then Good Sam Immunity will not apply. |
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Term
| Voluntary health care providers |
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Definition
| Health care provider who provides professional svcs on behalf of hospital, public school, non profit, or the state voluntarily and w/o expecting to receive compensation cant be held liable except for gross negligence or willful/wanton misconduct. |
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Term
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Definition
| There is immunity to anyone working in coordination and under the direction of a state agency who voluntarily and w/o compensation provides goods/svcs in anticipation or in response to a natural/man-made emergency, if that person was acting in good faith and was not willful/wanton |
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Term
| Automatic External Defibrillator (AED) |
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Definition
| Unless willful/wanton law people who use AED on a non-objecting victim, owners of premises where an AED is available, and anyone whotrains others in the use of AEDs have immunity. A licensed professional if that situation can be liable for gross negligence. Product manufacturers still have liability for defects and failure to warn |
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Term
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Definition
| A free clinic serving the indigent uninsured who are not eligible for Medicare/aid and its staff are not liable for ordinary negligence, even if the clinic is run by a hospital which charges its regular patients. |
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Term
| No hospital authority sovereign immunity |
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Definition
| Hospital authority is business corp authorized to purchase insurance and to satisfy judgments without affecting stability of the state treasury and is therefore not entitled to sovereign immunity defense (Thomas). Hospital authority is not reqd to pay punitives even if there is insurance to cover punitives. |
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Term
| Charitable Hospital Immunity |
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Definition
| Hospital primarily maintained as charitable institution is not liable to patients who do not have to pay tehir bull fully for negligence of officers/employees unless it fails to exercise ordinary care in selecting competent officer & servants or fails to exercise ord care in retaining officers/ employees. There are 3 exceptions to this immunity. 1)charitable hospital must exercise ordinary care in selecting &retaining officers, employees and must furnish adequate staff (Ponder) 2) charitable hospital would be liable to fully paying patient (Wynn) 3)charitable hospital liable to extent that it has liability ins coverage |
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Term
| Private MD at Charitable Hospital |
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Definition
| MDs who are not employed by the charitable hospital directly but are on staff cant claim the charitable immunity defense (Cutts). But private Mds who contract to provide svcs to low income patients on behald of the satte have official immunity if they meet the reqmts. (OCGA 31-8-191) |
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Term
| No sovereign immunity for state-employed Mds paid by patient |
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Definition
| State employed MD is not is not immuned fr suit by private pay patient. The obligations of diagnosis and treatment are a function of med judgment and are btw MD and patient, not btw state and patient (Kennan). But an on call member of pulmonology svc at Med College of GA was immune from suit brought on behalf of child who had Medicaid. Treatment was given in course of MDs job as state- employed MD and involved allocation of govt resources (Medicaid) (Edwards). |
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Term
| Youth Detention Center Sovereign Immunity |
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Definition
| Where personnel at state youth detention facility, including nursing staff, delayed treatment and calling 911, the decisions were discretionary and claim was barred by sovereign immunity (Edwards). |
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Term
| Jail MD can be liable under 42 USC 1983 |
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Definition
| MD delaying treatment while inmate is seriously ill b/c personnel do not what is wrong w/ the inmate can constitute deliberate indifference in viol of the 8th Amendment. Ignorance is not bliss otherwise a premium would be placed upon ignorance to escape liability when illness is not diagnosed and sufferer is allowed to slowly die w/o proper diagnosis/treatment. (Howard) |
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Term
| Defenses: Lack of Negligence |
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Definition
| MD lived up to standard of care |
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Term
| Defense: Contrib/Comparative Negligence |
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Definition
| Basic tort concepts apply to med mal, including contributory and comparative negligence, although facts usually do not give rise to these defenses. They may be applicable when patient's failure to follow MD directions or accurate/full med history. |
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Term
| Defenses: Even if reassured by MD, not taking symptoms seriously can be contrib negligence |
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Definition
| It is not error to charge the jury on contributory negligence when a patient having been told by MD that headaches are normal phenomenon for pregnancy, does not report the continuation of headaches (Timmons) |
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Term
| Defenses: Antecedent Negligence |
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Definition
| Plaintiffs negligence causing injury/condition which Defendant is treating when alleged malpractice occurs is not a defense (Overstreet) |
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Term
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Definition
| Immunities to healthcare workers in certain situations |
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Term
| Defense: Heightened Stand |
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Definition
