Proximate Cause in Georgia

By Alex Stein

Two days ago, Georgia’s Court of Appeals decided Georgia Clinic v. Stout, — S.E.2d —-, 2013 WL 3497703 (Ga. App. 2013).

This tragic case features an elderly patient with an arthritic knee. Her doctors injected that knee with medication drawn from a multi-dose vial. They did so at their clinic under non-sterile conditions that included poor infection controls, failure to maintain sterile field, and poor hand-washing facilities (the clinic had no sinks and alcohol hand cleaners in the examination rooms). As a result, the patient’s knee was infected with methicillin-sensitive staphylococcus aureus (“MSSA”). Four other patients of the same clinic were also infected with MSSA from the same multi-dose vial.

The patient developed excruciating pain in her knee and became depressed. The doctors treated her for the pain in the knee but neglected the depression. They failed to refer the patient to a psychiatrist. After a short period of time, the patient committed suicide by jumping from the window of her 14th floor apartment. She left behind a suicide note saying that she can’t take her pain anymore and prefers to die.

The patient’s estate won the wrongful-death action against the doctors and was awarded, on top of compensatory damages, punitive damages in the amount of $250,000. This punitive-damage award was unquestionably correct. The defendants acted without malice and hence they did not deserve to pay a seven-digit-figure amount in punitive damages. At the same time, the defendants’ malpractice—which they were savvy enough not to contest—exhibited a profound want of care and indifference to consequences. Expectedly, therefore, the Court of Appeals affirmed the award.

Proximate cause was a more difficult part of the Court’s decision to affirm the verdict. Why would a general doctor or an arthritis specialist be in charge of her patient’s psychiatry as well? In technical terms of the Third Restatement of Torts, why would a patient’s psychiatric condition fall within the scope of the risk associated with a doctor’s delivery of a non-psychiatric treatment? To fall within the scope of that risk, the patient’s psychiatric problem must be part of the treating physician’s duty of care, as determined by her specialty.

The plaintiffs’ expert witness was a specialist in psychiatry and depression, not in general medicine or arthritis care. He testified that “the potential consequences of failing to treat depression are increased suffering, health complications, and suicide, and that chronic pain and lack of mobility can worsen depression symptoms.” The expert also attested that “the combination of [the patient’s] untreated depression, the severe pain caused by the infection in her knee, and her decreased mobility and independence amounted to a ‘perfect storm’ in contributing to [her] suicide.”

However persuasive it may be, this testimony could only establish cause-in-fact, not the proximate cause. To satisfy the proximate cause requirement, the plaintiffs had to call a different expert who could identify the scope of the risk for arthritis specialists and general doctors. That expert would have to attest that taking care of a patient’s depression symptoms is part and parcel of those physicians’ customary practices.  Proximate cause and duty of care are interconnected.

The Court of Appeals and the court below seem to have missed this pivotal point. The effect of that omission could be quite dramatic, given that many patients get depressed while being treated for pain and other ailments.

Would a patient’s referral to a psychiatrist now become part of the defensive medicine protocol of other doctors?

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