In its decision filed on November 2, 2015, the Supreme Court of Georgia ((“the Court”) discussed the application of Georgia’s “ER statute” (OCGA § 51-1-29.5) that requires that plaintiffs who bring medical malpractice claims based on “emergency medical care” provided in a hospital emergency department must meet a higher standard and burden of proof to prevail.
Georgia’s ER Statute
OCGA § 51-1-29.5 (c) provides that for certain health care liability claims based on “emergency medical care,” health care providers will be liable only if the plaintiffs prove by “clear and convincing evidence,” rather than the usual preponderance of the evidence, that the “provider’s actions showed gross negligence,” rather than the usual ordinary negligence.
Subsection (d) lists several things the jury in such a case must be instructed to consider, including whether the health care provider knew the patient’s medical history or had a preexisting relationship with the patient and the circumstances of the emergency and the delivery of the emergency care.
The Plaintiffs’ Medical Malpractice Claims
The plaintiffs took their infant daughter, who had fallen off a bed, to the emergency room with what the child’s mother described as a huge discolored bump on her head – a lump the size of an “apple” or “another head.” The plaintiffs’ medical malpractice lawsuit alleged that the emergency room personnel committed medical malpractice in failing to properly evaluate the child and releasing her from the ER without diagnosing and treating her subdural hematoma and skull fracture, which led a few days later to severe brain damage.
The trial court granted partial summary judgment to the plaintiffs, holding that § 51-1-29.5 did not apply to their claim because “emergency medical care” as defined in § 51-1-29.5 (a) (5) “require[es] both the provider’s belief that he was providing emergency care, and the patient’s prior sudden and severe symptoms manifesting a medical or traumatic condition that objectively requires immediate medical attention,” and that neither requirement was met in this case.
The medical malpractice defendants appealed and the Court of Appeals reversed, holding that although the infant was not diagnosed with a serious condition, there was some evidence that she had a medical condition that triggered the ER statute, so it was a question for the jury whether § 51-1-29.5 applies.
The Georgia Supreme Court’s Decision
Georgia’s ER statute 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.” OCGA § 51-1-29.5 (a) (5).
The Court stated that the ER statute establishes an objective standard on the issue of what are “bona fide emergency services”: the health care provider’s subjective belief about what kind of care he was providing the patient or what kind of care the patient needed does not determine whether “bona fide emergency services” were provided (the ER statute may be applied to claims based on the provider’s failure to properly recognize and treat a patient’s condition as an emergency).
The Court stated that the “bona fide emergency services” element precludes a health care provider from benefitting from the protections of the ER statute with regard to care that, viewed objectively, was not emergency service, such as giving routine flu shots at a clinic set up in an ER, but medical services commonly provided in an emergency department, like evaluating, classifying, and treating patients who come in asserting that they require emergency care, will generally be “bona fide emergency services,” even if the result of those services is that the patient is diagnosed as not needing (or no longer needing) emergency treatment.
Although whether the condition of the patient meets the definition of “emergency medical care” is an objective, rather than subjective test, the health care provider’s subjective opinion about the patient’s condition is relevant as evidence of the patient’s condition.
The Court stated that the patient’s actual medical or traumatic condition is determinative – but only as that condition is revealed by the patient’s symptoms. The fact-finder must consider the evidence regarding the symptoms the patient presented and determine whether those symptoms were acute and sufficiently severe to show that the patient had a medical or traumatic condition that could reasonably be expected to seriously impair her health if not attended to immediately. However, symptoms that the patient developed or manifested after the emergency department care at issue are not relevant to this question, even if those later symptoms reveal that at the time the patient was in the ER, she was actually suffering from a life-threatening condition.
The Court noted that a patient who seeks treatment in an emergency room while suffering from a serious but hidden medical condition and displaying no “acute symptoms of sufficient severity” would not receive emergency medical care triggering § 51-1-29.5 (c).
In the case it was deciding, the Court stated that it is undisputed that the infant’s care was provided “in a hospital emergency department” and that the infant was given “bona fide emergency services,” when that phrase is properly understood to focus on the services provided rather than, as the trial court erroneously understood it, to focus on the defendants’ belief that the infant did not require emergency care (the infant was examined and diagnosed by two health care providers tasked with triaging and treating patients in the emergency department).
The Court held that the record shows a genuine issue of material fact as to whether the heightened proof standards set forth in OCGA § 51-1-29.5 (c) apply in this case, and the trial court therefore erred in granting summary judgment on this issue.
Source Nguyen, et al. v. Southwestern Emergency Physicians, P.C., et al., S15G0621.
If you or a loved one may have been injured (or worse) as a result of emergency room negligence in Georgia or in another U.S. state, you should promptly seek the legal advice of a Georgia medical malpractice attorney or a medical malpractice attorney in your state who may investigate your emergency room negligence claim for you and represent you in an emergency room malpractice case, if appropriate.
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