| Certain classes of healthcare workers sometimes enjoy height burden of proof (clear and convincing evidence of gross negligence in ER) |
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Term
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Definition
Signed by the one holding medical pwr of atty may not be enforceable (Life Care Centers). But if it applies, Fed Arbitration Act preempts OCGA 9-9-62 which forbids before the negligence arbitration clauses in medical malpractice setting. Therefore, one holding a general pwr of atty who signs an arbitration agreement at the time patient is admitted to nursing home w/ ties to interstate commerce made arbitration compulsory (Triad Health Mgmt of GA)
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Term
| Changes to Joint Liability |
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Definition
| For all tort cases arising after 2/15/2005, each defendan oays only his/her proportionate share of the injury after discount for any contributory fault by plaintiff. If fault of non-parties can be considered, thereby potentially reducing the amt of the total damages that present defendant must pay, if either non- party settles with plaintiff or the defense requests such allocation by notice given at least 120 days before trial. (OCGA 51-12-33) |
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Term
| Defense: Possible tension on apportionment |
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Definition
| OCGA 51-12-33d provides that possible fault of non-parties shall be considered if they settle with the plaintiff or are named by the defendants in a notice. However subsection c says the trier of fact shall consider the fault of all persons/entities who contributed to the alleged injury or damages, regardless of whether person/entity was, or could have been named as a party to the suit. |
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Term
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Definition
| Like FRCP 68, GA permits settlement demand/offer to be made as offer to judgment in all tort cases. If offer/demand is refused, refusing party must fare at least 25% better at trial to avoid the penalty. If the refusing party does not do at least 25% better, that party will have to pay the opposing side's attorney's fees and costs from the time of refusal through the end of the case |
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Term
| Caps on Awards (now unconstitutional) |
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Definition
| For all med mal cases, including wrongful death, accruing on/after 2/16/2005, non economic damages are capped. The most the MD and their corps can be made to pay is 350k in noneconomic damages. Facilities each have 350k in noneconomic exposure, w/ limit of 2 facilities per case. (This was ruled unconstitutional in 3/2010). |
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Term
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Definition
| If case against 1 hospital/against any amt of MDs, the cap is 350k. In case with both 1 hospital and any number of Mds as Defendants the cap is 700k. The max cap of 1.05 mill is available only if the case involves 2 or more hospitals as well as many Mds. |
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Term
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Definition
| Damages for pain and suffering, disfigurement, loss of enjoyment of life and the like. |
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Term
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Definition
| Medical expenses, wages/earning capacity, income, funeral/burial expenses, value of svcs performed by injured in absence of injury/death including those domestic and other necessary services performed w/o compensation, and other monetary expenses. |
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Term
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Definition
| Plaintiff required to prove w/ expert testimony and in terms stronger than med possibility (reasonable medical probability/reasonable degree of med certainty) that the negligence caused the alleged harm. Failure to have evidence that meets this standard can lead to summary adjudication (Zwiren) |
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Term
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Definition
| Plaintiff must produce some evidence linking the professional negligence alleged to the injury complained of to a reasonable degree of medical probability or reasonable degree of medical certainty, and failure to do so leads to summary judgment. |
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Term
| Magic words not necessary |
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Definition
| An expert does not have to include "magic words" of "reasonable degree of med certainty" but expert must show that causation opinion is more than mere chance or speculation. There must be realistic assessment of the likelihood that the alleged negligence caused the injury/death (Cannon) |
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Term
| Contribution to harm is enough |
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Definition
| It is not necessary that proper treatment would have averted all detriment to the patient, a med professional may be liable if proper care would lessen the harm (Renz) |
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Term
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Definition
| Plaintiff's expert who will say only that injury may have been the result of negligence will not help the plaintiff survive summary judgment. But an expert may state that the injuries could have been avoided if the expert also states that injuries were proximately caused by the defendant's negligence. (Allen) |
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Term
| Causation in OCGA 91-11-9.1 |
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Definition
| Since Code does not require that the expert include causation opinion in the filing affidavit, a plaintiff's case can be lost if the affidavit expert is unwilling to commit to causation and there is not other expert witness to establish causation. |
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Term
| Limits on Intervening Cause |
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Definition
| If a MD's negligence leads to additional care by another MD, the 1st MD is responsible for harm resulting fr the later care, even if the harm was caused by subsequent MD negligence (Amu). |
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