More about the “Emergency Room” Doctrine

March 7, 2014

Abdel–Samed v. Dailey, — S.E.2d —, 2014 WL 696525 (Ga. 2014)

Under Georgia statute, previously discussed here, 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.

Abdel–Samed v. Dailey, — S.E.2d —, 2014 WL 696525 (Ga. 2014), is the statute’s most recent application by the Supreme Court of Georgia.

The plaintiff arrived at a hospital’s emergency room shortly after midnight after accidentally shooting paint thinner into his finger with a high pressure paint sprayer. His finger was examined by two doctors. The doctors decided that the plaintiff must be transferred to another facility for an urgent surgery that required a hand surgeon, but waited till the morning to implement this decision. According to the plaintiff, this delay resulted in amputation of the tip of his finger and reduced range of motion, as well as increased pain and sensitivity, in his finger and hand.

Based on this evidence, the Court held that the doctors’ omission may constitute gross negligence and that the case must go to trial.