Malpractice at the Front Desk

By Alex Stein

Georgia’s Court of Appeals recently categorized a clinic’s front-desk person’s failure to communicate a patient’s complaints to the doctors as ordinary negligence rather than medical malpractice. Wong v. Chappell, 773 S.E.2d 496 (Ga.App. 2015).

This categorization has four important implications:

First, it allows an aggrieved patient to file her suit and proceed to trial without obtaining expert testimony and a preliminary affidavit (or certificate of merit) from a qualified physician.

Second, it frees plaintiffs from the stringent limitations and repose rules that apply in medical malpractice actions.

Third, it exempts an aggrieved patient’s suit from statutory caps for medical-malpractice damages and allows the patient to recover full jury-assessed compensation for her injuries.

Fourth and equally important, it entitles the plaintiff to a broad jury instruction that speaks about ordinary negligence, as opposed to an extremely narrow definition of “medical malpractice” (see Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1209-10 (2012)).

In the case at bar, an unlicensed medical assistant employed by the defendants’ clinic had a phone conversation with a patient after answering her call. During that conversation, the patient told the assistant that “she was experiencing pain radiating from her flank and back, bleeding, and changes in her bowel movement.” The assistant estimated that the patient was having a urinary tract infection and inquired about the typical symptoms. Remarkably, the assistant “did not talk to any doctor, nurse practitioner, or physician’s assistant about the back and flank pain or the bleeding because she did not think [that the patient’s] complaints were sufficiently serious.” The patient consequently was denied the medical attention she needed and developed a life-threatening complication, from which she died.

The Court of Appeals ruled that the plaintiff’s complaint sounded in ordinary negligence, rather than medical malpractice, and that the jurors that decided the case should have been instructed accordingly.

Importantly, the Court also decided that the plaintiff could sue the clinic and the assistant for statutory violation. By acting as she did, the assistant violated Georgia’s statute (OCGA § 43–34–22) that prohibits the practice of medicine without a license. The Court held in this connection that the statute’s violation amounted to negligence per se.

This decision is unquestionably correct. Special rules that protect physicians and other healthcare providers against unmeritorious suits (characterized as “narrow entries” into medical malpractice liability: see Stein, id., at 1208-16) should not benefit administrative front-desk personnel and unlicensed assistants. Moreover, clinics, hospitals and doctors need to have a strong incentive to train their administrative stuff properly and prevent communication failures that compromise patients’ treatment.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.