Hamilton v. Shumpert

• Decision Date: 15 July 2009
• Docket Number: No. A09A0223.,A09A0223.
• Citation: 682 S.E.2d 159,299 Ga. App. 137
• Parties: HAMILTON et al. v. SHUMPERT et al.
• Court: Georgia Court of Appeals

682 S.E.2d 159

299 Ga. App. 137

HAMILTON et al. v. SHUMPERT et al.

No. A09A0223.

Court of Appeals of Georgia.

July 15, 2009.

Lamar, Archer & Cofrin, David W. Davenport, Atlanta, John W. Crongeyer, Robert K. Finnell, Rome, for appellants.

Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, Atlanta, Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert

L. Berry, Jr., Stephen B. Moseley, Rome, for appellees.

PHIPPS, Judge.

Within days of being seen by a hospital's emergency room physician and her own primary care physician for chest pain and related symptoms, Myra Hamilton suffered heart failure, loss of her kidneys, and other severe complications. She and her husband filed a medical malpractice suit. They named as defendants: Paul K. Shumpert, M.D., the emergency room doctor who treated her; NW Georgia Emergency Medical Associates, P.C., the company for which he worked; Redmond Park Hospital, Inc. d/b/a Redmond Regional Medical Center, the hospital where she was seen by Shumpert; Billy G. Chacko, M.D., Hamilton's primary care physician and internist; Billy G. Chacko, M.D., P.C., Chacko's professional corporation; and Harbin Clinic, LLC, where Chacko worked. The Hamiltons dismissed their claims against the hospital; the case proceeded to trial; and the jury found for the defendants.

The Hamiltons appeal the judgment entered upon the jury verdicts. They contend that the trial court erred by denying their motion to impose sanctions against defense counsel for certain conduct during discovery, by curtailing their use of an exhibit during cross-examination of a defense medical expert, and by failing to give a curative instruction and rebuke defense counsel regarding improper remarks in closing argument. Because the Hamiltons have shown no reversible error, we affirm.

On April 5, 2003, Hamilton experienced fatigue, shortness of breath, chest pain, and heart palpitations. She called the Harbin Clinic to speak with Chacko. The office was closed that Saturday, but one of Chacko's partners at the Harbin Clinic returned her call. Hamilton heeded that doctor's advice to report to a hospital's emergency department.

At Redmond Regional Medical Center, Hamilton was seen by Shumpert. He noted her high blood pressure, ordered an EKG test, ordered lab work, and ordered and reviewed an x-ray of her chest. He diagnosed Hamilton with bronchitis and possibly pneumonia, prescribed antibiotics, then discharged her with instruction for her to follow-up with her primary care physician in two days.

On Monday, Hamilton felt worse, despite taking the prescribed medication. She went to see Chacko that day, reporting her ongoing symptoms and recent visit to the emergency department. Chacko noted that Hamilton's blood pressure was elevated. He ordered tests on Hamilton's blood and urine samples. Chacko also reviewed the results of Hamilton's blood count and chemistry reports, as well as the EKG that had been performed at Redmond two days earlier. He did not review the chest x-ray because he did not know about it. Chacko scheduled Hamilton to see a pulmonologist that Thursday.

But by Tuesday morning, Hamilton's ability to breathe had worsened. She called Chacko's office and was advised to report to an emergency department. On the way there by ambulance, Hamilton suffered a respiratory arrest. She remained hospitalized through late May for numerous severe complications, including congestive heart failure and the loss of both kidneys.

Meanwhile, on April 10, Chacko consulted with a rheumatologist at the Harbin Clinic who had seen Hamilton the previous October and again in January 2003. During those visits with Hamilton, the rheumatologist had considered scleroderma as a possible diagnosis of her condition. After a kidney biopsy was obtained during the latter part of April, Hamilton was diagnosed with scleroderma renal crisis.

In their lawsuit, the Hamiltons alleged that Shumpert and Chacko had breached the standard of care by failing to adequately perform and evaluate tests between April 5 and April 7 and thus failing to give Hamilton available medications that would have prevented the heart failure and protected her kidneys from damage. They presented evidence that the tests performed at the emergency department revealed elevated blood pressure, an abnormal EKG, an abnormal chest x-ray, and abnormal renal function.

