medical malpractice Tag Archives - Atlanta Injury Lawyer Blog

Would Frozen Embryos Be Considered “Unborn Children” in Georgia? You Bet They Would

March 12, 2024 | Robin Frazer Clark

By now we have all heard of the Alabama Supreme Court decision holding that frozen embryos are “unborn children” under Alabama State Law. This was the holding in LePage v. Center for Reproductive Medicine, issued on February 16, 2024. Although much hay was made out of a concurring opinion that quoted the Bible extensively, the primary opinion was based squarely on Alabama State Law only, specifically the Alabama Wrongful Death of a Minor Act. You can read the full, actual opinion here.

In LePage, three couples had their frozen embryos destroyed in an incident at a fertility clinic. The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples paid to keep other embryos frozen in a storage facility at the Mobile Infirmary Medical Center. A patient in 2020 wandered into the area and removed several embryos, dropping them on the floor and “killing them.”

The justices ruled that wrongful death lawsuits by the couples could proceed. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.””Nothing about the [Wrongful Death] Act narrows that definition to unborn children who are physically “in utero.”

Women: Consider Switching to Women Doctors

February 28, 2022 | Robin Frazer Clark

My eye caught an interesting recent study that are 32% more likely to die when operated on by a male surgeon. This really shocked me. If this is true, what could possibly explain this?

This study was conducted in the United Kingdom, but recently published in the Journal of American Medical Association (JAMA). “In our 1.3 million patient sample involving nearly 3,000 surgeons we found that female patients treated by male surgeons had 15% greater odds of worse outcomes than female patients treated by female surgeons,” said Dr Angela Jerath, an associate professor and clinical epidemiologist at the University of Toronto in Canada and a co-author of the findings. For each of the 1.3 million operations studied, they analyzed the sex of each patient and details of how their procedure had gone and also the sex of the surgeon who carried it out. They found that men who had an operation had the same outcomes regardless of whether their surgeon was male or female. Women, however, experienced better outcomes if the procedure had been performed by a female surgeon compared with a male surgeon. There were no gender differences in how surgery went for either men or women operated on by a female surgeon. They found that men who had an operation had the same outcomes regardless of whether their surgeon was male or female. Jerath added that while “there are some excellent male surgeons who consistently have good outcomes, what is concerning is that this analysis does signal some real difference among male and female surgeons overall where practice can impact general patient outcomes”.

The answer can’t be that medical training is different for male and female medical students. They get the same training. So why the difference in surgical outcomes? Dr. Jerath posited “Implicit sex biases”, in which surgeons “act on subconscious, deeply ingrained biases, stereotypes and attitudes”, may be one possible explanation. Differences in men’s and women’s communication and interpersonal skills evident in surgeons’ discussions with patients before the operation takes place may also be a factor, she added. And “differences between male and female physician work style, decision-making and judgment”. The findings build upon existing literature that has found that a doctor’s gender identity can impact the care patients receive, particularly if the doctor and patient share identities (this is described among researchers as “gender concordance”).

DeKalb Jury Returns Verdict of $2.35 Million in Medical Malpractice Wrongful Death Trial

October 4, 2019 | Robin Frazer Clark

I am proud to report that after a three week, hard-fought trial in DeKalb County State Court, a jury returned a verdict in favor of my client for $2.35 Million in a medical malpractice wrongful death case. I will blog more about this shortly, but wanted to share with my followers the Daily Report’s article first. More to come later. My client and I are proud of the jury’s courage and wisdom. Their verdict is one of Justice and the collective conscience of DeKalb County.

Jury Hits Emory Clinic With $2.3M Med-Mal Verdict in Elderly Woman’s Death

Plaintiffs attorney Robin Frazer Clark said the defendants never offered anything to settle the case, which ended with the jury clearing three of four health care providers of negligence.

No Such Thing as an Unbiased Expert

May 4, 2017 | Robin Frazer Clark

You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court recently heard oral arguments in McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State. Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams. The issue presented to the Supreme Court in McWilliams was this: “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”

This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion. Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered. As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty. Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases. I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.” In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.” Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!). What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit. Not so for plaintiffs. Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works. As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive. Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.

Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses:

DeKalb County Jury Returns $3 Million Verdict Today Against DeKalb Medical Center

February 3, 2017 | Robin Frazer Clark

Today, a DeKalb County jury returned a verdict against two nurses who are employees of DeKalb Medical Center in the amount of $3.012 Million. The case is Edwards v. Nicome, et al., 11A36121. filed in the DeKalb County State Court. The case centered around the May 2009 death of Shari Edwards, age 31, who died of heart failure three days after being admitted to DeKalb Medical for preeclampsia and ultimately giving birth to her daughter. A third defendant, a physician, was not held liable by the jury. Congratulations go out to Plaintiff’s attorneys Bill Atkins, Rod Edmund and Keith Lindsay for what was obviously a valiant fight for justice in a three week trial. The case was defended by a trial attorney who I have tried a case against before, Tim Bendin. Bendin and his law firm often represents DeKalb Medical Center in personal injury cases. Because the nurses who were found to be at fault are employees of DeKalb Medical Center, DeKalb Medical Center is responsible for the verdict.

The plaintiffs, the parents of the deceased Ms. Edwards, argued their daughter died because of peripartum cardiomyopathy, or heart failure, and the failure of her healthcare team, including Defendant physician Nicome and nurses Cox and Huber-Smith, to detect or treat her deteriorating condition. The evidence showed Edwards’ blood pressure problems had initially been treated, but in the hours before her death her condition became more precarious with low oxygen levels and blood-gas levels joining her complaints that she was short of breath. Despite this, Edmond said medical records showed staff did not take Edwards’ vital signs for three hours before she went into the cardiac arrest that proved fatal. The defense, however, argued Edwards’ condition was stable in the hours before her cardiac arrest, and her healthcare team treated her appropriately throughout her stay, including ordering tests and intervention where necessary. Bendin, the nurses’s attorney, seemingly attempted to cast blame on the attending physician, arguing they were just trying to follow doctor’s orders. This simply didn’t work. No word on whether DeKalb Medical Center will appeal the verdict. They have 30 days from the entry of judgment to do so.

I have often had defense attorneys tell me that doctors and hospitals win 95% of their trials in Georgia. If that is true, to say the odds were against this family and this team of trial lawyers would be an understatement. And $3 Million for the value of the life of a 31 year old could never be characterized of being a “runaway” verdict by any of those who think the Georgia Civil Justice System is out of whack and needs reform. In my opinion, $3 Million for the full value of the life of this mother is probably even slightly conservative. This verdict was a unanimous verdict by 12 DeKalb County citizens who all saw the evidence of negligence the same way, demanding justice in favor of the deceased patient’s family. There is nothing about it that could be labeled “runaway.”

Effort in Georgia To Eliminate Your Seventh Amendment Right to a Jury Trial

February 11, 2015 | Robin Frazer Clark

Did you know there is underway right now an effort in the Georgia Senate to eliminate your Seventh Amendment right to a jury trial in medical malpractice cases? That’s right. A bill has been introduced (again), SB 86, that seeks to eliminate jury trials in medical malpractice claims. This bill was introduced by Senator Brandon Beach from Alpharetta, and this is, at least, the second time around for the bill. Last year the same bill was introduced and a coalition made up of odd bedfellows, the Georgia Trial Lawyers Association (GTLA) and the Medical Association of Georgia (MAG), opposed it and it died a slow death. Like Lazarus, it has now been resurrected.

Supporters of the bill make the wild claim that this bill would reduce so-called “defensive medicine” where doctors supposedly order unnecessary medical tests. I find such a claim outrageous and offensive. Doctors should, likewise, be offended by this strategy. I have talked with many doctors and taken many depositions of doctors. I have never found them to order what they know are unnecessary medical tests. For a doctor to order what he or she knows to be an unnecessary test (and get paid for it, by the way) would be fraudulent and would violate every ethical oath the physician has ever taken. So that cannot be the real issue with this piece of legislation.

Who is behind it? Not the doctors themselves, as evidenced by the opposition of MAG, the doctors’ professional association. Not the citizens of Georgia. There has been no rallying cry that doctors shouldn’t be held accountable as every other citizen may be with he or she commits negligence that results in injury to someone. There have been no “runaway” verdicts in Georgia, either. Statistics show that doctors and hospitals win almost 85%-90% of all medical malpractice trials in Georgia.