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Most personal injury cases are filed in state court. That is because most torts, including personal injury, are governed by state law. There are, however, times when a personal injury case is filed in state and then removed (transferred) to a federal court. This is typically done by out-of-state defendants, usually corporations, who believe the federal court gives them an advantage.

Federal courts are generally thought to be friendlier towards defendants than state courts. One reason for this is that, although state law still governs the underlying personal injury lawsuit, federal courts follow different rules regarding the admission of evidence than state courts. The federal rules are uniform throughout the country, while the rules in a Georgia state court are specific to the state.

That said, a defendant cannot remove a case from state to federal court unless certain legal requirements are met. First and foremost, there must be complete “diversity” among the parties. This just means the plaintiff and defendant must be residents of different states. For example, if a Georgia plaintiff files a personal injury lawsuit against a business incorporated in Florida, there is complete diversity.

Of course, diversity is only the first step. Even if the parties reside in different states, the “matter in controversy” must exceed $75,000 before a federal court can assume jurisdiction over the case. Federal courts are not a place to pursue small claims actions.

Riner v. Retained Subsidiary One, LLC

But, what if the plaintiff does not specify how much he or she seeks to recover? Federal jurisdiction may still exist. Here is a recent example from a pending case before a federal judge in Valdosta. In this case, the plaintiff was shopping at a local supermarket when “a water bottle display fell from a shelf on top of a freezer and onto him.” The plaintiff then sued the corporations that owned the supermarket and supervised the display, both of which are non-Georgia residents. The defendants then removed the case from state to federal court.

The plaintiff asked the federal court to remand (return) the case to state court because it had not been established that the “amount in controversy” exceeded the mandatory $75,000 threshold. Indeed, the plaintiff’s lawsuit specified no specific damage amount. His complaint only broadly discussed “serious injuries” he had suffered and related medical costs.

In an order dated Feb. 3 of this year, U.S. District Judge Hugh Lawson denied the plaintiff’s motion. Judge Lawson said even though the plaintiff had yet to affix a dollar-amount to his claim, it could be inferred from all available evidence the amount in controversy was more than $75,000. For one thing, the plaintiff previously presented the defendants with copies of his then-current medical bills, which reflected more than $52,000 in expenses. The plaintiff’s medical records further establish he is continuing to receive treatment “and that additional treatment and/or surgery is not only possible but probable.” So, it is more than likely his medical costs, which his lawsuit seeks to recover from the defendants, will be more than $75,000. The case will, therefore, remain in federal court.

 

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Animal control is an often overlooked aspect of law enforcement. Under Georgia law, sheriffs and other local law enforcement officers have a duty “to impound livestock found to be running at large or straying.” But, what happens when a law enforcement officer’s failure to perform this duty leads to the serious injury or death of a human being? The Georgia Court of Appeals recently had to answer this question.

Williams v. Pauley

This tragic case began when a horse strayed onto Highway 27 in Floyd County early one morning. A 911 operator received a call regarding the horse and dispatched a Floyd County police officer to investigate. The officer arrived at the scene and located the horse on the highway’s median. He followed the horse in his police vehicle for a few minutes before the animal “took off.” The officer then approached the horse on foot and gained a tentative hold. Still on the median, the officer walked the horse back towards his police vehicle, where the officer contacted his supervisor on the radio, seeking further direction on how to control the animal.

The supervisor instructed the officer to lead the horse off the median and off the roadway. The officer did so, but the horse subsequently followed the officer as he returned to his vehicle. The officer then went to a nearby gas station to try and obtain a rope or something else to help him control the horse. During this time, the horse ran back out onto the road, colliding with a vehicle and killing the driver inside.

The driver’s estate filed a wrongful death lawsuit against the officer, alleging his negligence in failing to remove the horse from the highway caused the fatal accident. The officer moved for summary judgment, arguing he was entitled to official immunity from suit as the result of his actions. The trial court denied the motion, but a three-judge panel of the Court of Appeals unanimously reversed.

