In a Georgia medical malpractice case decided on November 14, 2013, the Supreme Court of Georgia (“Georgia Supreme Court”) held that the trial court was wrong in entering summary judgment in favor of the medical malpractice defendant and that the Georgia Court of Appeals was wrong in upholding the summary judgment on appeal.
The issue before the Georgia Supreme Court was whether the Court of Appeals properly applied the heightened standard for a medical malpractice claim arising out of emergency medical care provided in a hospital emergency department, as set forth in OCGA § 51-1-29.5 (c).
OCGA § 51-1-29.5 (c) provides, “In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient 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.”
“Gross negligence” in the medical malpractice context in Georgia, as opposed to ordinary negligence, is the absence of even slight diligence, and slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.
“Clear and convincing evidence” is a more stringent standard than preponderance of the evidence and requires a greater quantum and a high quality of proof.
In the case it was deciding, the Georgia Supreme Court stated that the medical malpractice defendant’s motion for summary judgment was required to show that there was no genuine issue of material fact, and that a reasonable jury would be unable to find, by clear and convincing evidence, that he was grossly negligent, which the Georgia Supreme Court concluded “This he cannot do.”
The Underlying Facts
A mother took her 15-year-old son to a hospital emergency department on December 29, 2007 (her son had undergone arthroscopic knee surgery a week earlier). In the emergency department, the teenager complained of chest pain, was seen by a nurse, and then examined by the medical malpractice defendant. The defendant doctor ordered pain medication, an EKG, and a chest x-ray, which he interpreted himself. The defendant doctor ruled out asthma, pericarditis, myocardial infarction, pneumothorax, and pulmonary embolism as causes of the teenager’s pain. He diagnosed pleurisy and discharged the teenager from the hospital with a prescription for an anti-inflammatory pain reliever and instructions to return to the emergency department if his symptoms continued. Two weeks later, the teenager returned to the emergency department, but died of a bilateral pulmonary embolism.
The defendant doctor testified in the medical malpractice case that he recognized the potential for pulmonary embolism and that it was part of his differential diagnosis but he ruled it out because the teenager was not of an age in which that condition was common; his vital signs were normal, including his pulse oximetry; and, he did not have shortness of breath. Furthermore, the medical malpractice defendant testified that the basis for his diagnosis of pleurisy was the teenager’s pain relief after he was given the pain medication Toradol, and that if the teenager had a pulmonary embolism, the Toradol would not have relieved his pain.
The plaintiff’s medical expert testified that the teenager’s symptoms were classic symptoms of pulmonary embolism and that the defendant’s diagnostic measures in response to those symptoms did nothing to prove or disprove the presence of pulmonary embolism. The expert further testified that the teenager’s response to the Toradol was totally irrelevant to investigating whether the teenager had pulmonary embolism and that the defendant’s reliance on it to exclude pulmonary embolism was ridiculous. The expert testified that in order for the defendant to exclude pulmonary embolism from his diagnosis, the standard of care required the defendant to administer a CT scan, or a lung scan, which he did not do.
The Georgia Supreme Court stated, “Given this evidence, a reasonable jury could find, by clear and convincing evidence, that in addressing [the teenager’s] symptoms, [the defendant] acted with gross negligence, i.e., that he lacked ‘the diligence that even careless men are accustomed to exercise.’”
The Georgia Supreme Court therefore held, “It was error for the trial court to grant [the defendant’s] motion for summary judgment, and the judgment of the Court of Appeals affirming that decision must be reversed.”
Source Johnson et al. v. Omondi et al., S13G0553.
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