The defendants denied liability on the ground that, under the circumstances, the standard of care did not require the defendant doctors to diagnose and thus treat, within the April 5-7 time frame, Hamilton's underlying condition of scleroderma renal crisis. A defense medical expert, who was an internist with a speciality in rheumatology, described scleroderma as a connective tissue disease with a "hallmark" manifestation of the presence of tight, hard skin. In some cases, scleroderma affects internal body parts, such as the lungs, heart and kidneys. In very rare cases, individuals suffer the internal damage caused by scleroderma without also having the characteristic skin changes. These persons have what is called scleroderma sine scleroderma. The expert testified that Hamilton suffered from this condition. According to the expert, "Scleroderma renal crisis is one of the few ultra-emergencies in scleroderma.... [I]t's an acute onset of very severe high blood pressure that can cause renal failure and kidney failure and death." She further testified that this condition is not predictable.

1. The Hamiltons contend that the trial court erred by denying their motion pursuant to OCGA § 9-11-37 that sought the imposition of sanctions based upon ex parte communications in 2006 between Shumpert's attorney and a cardiologist. This doctor had treated Hamilton in April 2003, during his employment with the Harbin Clinic, which ended in August 2003. The Hamiltons assert that the communications violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA).¹ "A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse the trial court's ruling on such matters absent the showing of a clear abuse of discretion."²

The record shows that, pursuant to OCGA § 9-11-9.2, Hamilton signed and filed with the complaint in 2005 a medical authorization form wherein she granted the defendants' attorneys the "right to discuss the care and treatment of Plaintiff, Myra Lynn Hamilton, with all of [her] physicians." The Hamiltons argue that they should not be bound by this authorization in light of Moreland v. Austin.³

In that case, the Supreme Court of Georgia clarified that HIPAA applies to ex parte communications between defense counsel and health care providers, that HIPAA is more stringent than Georgia law, and that it therefore "preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff's prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians."⁴ The Supreme Court instructed, "Thus, in order for defense counsel to informally interview plaintiff's treating physicians, they must first obtain a valid authorization, or court order or otherwise comply with the provisions of 45 CFR § 164.512(e)."⁵

Despite the relevant HIPAA protections, which were enacted in 2003,⁶ Hamilton provided an authorization form that did not in any way restrict discussions between defense counsel and Hamilton's former treating physicians.⁷ Moreover, Shumpert's attorney contacted Hamilton's prior treating cardiologist at a time when arguably the applicability of HIPAA to ex parte communications was uncertain. Under these circumstances, the trial court did not clearly abuse its discretion in denying the Hamiltons' motion to impose sanctions against defense counsel.⁸

2. The Hamiltons contend that the trial court erred by curtailing their use of a note dictated as part of Hamilton's medical records by the rheumatologist at the Harbin Clinic who had seen Hamilton in October 2002 and January 2003. According to the Hamiltons, the note showed that during the January visit, the rheumatologist had considered that Hamilton may have had some form of scleroderma. They argue that the note was therefore proper impeachment and rebuttal evidence because it demonstrated an "important contradiction between what the treating doctors actually thought and recorded in the medical records compared to what Defendants' one rheumatology expert `assumed' they thought."

During cross-examination, the defense rheumatology expert stated that she did not "think [the treating rheumatologist] was considering diffused scleroderma." This response led to the Hamiltons putting the note at issue on display for the jury. The defense objected, arguing that the Hamiltons were attempting to use the note in an impermissible manner and pointing out that the note had been written on April 10 by the treating rheumatologist after reflecting upon his visit with Hamilton the previous January. At a bench conference, Hamilton's counsel explained that the treating rheumatologist had included in his note that, during that previous January, he "felt that she had a probable evolving case of Crest syndrome or diffuse scleroderma." After hearing additional argument, the court ordered that the note be taken off display, remarking that the Hamiltons had already called the treating rheumatologist for cross-examination in their case in chief.

The record shows that, during their examination of the treating rheumatologist, the Hamiltons asked the doctor about his October and January visits with Hamilton. He testified that during his October 2002 evaluation of her, he considered "evolving scleroderma" as a possibility, and he identified a trial exhibit as his handwritten note showing so. The rheumatologist also identified another exhibit as his dictated note concerning the same matter. In...