Presiding Judge Gary Blaylock Andrews, writing for the appeals panel, said the officer’s actions on the morning of the accident were discretionary, not ministerial. This is an essential distinction under Georgia law. Law enforcement officers generally have immunity for discretionary acts; that is, actions requiring the exercise of individual judgment based on the given facts of a situation. Conversely, officers do not enjoy automatic immunity for “ministerial” acts requiring them to carry out a “simple, specific duty” spelled out by law or regulation.

Although Georgia law does require law enforcement to “impound” stray horses and other livestock, that does not make it a ministerial act. As Judge Andrews noted, the law does not spell out a specific method by which an officer must impound an animal. It was therefore left to the officer’s “deliberation and judgment.” He attempted to comply with the law, and even if he did so negligently, Judge Andrews said he was nevertheless entitled to official immunity. The Court of Appeals therefore granted summary judgment to the officer, dismissing the complaint made by the victim’s estate.

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Indemnification is an important concept in personal injury law. Basically, if A indemnifies B, and C sues B for negligence and wins, B can then sue A to recover some or all of the cost of paying the damage award to C. Business contracts often contain indemnification clauses to address potential personal injury lawsuits arising from the relationship.

CSX Transportation, Inc. v. General Mills, Inc.

Here is a recent example of how courts apply Georgia law to indemnification clauses. This dispute involved an alleged breach of contract. The parties were CSX Transportation, the railroad company, and cereal manufacturer General Mills, which operates a plant in Newton County. General Mills hired CSX to construct a private “sidetrack” connecting its plant with CSX’s main railroad line. Under the agreement, General Mills had the right to handle some of the “switching” operations—the process of moving and connecting railroad cars to a train—independent of CSX. Accordingly, the contract contained an indemnification clause whereby General Mills “assume[d] all risk of loss, damage, cost, liability, judgment and expense (including attorneys’ fees) in connection with any personal injury” arising from any switching it oversaw.

This clause became an issue after CSX was held liable for an accident on the General Mills’ sidetrack. In 2005, CSX delivered a rail car containing grain to the General Mills plant. Two General Mills employees then performed a switching operation to move the car. In the process, the rail car rolled away and crashed into two other rail cars. One of the employees was seriously injured to the point where he lost the use of his legs.

The employee sued CSX for negligence. Following two jury trials and a settlement conference, CSX ended up paying the employee $16 million in damages. Notably, the second jury found CSX was “100% liable” for the accident.

CSX then sued General Mills, arguing the latter was contractually obligated to indemnify the former for the $16 million judgment paid to the employee. General Mills disagreed and moved to dismiss the lawsuit. And, in a judgment entered on February 3 of this year, U.S. District Judge Thomas W. Thrash, Jr., of Atlanta sided with General Mills.

Judge Thrash explained the indemnification clause at issue did not require General Mills to pay a judgment arising from CSX’s own negligence. Under Georgia law, “for a contract to provide for indemnification for losses stemming from the indemnitee’s negligence, the contract must meet a heightened specificity requirement.” In other words, unless the contract expressly said General Mills was liable for CSX’s negligence, it could not be held responsible. Even though the indemnification clause states General Mills indemnified CSX for “all” risks arising from its switching operations, Judge Thrash said that did not meet Georgia’s “heightened specificity” requirement.

Now, had both CSX and General Mills been at fault—and General Mills was never a defendant in the employee’s personal injury lawsuit—the indemnification clause would have allowed CSX to seek full indemnification from General Mills. But, again, Judge Thrash said Georgia law was clear that, given CSX had been found “100% liable” for the accident, General Mills was under no obligation to indemnify it.

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The death of a child is always a tragedy for the parents. When that death is the result of negligence or medical malpractice, the parents will understandably seek justice against the responsible professionals. But, justice is a more complicated matter when the child dies before birth. A recent decision by a federal judge in Atlanta addresses the difficulty raised when trying to decide when life begins for purposes of the law.

Durden v. Newton County

This sad case arises from a 2012 incident involving a pregnant woman incarcerated in Newton County. An Alabama-based contractor helped provide the woman’s medical care while in prison. The prison and the contractor understood this was a “high-risk” pregnancy.

In March 2012, the woman underwent surgery at a county hospital related to complications from the pregnancy. The woman unfortunately suffered further complications following the surgery. The prison apparently waited several days before returning the woman to the hospital. By then it was too late: the woman’s child was stillborn.

