Published on:

Georgia Supreme Court Upholds Medical Malpractice Lawsuit Involving Physicians Who Negligently Failed to Give Vaccines Needed by an Asplenic Patient to Prevent Overwhelming Post-Splenectomy Infection

Ragland Law Firm, LLP has helped a severely injured woman achieve an important appellate victory in a medical malpractice case. The Georgia Supreme Court has just ruled in favor of an asplenic patient who pursued a malpractice lawsuit against several of her physicians after suffering an overwhelming post-splenectomy infection (OPSI) which resulted in the amputation of her limbs. The plaintiff, a wife and mother of three young children, became asplenic as a teenager due to injuries she suffered in a car accident that necessitated the surgical removal of her spleen. During the next two decades, none of her treating physicians ever warned her about the risks of OPSI or advised her to receive vaccines recommended for anyone with asplenia (lack of a functioning spleen).

Because she never received immunizations needed by asplenic patients, the plaintiff contracted an OPSI in September 2004, just a few months after giving birth to her third child. She was hospitalized for nearly a year and underwent multiple procedures including surgeries to amputate her arms and legs. In 2006, she retained medical malpractice attorney Daniel Ragland who filed a lawsuit against a primary care physician and several OB-GYN physicians who the plaintiff had seen regularly during the 1999-2004 period just prior to her OPSI. The malpractice lawsuit, filed in August 2006, alleged that each physician knew that the plaintiff had lost her spleen, and committed malpractice by failing to vaccinate her against the various bacterial pathogens known to cause OPSI.

The physician defendants convinced the trial judge to dismiss the lawsuit on grounds that it was time barred under the Georgia medical malpractice 5-year statute of repose. See O.C.G.A. § 9-3-71(b). The physician defendants successfully argued that because they first began to treat the plaintiff more than five years before the lawsuit was filed, the five year repose period had expired and the malpractice claims were barred as a matter of law. In effect, the physician defendants contended that to the extent they were ever negligent, such negligence would have occurred the very first time they treated the plaintiff and therefore, the five year medical malpractice statute of repose began to run on that date. In granting the defendants’ Motion to Dismiss, the trial judge rejected attorney Ragland’s argument that the plaintiff’s physicians committed malpractice on each occasion they saw her during the five year pre-suit period, and that each subsequent failure to warn or recommend vaccinations constituted a new and distinct breach of the standard of care for purposes of the five year statue of repose.

On behalf of the plaintiff, attorney Daniel Ragland successfully appealed to the Georgia Court of Appeals which, in March 2008, overturned the trial judge’s ruling and reinstated the malpractice lawsuit. See Lyon v. Schramm, 291 Ga.App. 48, 661 S.E.2d 178 (2008). In a 4-3 split decision, the Georgia Court of Appeals ruled that “the doctor’s repeated incidents of failure to warn are separate acts of negligent conduct, some of which occurred within five years prior to her suit. Under the [defendants’] reasoning, doctors would be immunized from a recent failure to warn a patient just because they first breached their duty to warn more than five years ago. We find no support for this proposition.”

The physician defendants then filed a petition for certiorari in which they asked the Georgia Supreme Court to review the case. That petition was granted and the case then went to the Georgia Supreme Court for a final appellate decision.

On February 23, 2009, the Georgia Supreme Court published its unanimous decision in Schramm v. Lyon, 285 Ga. 72, 673 S.E.2d 241 (2009). In an opinion joined by all seven justices, the Georgia Supreme Court affirmed the Georgia Court of Appeal’s decision, thereby overturning the trial judge’s erroneous dismissal of the malpractice lawsuit. The Georgia Supreme Court agreed that the plaintiff had properly alleged that her physicians “committed subsequent negligent acts causing new injuries which are subject to separate periods of repose.” Importantly, the Georgia Supreme Court held that “multiple breaches of the standard of care may constitute new and separate instances of professional negligence,” and that each such breach may give rise to separate “trigger” dates for commencement of the five year repose period under O.C.G.A. § 9-3-71(b). The Georgia Supreme Court’s landmark decision in Schramm v. Lyon will have significant implications for many other malpractice lawsuits involving negligent care rendered by healthcare professionals over a multi year period of time. Because of this case, many patients who are victimized by repeated acts of malpractice over a long period of time may still be able to bring lawsuits against negligent parties.

Soon after the Georgia Supreme Court rendered its decision in Schramm v. Lyon, the defendants agreed to a confidential settlement. At the request of the defendants, terms of the settlement cannot be discussed.

Overwhelming post-splenectomy infection (OPSI) refers to a severe systemic infection due to an encapsulated bacterial agent which occurs because the patient has no spleen or no functioning spleen. The spleen is vital to the body’s immune system and its defense against such systemic infections because its function is to filter and phagocytose bacteria and other blood borne pathogens to which humans are constantly exposed. The most likely causes of OPSI are Streptococcus pneumoniae, Neisseria meningitidis and Haemophilus influenzae (forms of encapsulated bacteria). Fortunately, there are separate vaccines which can and should be taken by asplenic patients every several years to guard against each of these bacterial infections. The CDC, various physician organizations, and other health agencies have repeatedly stated that asplenic patients are at a very high risk for pneumococcal, meningococcal and H. influenzae infections and thus, should routinely receive vaccinations available to prevent each of these diseases. Anyone living without a functioning spleen should consult with their physicians about immunizations and other measures which can lower the risk of suffering an OPSI.

Daniel Ragland is a Georgia trial attorney with a focus upon medical malpractice. He has nearly 20 years of experience handling medical malpractice lawsuits in Atlanta and many other parts of Georgia. Visit the Medical Malpractice Practice Center of his law firm’s website if you want more information about the expertise of Ragland Law Firm, LLP in the area of medical malpractice litigation.

Contact Information