In a written opinion of a panel of the Court of Appeals of Georgia (“Appellate Court”) dated October 9, 2013, the Appellate Court held that it may be a question of fact to be determined by the jury whether the medical malpractice claims of the plaintiff arose out of the provision of “emergency medical care” in a hospital emergency room by determining whether the plaintiff was stabilized and capable of receiving medical treatment as a nonemergency patient within the meaning of the Georgia statute, and in cases involving a health liability claim arising out of the provision of emergency medical care in an emergency room, the jury is required to consider the circumstances constituting the emergency and the circumstances surrounding the delivery of the emergency medical care.
The Georgia law that was at issue in the case was OCGA § 51-1-29.5 (c) which provides, in pertinent part:
“In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department . . . no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.”
OCGA § 51-1-29.5 (a) (5) defines “emergency medical care” as: “bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.”
The Appellate Court noted that the statute contemplates that, in some cases, the jury must decide whether the patient at some point had become stabilized and, therefore, was capable of receiving medical treatment as a nonemergency patient. In the case it was deciding, the Appellate Court stated that the issue was whether the medical malpractice plaintiff’s claims arose out of the provision of emergency medical care when she was admitted into the emergency room as a “non-urgent” patient yet she was experiencing a medical condition which included symptoms of significant pain in her feet, coldness in her feet, and the inability to walk. Although the defendant physician’s differential diagnosis included the possibility of an arterial occlusion or deep vein thrombosis, there was evidence to show that the plaintiff did not have either of those conditions at that time. Thus, the defendant’s conduct becomes subject to the ordinary negligence standard of care, rather than the gross negligence standard, if the plaintiff’s condition had improved or at least stabilized, such that she was capable of receiving nonemergency care (an emergency room physician or health care provider may still claim the protection of the gross negligence standard of OCGA § 51-1-29.5 when he or she mistakenly concludes that a patient has become stabilized and capable of receiving medical treatment as a nonemergency patient).
The Appellate Court held that viewing the evidence and all reasonable inferences in the light most favorable to the verdict, whether the plaintiff at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51-1-29.5 (a) (5) was a question for the jury.
Source Howland, et al. v. Wadsworth, et al, Case No. A13A0927.
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