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Medical alert lawsuit survives motion to dismiss in death case in GA / ISC happenings
March 23,  2022
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Medical alert lawsuit survives motion to dismiss in death case in GA
            Poor legal defense strategy [in my opinion] and "bad facts" have led to denial of a motion to dismiss a Complaint alleging negligence and violation of Georgia’s Fair Business Practices Act [for deceptive business practices].  You can read the entire case on K&K's website under Leading Cases State by State.  This is case from Georgia titled Brown v Medscope and Avantguard.  It's a medical alert case where the subscriber pressed the medallion, the signal went to Avantguard, who immediately dispatched to the 911 call center to report the medical emergency.   EMT arrived within minutes but would not enter because the door was locked, so they waited for a fire department to show up, 12 minutes later, to get through the door.  The subscriber had breathing issues and died a few days later.  The Plaintiff in the lawsuit is the subscriber's son. 
            According to the Judge Medscope's promotional material claimed that Medscope's certified trained personnel  would respond to signals and triage the situation for responding personnel.  Here the Judge noted that the operator was employed by Avantguard, not Medscope, and did not find out or relay to the 911 operator the subscriber's underlying medical condition, she was home alone or that the door to the premises was locked.  This, according to the Plaintiff and the Judge, could sufficiently plead negligence and also violation of the statute prohibiting deceptive practices.
            The case, how it was handled so far and the Judge's decision, is classic and the issues addressed over and over again on this forum in numerous articles.  On the factual side, it's all about EXPECTATION, specifically the subscriber's reasonable expectation after having read all of the promotional material on Medscope's website and its other promotional material.  Interestingly the Judge mentions that there is a Medscope contract with the subscriber, but only to also note that in some circumstances [like this one] a Judge can depart from the general rule that negligence in performance of a contract does not give rise to a tort cause of action [negligence] unless a "separate duty" beyond the contract is owed. 
            Why do I suggest that the defense strategy was wrong?  The defendants' [Medscope and Avantguard - no doubt represented by their respective insurance company assigned defense counsel] first move in the case was to move to dismiss the Complaint.  As the Judge correctly notes in his decision, this is a motion addressing only the sufficiency of the pleading, the allegations in the Complaint.  First, the allegations made by the Plaintiff must, for purposes of the motion to dismiss, be deemed true.  Second, if the allegations of the Complaint can be considered by the Judge to state a cause of action, any cause of action, in any plausible way, the motion to dismiss must be denied. 
            K&K almost never makes this kind of "pre-Answer" motion to dismiss because it's hard to win.  Essentially the Judge would have to find that the Plaintiff's lawyer was not even able to "state a cause of action".   Had the defense attorneys simply served an Answer to the Complaint they then could have moved for, what all of you already know, for "summary judgment" dismissing the Complaint.  In that motion the Judge will not deem the allegations of the Complaint true and the Plaintiff will have to be able to prove that it has at least a chance of proving a case.  A proper Answer in this case should have been able to lay the foundation to make it clear that the Plaintiff has no chance of proving a case as a matter of law. 
            Because the motion attacked the Pleading [the Complaint] rather than addressed the issue of whether the defendants were entitled to summary judgment dismissing the action as a matter of law, I can't fault the Judge's decision, though I suspect that further analysis of the Medscope contract may have offered additional information.  However, the Judge merely mentions that there is a Medscope contract without going into any details.  It's not clear if the defense attorneys failed to delve into the details of the contract, explaining why the Judge didn't really explain how the Plaintiff will be able to get around the contract provisions, again, assuming there are contract provisions that the defendants can rely on.  The Judge does state that Avantguard had no contract, so either Medscope's contract did not extend its protection to its subcontractor, Avantguard, or the contract has no protection in it. 
            Medical alert cases are often some of the hardest to defend because they often involve severe personal injury or death, especially death following a period of time of suffering.   While sympathy shouldn't play a role in deciding cases, it does. 
            Maybe we will hear more about this case; maybe not.  Good chance that the defendants' are fully covered by their E&O carriers, so good luck to those carriers, they will probably need it.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301