The woman subsequently sued the county and the outside contractor on several grounds under federal and Georgia law. In early 2014, the federal claims were dismissed, leaving only the state-law negligence claims against the outside contractor. The contractor then moved to dismiss these remaining charges. (The case remains before a federal court as the contractor is an out-of-state corporation.)

The most notable element of the motion to dismiss dealt with the legal status of the stillborn child. The woman’s lawsuit sought damages for her child’s “pain and suffering” as well as for his wrongful death. The contractor did not seek dismissal of the wrongful death claim, only the pain and suffering claim. As a matter of law, the contractor said, an unborn child cannot recover for pain and suffering.

U.S. District Judge Richard W. Story sided with the contractor on this point. He explained that a mother could recover damages for wrongful death of an unborn child, but not for that child’s pain and suffering. Wrongful death is governed by a specific law in Georgia separate from those governing other personal injuries. Georgia law does recognize wrongful death actions in cases where “quickening”—the point in time when a fetus “is able to move in its mother’s womb”—has already taken place. (This is a rule specific to Georgia; most states require a “viable” fetus.) “However,” Judge Story added, “quickening only applies to wrongful death claims.”

Only a “person” (or a person’s estate if he or she is deceased) may seek damages for pain and suffering in Georgia. And, according to the Georgia Supreme Court in Peters v. Hospital Authority of Elbert County, “persons” only include those children who are born and survive outside the womb. The Supreme Court expressly declined “to accord legal rights to the unborn without conditioning those rights upon live birth.” Accordingly, Judge Story said the mother could not maintain a pain and suffering claim on her child’s behalf against the contractor.

But, as noted above, the mother can still pursue her claim for the child’s wrongful death as well as her own injuries. Judge Story declined to dismiss most other aspects of the case against the contractor, including a demand for punitive damages. The case has moved to discovery and may still take several years to resolve.

 

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When a child dies on someone’s property as the result of negligence, the property owner and other responsible parties may be held liable for millions in damages. Many property owners take out insurance policies to protect them against such judgments. But how far do these policies extend? A recent federal case arising from the death of a Georgia toddler helps illustrate how insurance helps (or does not help) in such situations.

Moon v. Cincinnati Insurance Company

In March 2009, a two-year-old child died after drowning in a swimming pool located at on a property in Buford. At the time, the child was under the care of a babysitter, who was watching multiple children on the property, where she also lived. The babysitter’s father owned the property.

The parents of the deceased child sued the babysitter, her father and her husband (who also lived at the property) in Georgia state court. At this point the babysitter and her husband asked her father’s insurance company, which issued a policy covering the property, to defend them against the lawsuit. The insurance company initially agreed to do so, but later denied coverage and withdrew its defense. The parents of the deceased child won their claim in state court, receiving a damage award of nearly $10 million, 78% of which was assessed against the babysitter and her husband.

The couple then sued the insurance company in federal court for breach of contract and other allegations related to its denial of coverage. In 2013, U.S. District Judge Thomas W. Thrash, Jr., rejected the couple’s arguments and ruled for the insurance company. The U.S. Eleventh Circuit Court of Appeals affirmed the District Court in a January 2015 decision.

The key issue in this case was whether or not the babysitter and her husband were eligible for coverage under a clause in the father’s insurance policy that applied to “any person while acting as [the father’s] real estate manager.” The insurance company denied coverage after determining the babysitter and her husband were not acting as “real estate managers” for the father. They were simply tenants living on his property. The policy only covered the landlord or his agents, not tenants, as, say, a renter’s insurance policy might.

In response, the babysitter and her husband argued the term “real estate manager” is not precisely defined in the policy. If there is an ambiguity in the wording of an insurance contract, courts generally resolve such ambiguity in favor of the insured. But the courts disagreed. Judge Thrash said “there is no indication the term is ambiguous,” and that under Georgia law, a “real estate manager” is defined as someone “involved in selling or renting houses rather than maintaining and residing in a house.”

The Eleventh Circuit, in its own opinion upholding Judge Thrash, said that to accept the babysitter’s definition of real estate manager “would render meaningless the policy’s stated lack of coverage for tenants of the property.” It would make the insurer liable for “every tenant, family member or friend living in another’s home, who cuts the yard or paints a wall.” Indeed, even the father who owned the property did not consider his daughter and son-in-law to be his “real estate managers.” He had actually purchased the house from them to avoid foreclosure and allowed them to continue living there.

