In this medical fraud action, the defendants, Joseph Johnson, M.D. and Athens Orthopedic Clinic, P.A. (collectively “Dr. Johnson”), filed a motion for summary judgment on the fraud, punitive damages, and expenses of litigation claims brought by the plaintiff, Cedric Johnson. The State Court of Athens-Clarke County granted the motion, and Mr. Johnson appeals, arguing that a material question of fact remains regarding whether Dr. Johnson knew or should have known that Mr. Johnson had a particular medical condition and tortiously concealed that fact from him during the course of his medical treatment. For the following reasons, we affirm.
. Summary judgment is proper where the movant shows that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Jackson v. K-Mart Corp.,
Viewed in the light most favorable to the nonmovant, Mr. Johnson, the record shows the following facts.
On December 16, 2008, Mr. Johnson was injured while playing flag football and had x-rays taken of his left Achilles tendon and foot in the emergency department at St. Mary’s Hospital. The emergency room physician diagnosed Mr. Johnson with a partial Achilles injury and referred him to Athens Orthopedic Clinic for treatment. A physician assistant examined Mr. Johnson at the clinic on December 1 and noted, inter alia, “an obvious soft tissue swelling and palpable defect about 3 to 4 cm proximal to the insertion aspect of the Achilles” in his left foot. The physician assistant’s impression was of a “left acute Achilles tendon rupture.” Dr. Johnson examined Mr. Johnson on December 22 and reviewed the x-rays taken at St. Mary’s Hospital. Based on his examination and review of the x-rays, Dr. Johnson confirmed the diagnosis of an acute rupture of the left Achilles tendon, noting a “palpable gap to his Achilles tendon there about 4 to 5 cm above the insertion.” He performed a surgical repair of the tendon on December 23.
From January to August 2009, Mr. Johnson saw Dr. Johnson once per month to track his recovery and to work on physical therapy strategies. At three of these visits, Mr. Johnson complained that he was experiencing pain in his left heel area and around the surgical site, which Dr. Johnson told him was normal in patients recovering from this type of surgery. At the July 31, 2009 visit, Dr. Johnson told Mr. Johnson for the first time that he had a “Haglund deformity” on his left heel.
In this action, Mr. Johnson alleges that, in addition to the acute rupture of his left Achilles tendon, he also had the Haglund deformity on his left heel, that the Achilles tendon was likely defective at one or more places other than the location of the rupture, and that Dr. Johnson knew or should have known of the Haglund deformity during his treatment of Mr. Johnson before the December 23, 2008 surgery or, at least, before the surgery was complete. In addition, Mr. Johnson alleges that Dr. Johnson failed to disclose this information to him in order to cause him to undergo, and pay for, further medical treatment when the Haglund deformity could have been resolved during the initial surgery.
The elements of a medical fraud claim are: (1) a false representation made by the defendant to the plaintiff; (2) scienter, that is, the defendant’s moral guilt in making the misrepresentation, which requires knowledge that the representation was false when it was made; (3) an intention of the defendant to induce the plaintiff to act or refrain from acting in reliance on the representation; (4) a justifiable reliance on the representation by the plaintiff; and (5) damage to the plaintiff as a result of the representation. Roberts v. Nessim,
As Mr. Johnson contends, in contrast to a professional negligence claim,
In seeking summary judgment, Dr. Johnson argued that there is no evidence that Mr. Johnson had the Haglund deformity on or before the day of his surgery, December 23, and that, even assuming Mr. Johnson had the deformity at that time, there is no evidence that Dr. Johnson knew or should have known of the deformity before or on that date. He contends that he cannot be held liable for concealing the alleged material fact when there is no evidence he had actual or constructive knowledge of the fact, that is, the existence of the deformity. He argues that there is, therefore, no evidence from which
With regard to Mr. Johnson’s pre-surgical x-rays, he contends that the x-rays show “bumps” on the back of his heel and provide evidence that Dr. Johnson knew or should have known of the Haglund deformity. Mr. Johnson argues that he does not need expert analysis of the x-rays to guide the jury because
it is presented for what it is —■ either the finder of fact can see bumps on the heel on the images taken December 16, 2008 or they cannot. If at least one bump is there, either it’s the Haglund deformity referenced in [Mr. Johnson’s] treatment records or it is not, depending on whose presentation of the facts one believes.
For a jury to find, based on the pre-surgical x-rays, that Dr. Johnson knew about the Haglund deformity, either the jury must be able to recognize the condition through a layperson’s common understanding and experience or the x-rays must be coupled with expert testimony explaining what they show. We have reviewed the x-rays and have determined that whether they should have put a doctor on notice of a Haglund deformity is not within a layperson’s common understanding and experience. Instead, this issue requires expert testimony, which Mr. Johnson did not present. See Jones v. Finley,
With regard to the examination notes of the physician assistant and Dr. Johnson, Mr. Johnson argues that the fact that the physician assistant noted a “palpable defect about 3 to 4 cm proximal to the insertion aspect of the Achilles,” while Dr. Johnson observed a “palpable gap” at a different location, that is, “about 4 to 5 cm above the insertion” of the tendon, shows that Dr. Johnson knew or should
With regard to the note by Mr. Johnson’s subsequent treating physician, the record shows that that doctor diagnosed Mr. Johnson with a “chronic [A] chilles condition and severe degeneration.” This Court has reviewed the note by the physician who interpreted Mr. Johnson’s MRI regarding chronic Achilles tendinosis and the note by Mr. Johnson’s subsequent treating physician regarding a chronic Achilles condition. We conclude that whether they provide evidence that Dr. Johnson knew or should have known of the Haglund deformity before the conclusion of the December 23, 2008 surgery is a medical question that is not within common understanding of laypeople, and, therefore requires expert opinion evidence. Further, neither of these doctors’ notes fulfills Mr. Johnson’s need for expert testimony, because neither expresses an opinion regarding what conclusions Dr. Johnson should have drawn about the Haglund deformity at the relevant time.
Finally, with regard to evidence that Dr. Johnson’s recommended course of treatment for Mr. Johnson was significantly different from that of his subsequent treating physician, the record shows that Dr. Johnson suggested an “arthroscopic Haglund excision with retrocalcaneal debridement and then Topaz treatment of his tendon posteriorly,” while Mr. Johnson’s subsequent treating physician’s recommendation included a “left Achilles debridement, left calcaneal exostosectomy, flexor hallucis longus tendon transfer, and reattachment of the [A] chilles using suture anchors.” Without expert testimony to explain how different these two recommendations actually are, merely showing that two physicians recommended different sounding courses of treatment outside the scope of common understanding is insufficient evidence to support an allegation of fraud.
This case is similar to the claim for medical fraud in Roberts v. Nessim. In that case, the record contained no direct evidence that the defendant doctor made false representations to the patient, and the plaintiff pointed the court to 11 depositions, the defendant’s affidavit, and the patient’s medical records, but failed to specify how any of the evidence supported the elements of her fraud claim.
Furthermore, “[u]nder Georgia law, a plaintiff cannot recover punitive damages when the underlying tort claim fails.” (Citation omitted.) Lewis v. Meredith Corp.,
Judgment affirmed.
Notes
A Haglund deformity is a bony, enlarged abnormality on the back of the heel.
See also OCGA § 23-2-53 (“Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”).
See OCGA § 9-11-9.1 (a) (“In any action for damages alleging professional malpractice against... [a] professional licensed by the State of Georgia . . . [or] [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia[,] . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”).
Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.
OCGA § 51-12-5.1 (b).
The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
OCGA § 13-6-11.