Objection to Medical Narrative

GWINNETT COUNTY STATE COURT

STATE OF GEORGIA

ALICE URIAH,

Plaintiff,

vs.

SHELLY HAMPTON,

Defendant.

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JURY TRIAL DEMANDED

CASE NO.: 10-C-13435-6



PLAINTIFF'S OBJECTIONS TO DEFENDANT'S NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18 AND THIRD NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18

Plaintiff, ALICE URIAH, through undersigned counsel, files this objection to the following Notices filed by Defendant:

a) NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18, dated August 11, 2011; and

b) THIRD NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18, dated August 15, 2011.

Defendant Shelly Hampton served Plaintiff with the above-referenced Notices pursuant to O.C.G.A. § 24-3-18. The first Notice includes two sets of documents sought to be admitted: 1) three diagnostic reports from Dr. Garrett Ward dated March 5, 2010; and 2) a medical report from Dawn Wilson dated December 1, 2009. The second notice includes three diagnostic reports from Dr. Hugo Falcon dated December 29, 2009. For the reasons described below, this Court should disallow the introduction of all three (3) sets of documents associated with the two Notices.

O.C.G.A. § 24-3-18, in its entirety, provides as follows:

"Admissibility Of Medical Reports; Qualifications Of Person Signing Reports; Right Of Adverse Party To Cross-Examine Person Signing Reports
(a) Upon the trial of any civil case involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed medical doctor, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice nurse, social worker, professional counselor, or marriage and family therapist shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness; provided, however, that such report and notice of intention to introduce such report must first be provided to the adverse party at least 60 days prior to trial. A statement of the qualifications of the person signing the report may be included as part of the basis for providing the information contained therein, and the opinion of the person signing the report with regard to the etiology of the injury or disease may be included as part of the diagnosis. Any adverse party may object to the admissibility of any portion of the report, other than on the ground that it is hearsay, within 15 days of being provided with the report. Further, any adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony. The party tendering the report may also introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise.
(b) The medical narrative shall be presented to the jury as depositions are presented to the jury and shall not go out with the jury as documentary evidence."

Because all of Defendant's submissions fail to meet the requirements of O.C.G.A. § 24-3-18, this Court should not allow the introduction of these narratives at trial. In support thereof, Plaintiff respectfully shows this Court as follows:

1.

In its August 17, 2011 Order, this Court has already disallowed all the documents included in Defendant’s THIRD NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18, dated August 15, 2011. The court correctly ruled that these documents were not admissible pursuant to O.C.G.A. § 24-3-18, and the Court should reject Defendant’s efforts to re-introduce these same documents in a separate motion.

2.

No document associated with Defendant’s NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18, dated August 11, 2011, is signed. The name of each physician is simply printed. Because the documents submitted by Defendants are not signed, a fundamental requirement of law has not been met, and these documents therefore cannot be introduced pursuant to O.C.G.A. § 24-3-18, as a matter of law.

2.

All the documents submitted by Defendants include information outside the scope of O.C.G.A. § 24-3-18. Under Georgia law, a narrative must be in prose language that is understandable to a jury. In the case of Bell v. Austin, 278 Ga. 844, 607 SE 2d 569, the Georgia Supreme Court held that "the law authorizes the admission of only those reports which, rather than consisting of unexplicated medical terms and uninterpreted scientific test results, set forth the relevant information in prose language that is more readily understandable to laymen. Other medical records which would require an expert analysis to demonstrate their import are still subject to a hearsay objection." See John Crane, Inc. v. Jones, 262 Ga. App. 531 , 535 (2) (586 SE2d 26) (2003).

Because all the documents, particularly the MRI diagnostic documents submitted by Defendant, contain "unexplicated medical terms" and are not in a prose style that is understandable to a layman, none are admissible and should be excluded. The information in each of these reports was interpreted by a medical doctor for another medical doctor and requires a medical background to understand. It would be unfair to allow the attorney for Defendant to interpret the language inappropriately and argue this flawed interpretation to the jury.

3.

All submitted medical records are also insufficient and improper pursuant to O.C.G.A. § 24-3-18 to the extent they are not in "narrative form." These are simply short bullet points for interpretation by from one medical professional to another. Moreover, the radiologists who generated the MEI reports, Hugo Falcon and Garrett Ward, never examined, met, or even saw the Plaintiff.

4.

The submitted medical records improperly attempt to introduce inappropriate and inadmissible opinion evidence, facts outside or beyond medical testimony and/or facts otherwise not in evidence or inconsistent with the evidence properly before the jury in this matter, inaccurate and inadmissible factual statements, conclusions, and/or opinions of facts and law, and inadmissible legal or factual conclusions as to ultimate issues of fact or law which improperly invade the province of the jury in this action.

5.

The admission of such narratives would deprive Plaintiff of her right to confront the witnesses testifying against her in violation of the Georgia and United States Constitutions, as two of the medical professionals in question are not the examining or treating physicians of Plaintiff. They simply interpreted films for the Plaintiff’s treating physicians, but did not clinically treat, examine or ever talk to the Plaintiff.

WHEREFORE, Plaintiff prays that this Court will exclude the medical documents submitted for introduction by Defendant pursuant to O.C.G.A. Section 24-3-18.



Respectfully submitted this _________ day of ___________________, 2011.



________________________
P. Charles Scholle
Attorney for Plaintiffs
Georgia Bar Number 629736

Scholle Law
6340 Sugarloaf Parkway
Suite 200
Duluth, Georgia 30097
(678)775-6830



GWINNETT COUNTY STATE COURT

STATE OF GEORGIA

ALICE URIAH,

Plaintiff,

vs.

SHELLY HAMPTON,

Defendant.

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JURY TRIAL DEMANDED

CASE NO.: 10-C-13435-6



CERTIFICATE OF SERVICE

This is to certify that I have this day served opposing counsel for Defendant Barbara Hampton with the attached PLAINTIFF'S OBJECTIONS TO DEFENDANT'S NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18 AND THIRD NOTICE OF INTENT TO INTRODUCE MEDICAL NARRATIVES PURSUANT TO O.C.G.A. § 24-3-18 by depositing a copy of same in the United States mail with adequate postage affixed thereon addressed as follows:

M. Rachel Berganske, Esq.
Broughton Law
305 West Wieuca Road
Atlanta, Georgia 30342

Gary Cooper
3991 Saint Andrews Square
Duluth, Georgia 30096



This ____ day of ____________________, 2011.



________________________
P. Charles Scholle
Attorney for Plaintiffs
Georgia Bar Number 629736

Scholle Law
6340 Sugarloaf Parkway
Suite 200
Duluth, Georgia 30097
(678)775-6830

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