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If you are injured in a car accident as the result of someone else’s negligence, you should be mindful of legal time limits to file a lawsuit against the responsible parties. Under Georgia law, the statute of limitations for filing a personal injury claim is two years “after the right of action accrues,” such as when the car accident took place. But it is not enough to simply file your complaint in court; you must also serve the defendants with your lawsuit before the two-year period expires.

Service is the formal process of notifying a defendant of your lawsuit. If the defendant lives in Georgia, service must be done in person, usually through the local sheriff’s office. As will be explained below, the rules for service are different when the defendant is a non-resident. In any case, improper service may lead to dismissal of your case.

Arias v. Cameron

Here’s a recent case that illustrates how service can affect a personal injury lawsuit. This is an ongoing case, so it should be noted the plaintiff’s allegations have not yet been proven in court.

According to the plaintiff, she was riding her bicycle one day in 2011 when she was struck and seriously injured by a car. She subsequently sued the driver of the car and his employer. The employer was named because the driver had allegedly rented the car in the course of his employment, and the employer was responsible for insuring the vehicle.

At the time of the accident, the driver produced a California driver’s license. When the plaintiff filed her lawsuit in 2013—a few weeks before Georgia’s two-year statute of limitations was set to expire—she accordingly assumed the driver was not a resident of Georgia. Under Georgia law, any non-resident who operates a motor vehicle within the state is presumed to authorize the Georgia Secretary of State to receive service of any lawsuit arising from an accident. Accordingly, the plaintiff believed she had completed service by serving the Secretary of State and sending a copy of the complaint by certified mail to the address on the driver’s license.

But the driver claimed he actually was a Georgia resident at the time of the accident and therefore the plaintiff’s service was improper. If that is true, then the plaintiff must serve him personally—even if he now lives in California—rather than through the Secretary of State. The driver further argued that even if he was a non-resident, the service was still improper because he did not receive the plaintiff’s certified mailing until after the statute of limitations expired.

Once the plaintiff learned of the driver’s claim he was a resident, she immediately attempted to personally serve him in California through a local sheriff’s office. The sheriff made four unsuccessful attempts to serve the driver. Ultimately, the plaintiff had to hire a private process server to wait outside the driver’s residence until he appeared.

The defendant still maintained the improper service required dismissal of the lawsuit. The plaintiff countered with her own motion to dismiss. In Georgia, a plaintiff may voluntarily dismiss and refile a lawsuit within six months, resetting the clock with respect to service. A federal judge sided with the plaintiff. The U.S. 11th Circuit Court of Appeals agreed the plaintiff was well within her rights because, among other things, it was clear the defendant was trying to evade service in an attempt to run out the statute of limitations.

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When there are multiple defendants in a personal injury lawsuit, those defendants may choose to work together in litigating or settling a claim. But sometimes these joint efforts result in additional litigation. One defendant may settle and demand the other pay for part of that settlement. An ongoing case in a Georgia federal court illustrates how these situations can play out.

Gold Cross EMS, Inc. v. The Children’s Hospital of Alabama

This case began in 2009, when a hospital in Georgia asked a hospital in Birmingham, Alabama, to accept one of its patients, a two-year-old burn victim. The Alabama hospital hired an ambulance company to transport the child from the Georgia hospital to a nearby airport. The Alabama hospital sent two of its employees to supervise the child’s care during the transfer. The child was secured to a stretcher during transport.

After arriving at the airport, two ambulance workers removed the stretcher as the two hospital employees monitored the patient’s vital signs. Horrifically, the stretcher tipped over. While the stretcher was quickly uprighted, the damage had been done. A subsequent examination two days later at the Alabama hospital revealed the accident caused a spinal cord hematoma, resulting in the child’s paralysis.

The child’s family sued both the Alabama hospital and the ambulance company for negligence. During this litigation, the two defendants discussed jointly negotiating with the family, but they never signed a written agreement to that effect. Ultimately, the ambulance company agreed to a multi-million dollar settlement. The ambulance company then filed its own lawsuit against the hospital, alleging breach of their joint defense agreement and demanding reimbursement for part of the cost of the settlement. In legal terms, this is known as seeking “contribution.”

