Judge Herbert Phipps, Georgia Court of Appeals. Senior Judge Herbert Phipps, Georgia Court of Appeals (Photo: John Disney/ALM)

Thomas L. Lyons was a football star at the University of Georgia, played for the Denver Broncos, performed as a concert pianist, conducted a symphony orchestra—and became a doctor who pioneered gynecological endoscopic surgery.

“We have never had more of a Renaissance man,” Georgia athletic director Vince Dooley said in a news release announcing Lyons would receive a prestigious alumni award in 2002.

But in the next nine years, Lyons’ medical practice suffered as he dealt with a series of problems that culminated in a 2011 stroke and a lawsuit against insurers for disability benefits. The case settled but resurfaced as a key part of a patient’s malpractice and fraud claims that the Supreme Court of Georgia has agreed to hear.

The high court case sets up a debate over, among other things, its precedent against a doctor’s personal problems becoming litigation fodder to be used against them.

“It is nearly impossible to overstate the public policy implications” of the underlying lower court decision that said Lyons’ patient could sue him for not disclosing his physical condition, his lawyers told the Supreme Court.

Lyons did not respond to a request for comment delivered by his lawyers.

The 2011 lawsuit filed by Lyons against the insurers said his health problems included tremors and a thumb problem affecting his fine motor skills, lost depth perception in his left eye and trouble standing due to hip and knee injuries. He claimed his collections fell 15 percent to 45 percent from 2001.

“I am admittedly very ‘old school’ and have a tendency to try to do more than I should, but those days became significantly limited with my total knee replacement in 2002,” Lyons said in a 2010 letter—before his stroke—to an insurer in the court record. His lawyer, Heather Karrh of Fayetteville, declined to comment. The insurers’ lawyer, H. Sanders Carter Jr., could not be reached by deadline.

It’s unclear what Lyons’ physical condition was in 2015, when he performed a hysterectomy on Bonnie Holmes, which led to the state Supreme Court case.

Holmes claims Lyons’ negligence in the surgery caused injuries to her ureter and other complications. She also said she wouldn’t have agreed to have Lyons as her surgeon had she known he claimed to be so physically disabled that he deserved benefits from his insurers.

A Rockdale County trial judge dismissed the medical malpractice claims, concluding the plaintiff’s medical expert—despite saying the defendant doctor wasn’t “physically capable” of doing the surgery safely—failed to specify at least one negligent act or omission.

The judge also tossed claims of fraud, battery and negligent misrepresentation because Georgia law does not require a physician to tell patients about “negative life factors” that might affect professional performance.

A split panel of the Georgia Court of Appeals reinstated the claims last year. Senior Judge Herbert Phipps wrote for then-Presiding Judge John Ellington and then-Judge Charlie Bethel that the plaintiffs’ medical expert was specific enough at this early stage of the case to keep the case alive.

“Holmes cannot be required to submit an expert affidavit which unequivocally demonstrates the evidentiary merits of her claim unless and until the Defendants move for summary judgment and submit evidence demonstrating that Holmes’s claim lacks merit,” Phipps wrote.

But the panel split on a second issue—whether the doctor can be sued for battery, negligent misrepresentation and fraud for not disclosing his disability claims.

A key 2000 high court case, Albany Urology Clinic v. Cleveland, 272 Ga. 296, held that a doctor had no duty to disclose illegal cocaine use to a patient because there wasn’t evidence the drug use affected his medical performance.

Phipps and Ellington held that Holmes’ case was different because she “put forth specific allegations” that Lyons didn’t inform her of multiple disabilities that could have impaired his performance in surgery, which she claims resulted in her injuries.

The trial judge “could not have said with certainty at this stage in the proceeding that Holmes ‘will be unable to prove any set of facts in support of [her] claim that would entitle [her] to relief,” Phipps wrote.

Bethel—who like Ellington is now on the Supreme Court and recused from its review of the case—dissented on the disclosure question. ”I do not find Dr. Lyons’ physical limitations to be ‘directly related to the subject matter of the professional relationship—i.e. diagnoses, treatments, [or] procedures” that would require him to have disclosed them.

Lyons’ defense lawyers, Daniel Huff, R. Page Powell Jr. and Francesca Townsend of Huff, Powell & Bailey, asked the Supreme Court to grant certiorari in the case. They argued the appellate ruling essentially “erased a bright-line rule” from the 2000 high court decision allowing doctors to stay silent, “then left it to Georgia physicians and their patients to figure out where the new line has been drawn.”

Bill Bird and Paul Hotchkiss of the Bird Law Group and solo practitioner Irwin Ellerin represent  Holmes and her husband, Jeremy. The lawyers told the state Supreme Court that the case was too narrow for the justices to address.

“This is not a case where a physician used drugs on the weekend, consumed alcohol while off work, or was in the past the subject of a criminal complaint,” they wrote, noting cases where courts held a doctor’s personal problems couldn’t be used as evidence in malpractice claims.

“This is a case where a physician knew he had loss of fine motor skills and vision and coordination problems that negatively affected his ability to safely operate on his patient, yet he proceeded anyway,” they added. “Despite Dr. Lyons’ histrionic ‘slippery slope’ arguments … expected to arise again often, if ever.”

Bird said his team didn’t have anything to add about the case beyond the briefs. Huff, the lead defense lawyer, similarly had no comment.

In granting certiorari, the justices said they were particularly concerned with whether the plaintiff’s medical expert was specific enough and whether the defendant’s failure to disclose his physical condition supported claims for fraud, battery and negligent misrepresentation.

Justice Nels Peterson dissented from the high court’s grant of certiorari for the defendants’ petition.