By Alex Stein
Under Georgia statute (that exists in other states as well), allegations of medical malpractice “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” must show “gross negligence” and be proven by “clear and convincing evidence.” OCGA § 51–1–29.5(c). Failure to prove the defendant’s gross negligence by clear and convincing evidence should result in a dismissal of the plaintiff’s suit.
In a very recent case, Johnson v. Omondi, — S.E.2d —-, 2013 WL 6009480 (Ga. 2013), the Supreme Court of Georgia interpreted and applied this provision.
Based on its prior decisions, the Court defined “gross negligence” as the defendant’s “failure to exercise even a slight degree of care.” The Court also ruled that in deciding a motion for summary judgment, the trial judge “must view the evidence presented through the prism of the substantive evidentiary burden”: clear and convincing evidence. Hence, it is the plaintiff’s burden to produce evidence upon which a reasonable jury could determine that the defendant completely failed to deliver the requisite medical care. Specifically, the plaintiff’s expert witness must give an unequivocal account of the defendant’s profound unprofessionalism. Absent such testimony, the trial judge should dismiss the suit summarily.
In the case at bar, a 15-year old patient complaining of chest pain was examined by an emergency room doctor—the defendant—who run a series of tests and ruled out asthma, pericarditis, myocardial infarction, pneumothorax, and, specifically, pulmonary embolism as causes of the pain. Two weeks later, the patient returned to the emergency department, where he died of a pulmonary embolism.
The plaintiffs’ expert testified that the patient’s symptoms presented “classical” indications of pulmonary embolism and that the defendant’s diagnostic measures “did nothing to prove or disprove the presence” of this condition and were “totally irrelevant” and “ridiculous.” The Supreme Court ruled that this testimony constitutes evidence upon which a reasonable jury could find the disputed medical treatment “grossly negligent” under the “clear and convincing” standard. The Court distinguished the case at bar from another case, Pottinger v. Smith, 667 S.E.2d 659 (2008), in which the disputed ER treatment included some unquestionably proper diagnostic measures. The Court explained that under such circumstances a reasonable jury could not find that the ER physician “failed to exercise even slight care and was therefore grossly negligent.”
Hence, the plaintiff’s suit will survive a summary judgment motion only when her expert testifies that the disputed ER procedure—diagnosis or treatment—was totally off mark. Presumably, the same restrictive standard will apply to merit affidavits that need to be filed with the suit.
This standard gives Georgia’s ER physicians an ironclad protection against unmeritorious malpractice suits (and against many meritorious suits as well). Therefore, as I suggested in one of my previous posts, Georgia’s law of medical malpractice needs no far-reaching reforms.