An error in professional judgment that results in misdiagnosis or mistreatment does not insulate an MD from liability if he/she failed to exercise the requisite degree of skill and care. Word v. Henderson.

An MD may be liable for abandonment if he stops treating a patient at a critical time without sufficient notice for the patient to obtain another competent MD or if the MD fails to provide the patient with a qualified substitute. Pritchard v. Neal

Where med mal results in death, recovery may be had for the full value of the life of decedent without deducting for any necessary or personal expenses of decedent had he lived. O.C.G.A. § 51-4-1 et seq.

P defeated D's MSJ where P's expert testified that while nobody could know exactly how much longer the diseased P would have lived, the active negligence (administration of too much morphine) caused him to die prematurely. Pruette v. Phoebe Putney Mem. Hosp.

An MD who discontinues treatment on a newborn and so accelerates the child's death can be liable for wrongful death. Velez v. Bethune

However, an allegation that the MD failed to provide treatment would have extended the life of a terminally ill P does not amt to wrongful death where P succumbs to her terminal illness. Dowling v. Lopez 

[From class: you don't recover for the loss of a certain % decreased chance that you would have survived. An "on-off switch," not a dimmer].

In a death case, in addition to the statutory representative's wrongful death case, the representative of decedent's estate may recover for:

1. Funeral and burial expenses,
2. Pain and suffering,
3. Lost wages, and
4. Medical bills from the time of malpractice until the time of death

There is no recovery for wrongful birth in GA. The legislature would have to create such a cause of action.

Atl. Ob-Gyn Group v. Abelson (Parents alleged negligence in failure to perform an amniocentesis where there was an increased risk of genetic abnormalities, resulting in a Down Syndrome child. However, Ct indicated that if child became a "destitute adult," there may be recovery for expenses).

Wrongful pregnancy claims

Where there has been a failure to properly perform a sterilization or abortion, recovery may be had for pain and suffering, cost of medical complications related to the delivery, lost wages and consortium.

However, there is no recovery for cost of raising the child.

Fulton-DeKalb Hosp. Auth. v. Graves

Where MD performs a sterilization in compliance with the Code, no liability except for negligent performance of the sterilization. 

Compliance with the Code includes that the MD must give full and reasonable medical explanation as to meaning and consequence of such operation.

O.C.G.A.  § 31-20-1 et seq.

There is recovery for intentional infliction of emotional distress in GA, but not for negligent infliction. But see "Impact Rule"

Greer v. Medders (yelling, screaming, and cursing a convalescing patient).

There can be recovery for negligently inflicted emotional injury only if there was also an "impact," historically equated to a physical injury. Ryckleley v. Callaway.

However, the emotional damages do not always have to flow from the physical injury to P. Lee v. State Farm (mother sought damages for watching her child suffer after incident in which both mother and child were physically impacted).

The undertaking of a patient's care impliedly warrants that a physician possesses the requisite skill and care to treat the patient. A breach of such K is actionable. Bell v. Sigal

The same SOL applies, however, whether the claim sounds in K or tort. Knight v. Sturm

A patient who undergoes a procedure based on inaccurate information from a physician may have a claim for breach of fiduciary duty. Breyne v. Potter

May be awarded in med mal actions if clear and convincing evidence that D's actions were willfull, wanton, or exhibited an entire want of care which would rise to the presumption of conscience difference [conscious indifference?].

Even gross negligence alone does not authorize punitive damages. Punitive damages are capped at $250K unless one can show specific intent to cause harm. O.C.G.A. § 24-9-40 [I think this is nullified by Nestlehutt: http://www.ajc.com/news/georgia-politics-elections/state-high-court-overturns-392119.html]

Doctor can be held individually liable for allowing unqualified employees to give medical opinion/advice. Snider v. Basilio

A doctor-patient relationship is a confidential one, and failure to disclose what should be disclosed can amount to fraud which tolls the SOL.

However, the fraud must be more than a misdiagnosis. Lynch v. Waters

Fraud can consist of willfull misrepresentation of a material fact or reckless representation of facts as true when they are not, made to induce the patient to act, to his detriment (injury). Plane v. Uniforce Mis. Servs. of Ga.

Although there is no patient-physician privilege in GA, patients have a privacy interest in their medical info, and wrongful release of that info can sustain an invasion of privacy claim against the releasing physician. King v. State

However, if that release is made pursuant to law or subpoena or in good faith pursuant to a request for production in a case where P has placed his injuries at issue, that physician is immune. O.C.G.A. § 24-9-40 [was this superceded by the recent Supreme Ct decision??]

If a physician was incompetent and a hospital knew it, or if the incompetency was apparent from facts known to the hospital, the hospital may be liable for the physician's acts. Mitchell County Hosp. v. Joiner

But see O.C.G.A. § 51-2-5.1(b) (for causes of action after 2/15/05): "no hospital which complies with the notice provisions of [this Code section] shall be liable in a tort action for the acts or omissions of a health care professional unless there exists an actual agency or employment reationship btw the hospital and the professional."

From class: the hospital has an affirmative duty to not allow incompetent doctors on its staff. An independent duty to screen.

There is no strict liability against medical practitioners. Jackson v. Miller

A special relationship of control may exist between a mental hospital and a homicidal patient.

Therefore, a doctor's duty may expand beyond the physician/patient relationship, and a duty may arise out of the general duty one owes to all the world not to subject people to unreasonable risk of harm. Bradley Ctr. v. Wessner

A spouse may recover damages for loss of the injured spouse's services, the measure of which in is the enlightened conscience of the jury based on the services, society, companionship, etc. Hamby v. Neur. Assocs.

A cause of action for battery exists when objected-to treatment is performed w/o consent of, or after withdrawal of consent by, the patient. Joiner v. Lee

Where the intentional tort of battery is alleged, P must prove that D intentionally did the touching to which P had not consented.

A filing affidavit is not required for a battery claim.

Newton v. Porter.

A person professing to practice surgery or administration of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Failure to do so can result in tort liability.

"Administrative acts" (acts whose performance require no professional skill, knowledge, or expert experience) do not require a filing affidavit and are based on simple negligence (as opposed to professional negligence) principles-- for ex, where a patient is allowed to fall out of bed and break his hip. Hillhaven v. Patterson.

Hospital employee's installing wrong replacement parts in surgical equipment is an administrative act. Lamb v. Candler Gen. Hosp.

Failure to activate an alarm as MD ordered, failure to carry out instructions, and failure to have appropriate equipment all sound in ordinary negligence. Upson County Hosp. v. Head

The difference is whether professional judgment is required. 

If a fall is a result of a failure to exercise professional care, then a filing affidavit will be required. Holloway v. N'side Hosp.

Where an administrative act, such as incorrectly filing a lab report, contributes to professional negligence, the administrative act still "arises out of" medical malpractice. Stafford-Fox v. Jenkins

Where an occupational therapist left a weakened patient standing in the shower despite documentation in chart that the patient needed maximum supervision while bathing and despite being told by the patient that she was slipping, the claim for injuries from the fall sounds in ordinary negligence. Brown v. Tifton County Hosp. Auth.