Higher Standards for Emergency Room Negligence in Georgia

In a 2013 Georgia Supreme Court case, the Court considered a medical malpractice claim in connection with an emergency department visit. The case arose when a woman took her 15-year-old son to the emergency department of a hospital in 2007. The week before the visit, the son had undergone a knee surgery. The son was complaining of chest pain at the ER. A nurse and then a doctor saw him.
The doctor ordered pain medication for the son, as well as an EKG and a chest X-ray. The doctor noted that the son had gone through surgery the week before and also asked about the son’s medical history and conducted a physical exam.
The doctor ruled out a variety of potential ailments and diagnosed the son with pleurisy. He discharged the son with an anti-inflammatory pain relief prescription and told him to come back to the ER if his symptoms continued.
Two weeks later, the boy came back to the ER but died of a bilateral pulmonary embolism. The boy’s parents sued the doctor and his employer for medical malpractice. The doctor moved for summary judgment. The motion was granted. The Court of Appeals found that there was no genuine issue of material fact to counter the doctor’s argument that he couldn’t be held liable under OCGA § 51-1-29.5(c).
This code section provides that, when emergency medical care is provided in a hospital emergency department, a physician cannot be held liable unless his or her actions show gross negligence.
In this case, there was no dispute that the doctor was offering emergency medical care in a hospital emergency department as set forth under OCGA § 51-1-29.5(c). There was a burden on the plaintiffs to show a greater departure from the standards of medical care that they would have had to do in a non-emergency case.
In an ordinary Georgia medical malpractice suit, even a little bit of evidence that the doctor had violated the accepted standard of care would be enough to take the case to a jury. OCGA § 51-1-29.5(c) requires that gross negligence is proven by clear and convincing evidence. Usually the question of whether evidence meets the “clear and convincing” standard is left to the trier of fact (often the jury). However, there are cases where it is appropriate to decide this issue on summary judgment.
The judge in this case had to look at the evidence with an understanding that clear and convincing would be the standard of proof. The issue was whether a jury could reasonably find that the plaintiff proved his case by the quality and quantity of evidence required by law. The standard of proof had to be taken into account without determining credibility.
As used by OCGA § 51-1-29.5, “gross negligence” means the absence of any sort of diligence or even a “slight degree of care,” the care even a careless person would take. The doctor in this case had to show a reasonable jury could not find him grossly negligent.
The appellate court found he could not show this. The doctor had recognized the potential for pulmonary embolism, but he ruled it out because the son was not an age where that would be common and his vital signs were normal. He had diagnosed pleurisy because the son had responded favorably to a pain medication, and if he had something other than pleurisy he wouldn’t have responded to it.
The couple had presented expert testimony that in similar situations, it would not be appropriate to exclude pulmonary embolism given the son’s exhibition of classic indicators. The son’s response to Toradol was totally irrelevant, and the doctor’s decision to exclude pulmonary embolism was ridiculous. The standard of care had required the doctor to take a CT or lung scan. The judgment was reversed.
If a loved one dies due to medical negligence, you may be able to recover compensation for your losses. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
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