On January 8, 2015, a federal judge rejected the ambulance company’s contribution arguments. The judge said the company advances two legal theories in support of its case: the hospital was “vicariously liable” for the acts of its employees at the time of the accident, and it was negligent in its care of the patient during transport. Neither of thee argument support a contribution claim under Georgia law, according to the judge.

Vicarious liability is when an employer is held legally responsible for the acts of its employees. The ambulance company tried to argue its employees were actually working for the hospital at the time of the accident, making the hospital vicariously liable. The judge said even if that were true, that would not support a contribution claim. There must be evidence of an “independent act of negligence” on the part of the hospital. And the judge noted the ambulance company never alleged such an act during the initial litigation with the victim’s family.

While rejecting the contribution argument, the judge said the ambulance company could proceed with its breach of contract claim against the hospital. This arises from the purported joint defense agreement between the two parties. Although no written agreement existed, the judge said it was for a jury to decide whether the parties entered into a valid oral agreement. According to the ambulance company, the hospital’s breach of this oral agreement led it to settle with the victim for more than it would have otherwise paid.

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In 1992, the Georgia Supreme Court held an auto insurance company may be liable if it is “guilty of negligence, fraud, or bad faith” in failing to settle a potential claim against a policyholder. The case involved a woman who was responsible for a car accident. The victim’s attorney presented the driver’s insurance company with an offer to settle her personal injury claims. The offer had a ten-day limit. The insurance company failed to respond. The Supreme Court said the company could be held liable for acting in bad faith, not just for refusing to respond before the deadline, but because it knew its policyholder was responsible for the accident, and the claim was therefore valid.

Owners Insurance Company v. Parsons

Another insurance company attempted to invoke this 1992 case in more recent litigation. Here, the subject is a 2013 automobile accident. Driver A accused Driver B of causing the accident. Driver A then sent Driver B’s insurance company a “time-limited settlement offer” seeking the policy limit of $50,000. The time limit was 30 days.

As in the above case, the insurance company did not accept the offer within the specified time period. But this time, the insurer went on the offensive and sought a declaratory judgment in federal court that it could not be held liable under the 1992 Supreme Court decision for failing to respond. Keep in mind, Driver B has not actually sued the insurance company. (Driver B has sued Driver A and the owner of his car in Georgia state court.) The insurer is essentially trying to preempt possible litigation.

As it turned out, the insurance company acted too quickly. A federal judge dismissed the company’s lawsuit in a December 2014 order. The judge agreed with the defendants—Driver B, who stands to benefit from any damages recovered—that this was a premature action. As a general rule, a federal court can only decide an active controversy. That is, if there was an “imminent” threat of Driver B suing the insurance company, the court could entertain the request for a declaratory judgment to the contrary. But the mere possibility of a lawsuit does not afford the court jurisdiction.

It is true Driver B and the insurance company presently have a “disagreement” over whether it improperly rejected the settlement offer. But the judge explained disagreement about a possible legal question is not the same thing as legal “controversy,” which is required before someone can actually bring a lawsuit. The insurance company “must show that a judicial response to that legal or factual question will resolve an imminent controversy that poses some risk of injury.” This is not to say Driver B won’t sue the insurance company in the future, or even that a settlement may be forthcoming between the parties. Again, the judge simply decided there were no grounds for preempting litigation that Driver B has not actually brought or even threatened.

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A key step in bringing any personal injury lawsuit is deciding what court to file in. While personal injury claims are mostly governed by state law, federal courts have jurisdiction to hear cases where there is “complete diversity” among the parties. This means that none of the plaintiffs can reside in the same state as any of the plaintiffs. For example, if the plaintiff is a Georgia resident and there is one defendant who resides in Florida, there is complete diversity and the case should be heard in federal court. However, if there is a second defendant who also resides in Georgia, the case would be tried in state court. (Corporations usually “reside” in the state of their incorporation, not necessarily where they do business.)

Ishmael v. General Growth Properties, Inc.

