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After issuing three major medical malpractice decisions recently, the Georgia Supreme Court has taken up two more matters that could affect the practice of medicine. The court recently agreed to settle a dispute over a plaintiff’s burden of proof in medical malpractice cases. The court also will decide whether the American Red Cross can be held liable for distributing blood, which was transfused into a patient, that did not conform to its HIV-screening procedures. The court also has granted the state’s request that it review a Georgia Court of Appeals decision holding that Medicaid fraud prosecutions must be brought in DeKalb County because that is where the state processes its Medicaid bills. Plaintiffs and medical defense lawyers said they saw no specific reason, beyond the luck of the docket, why the court has waded into so many of these cases lately. But they appear no less interested in them. “If there’s not a grand plan, it certainly looks like that,” quipped Thomas S. Carlock, who represents the Medical Association of Georgia and its malpractice insurance company, MAG Mutual Insurance Co. The high court in March struck down an appeals court ruling that effectively had given plaintiffs more time to sue their doctors. The high court unanimously rejected the appeals court’s doctrine of “continuous treatment,” under which the statute of limitations would not start running until the patient had ended his or her treatment with the doctor. Young v. Williams, No. S01G0589 (Sup. Ct. Ga. March 11, 2002). Then, in May, the high court upheld most of a lower court’s decision that said a trial judge in a malpractice case automatically should have disqualified from jury service a nurse who had worked with the doctor-defendant. Kim v. Walls, No. S01C1569 (Sup. Ct. Ga. May 13, 2002). MAG Mutual had supported the doctor, who had won at trial but now must be tried again as a result of the decision. On the same day, the court split 4-3, holding that a medical expert testifying on the appropriate standard of care is not subject to cross-examination as to how he would have treated the patient. Johnson v. Riverdale Anesthesia Associates, No. S01G1138 (Sup. Ct. Ga. May 13, 2002). BURDEN OF PROOF DISPUTE In one of the new matters, set to be heard by the high court in October, MAG, MAG Mutual and the Georgia Hospital Association have filed an amicus brief supporting the doctor-defendant in a dispute over the burden of proof in medical malpractice cases. The high court on June 21 unanimously granted certiorari in the case, Zwiren v. Thompson, No. S02C1063. (Sup. Ct. Ga. June 21, 2002). The case stems from a Gwinnett County, Ga., trial judge’s instruction to a jury on how to decide whether a medical malpractice plaintiff proved her case against a plastic surgeon she claimed botched a breast reduction. The judge said the plaintiff’s medical experts had to show, “within a reasonable degree of medical certainty as proven by a preponderance of the evidence,” that her doctor’s negligence caused her injury. The jury in 2000 ruled for the doctor, but the plaintiff appealed and won a reversal. A panel of Judges Frank M. Eldridge and M. Yvette Miller and Presiding Judge Gary B. Andrews decided that the term “medical probability” should have replaced “medical certainty” because “certainty” was too high a standard. Andrews concurred in the judgment only. Thompson v. Zwiren, No. A01A1931 (Ga. Ct. App. March 12, 2002). BLOOD TRANSFUSION CASE The other case set to be heard by the high court this fall came out of an August 1998 episode in which a woman received a transfusion of blood that all sides now agree never should have been accepted by the Red Cross. The blood came from a man who had lived for 13 months in a region of Africa where a rare, undetectable strain of HIV called “Group O” was known to exist, according to the appeals court decision in the case. As a precaution, the Red Cross did not allow people who had lived in that area of Africa for longer than 12 months to donate blood. The donor had not tested positive for HIV in the five years since he had left Africa and there was no evidence that he had been exposed to the virus. In October 1998, the Red Cross notified the Cartersville, Ga., hospital that administered the transfusion that it had supplied the hospital with blood that did not meet its standards. A doctor informed the patient, 75-year-old Bernice Mantooth, of the mistake in December 1998. Mantooth died in 2001, but there’s no evidence she died of an AIDS-related illness. Lawyers for her estate, Richard L. Brittain and Wendell R. Bird of Atlanta’s Bird & Associates, wrote in court briefs that upon hearing of the Red Cross mistake, “Mrs. Mantooth suffered sleeplessness, anxiety, and drastic changes in her daily habits.” An HIV test was negative, but the lawyers added, “the tests offered no reassurance” because the donor had been in an area where “undetectable” HIV exists. Mantooth spent the rest of her life “in serious fear that she had Group O HIV or AIDS.” Mantooth sued the Red Cross and others for negligence and intentional infliction of emotional distress before she died. But Fulton County Superior Court Judge Constance C. Russell granted summary judgment to the Red Cross based on the conclusion that Mantooth failed to present any evidence that she was actually exposed to HIV. At the Georgia Court of Appeals, Chief Judge G. Alan Blackburn, Presiding Judge Marion T. Pope Jr. and Judge Charles B. Mikell Jr. affirmed Russell’s ruling. Mantooth v. American National Red Cross, 253 Ga. App. 587 (2002). In a decision by Mikell, the panel relied on Russaw v. Martin, 221 Ga. App. 683 (1996), in which the appeals court held that a plaintiff must prove actual exposure in order to recover for the fear of being exposed to HIV and/or the AIDS virus. The panel added that in McAllister v. American National Red Cross, 240 Ga. 246 (1977), the state high court exempted blood banks from strict liability. “It follows that in the case sub judice, the trial court did not err in refusing to exempt Mantooth from the legal requirement of demonstrating actual exposure to HIV in order to recover damages for emotional distress resulting from the Red Cross’ negligence,” Judge Mikell concluded. In their petition for certiorari, Brittain and Bird argued that the appeals court ruling gave “blood banks a carte blanche license to commit reckless or even intentional acts and yet not be held responsible for those acts.” They added that the appeals court had extended the Russaw decision and asked the justices to reject the appeals court ruling and Russaw itself, arguing that blood banks should not be completely immunized from potential liability. They compared the fear Mantooth felt to that of someone who was tortured by playing “Russian roulette” or who was exposed to aerosolized anthrax. The McAllister decision was inapplicable, they added, because it dealt with product liability, not negligence. Representing the Red Cross, Jeffrey C. Baxter and Lance Parks McMillian of Columbia, S.C.-based Nelson Mullins Riley & Scarborough responded that if Mantooth’s estate were able to get a trial simply because certain strains of the HIV virus remain undetectable by current tests, “then there would be no limits on blood bank liability.” The lawyers explained that the Red Cross mistake occurred when the donor wrote on a form that he had lived in Africa from 1992 until 1993. An employee should have followed up the question by determining whether the donor spent more than 12 months there. When the donor tried to donate again, the fact that he had lived there for 13 months was revealed and the donor’s blood was tracked to Mantooth. Baxter and McMillian argued that the appeals court properly applied Russaw because in both Russaw and the current case, there was no evidence that either plaintiff was truly exposed to HIV. That the Group O strain was undetectable by current testing did not mean doctors could not deduce whether Mantooth, in fact, had the disease, the lawyers added, pointing out that no evidence showed the donor or Mantooth had symptoms of HIV or AIDS. The high court voted 5-2 to hear the case, saying it was particularly interested in whether the appeals court erred in applying Russaw and McAllister to bar Mantooth’s negligence claim. Chief Justice Norman S. Fletcher and Justice Robert Benham voted against granting certiorari. The court on July 16 also granted the state’s application for certiorari in companion cases, Culver v. State, No. S02C1105, and State v. Cash, No. S02C1114. In both the court will decide what is the proper venue for prosecution of Medicaid fraud cases.

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