Here is an illustration of how courts sort out jurisdiction. This case arises from a toddler injured at a mall in Augusta. The child fell into a water fountain located inside the mall. The child’s mother sued a number of defendants, accusing them of maintaining a “dangerous condition” by locating the fountain near a children’s play area.

This is a premises liability claim governed by Georgia law, which requires the “owner or occupier of land” to “exercise ordinary care” in keeping their property safe. The plaintiff named the mall’s owner, an out-of-state corporation, as a defendant. She also named the mall’s general manager, who is a Georgia resident. Accordingly, the plaintiff initially filed her complaint in Georgia state court.

The defendants had the case removed (transferred) to federal court. But in an order dated December 29, 2014, U.S. District Judge J. Randal Hall of Augusta remanded (returned) the case to state court. The defendants argued the general manager was not a proper party to this case, and the plaintiff only named him in an improper effort to keep her case in state court.

Judge Hall said that at this stage of the litigation, the plaintiff had presented a plausible argument that the general manager might be legally liable for the child’s injuries. The judge noted, “A number of Georgia courts have interpreted the meaning of ‘owner or occupier’ to include those with something less than a legal possessory interest,” such as a manager. In fact, Judge Hall said there is “some uncertainty” whether a store manager can be held individually liable for injuries to patrons. Because of this confusion, Judge Hall said he had to give the plaintiff the benefit of the doubt when determining whether complete diversity exists.

Of course, Judge Hall did not address the merits of the plaintiff’s case. Back in state court, a judge may still decide the general manager cannot be held responsible for the accident. The question for the state court to resolve is whether the general manager “exercised sufficient control” over the mall premises such that he could be held personally liable.

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Under Georgia law, you can only bring a medical malpractice claim against someone you were in a “doctor-patient relationship” with. This does not necessarily mean the doctor must physically examine you. A doctor-patient relationship can exist whenever a physician participates in someone’s diagnosis or treatment, or where the patient seeks and receives assistance of any kind from the physician.

Tomeh v. Bohannon

The Georgia Court of Appeals recently issued two decisions regarding the scope of the doctor-patient relationship. The first case involved the death of a premature newborn. A pregnant mother was taken to an Atlanta-area hospital, where her baby was delivered by Cesarean section and died shortly thereafter. The mother subsequently sued the hospital and several medical providers involved with her son’s delivery.

One of the defendants was the hospital’s on-call pediatrician. The pediatrician never examined or saw the mother or her baby. He did not participate in the delivery or postnatal care. He was not even at the hospital. But because the mother had not selected a pediatrician for the baby, the hospital’s computer automatically designated its on-call pediatrician as the “admitting and attending physician” for record-keeping purposes only. Under hospital protocol, a pediatrician must be designated for the baby even if he dies on the operating room table, as was the case here.

But did that create a patient-physician relationship for purposes of the mother’s lawsuit? No, according to the Court of Appeals. The pediatrician testified in court he never examined or treated the plaintiff or her son. The computer records did not rebut this fact. That was enough for the Court of Appeals, which said, “A plaintiff has to show more than that a doctor was the on-call physician at the time of the patient’s injury.”

Smith v. Rodillo

In the second case, a man went to an emergency room in Elbert County complaining of bladder pain and swelling. The emergency room physician attempted to treat the man and contacted a urologist. The urologist suggested a course of treatment. The man’s own physician later advised he should be admitted to the hospital and examined by a specialist. The physician then contacted the same urologist and reported his findings. The urologist did not examine the patient but did advise the physician on further treatment. The patient ultimately developed serious complications, which led him to file a malpractice lawsuit against the urologist.

A trial judge granted the urologist’s motion for a directed verdict, finding there was no evidence a doctor-patient relationship existed between him and the plaintiff. The Court of Appeals disagreed. Based on the available evidence, the appeals court said, a jury could conclude the urologist entered into a doctor-patient relationship when he gave advice to the emergency room staff and the patient’s regular physician. The urologist may not have personally examined the plaintiff, but the evidence suggests he did participate in the man’s treatment and diagnosis.

Of course, that does not mean the urologist was negligent or liable for malpractice. That is a factual issue for a jury to decide. The Court of Appeals limited its discussion to whether or not the urologist could be sued under this set of facts.