Medical Malpractice in an Emergency Room. What Constitutes an “Emergency” Treatment?

Nguyen v. Southwestern Emergency Physicians, P.C., — S.E.2d —, 2015 WL 6631964 (Ga. 2015)

Under Georgia statute, previously discussed here and 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.

In Johnson v. Omondi, 751 S.E.2d 288 (Ga. 2013), the Georgia Supreme Court relied on prior precedent to define “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. Under this regime, 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. As a corollary, 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. For my analysis of this decision, see here. See also Abdel–Samed v. Dailey, 755 S.E.2d 805 (Ga. 2014) – a case in which the plaintiff managed to produce enough evidence of gross negligence to move the case to the jury. For my discussion of this case, see here.

In the case at bar, the plaintiffs attempted to bypass these rules by disputing the “emergency” nature of the treatment in question. The applicable statute, OCGA § 51–1–29.5, 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” (emphasis added).

The case involved the plaintiffs’ infant daughter who fell off her bad and was taken to the defendants’ emergency facility after developing “a huge discolored bump on her head.” The plaintiffs alleged that “the emergency room personnel committed 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 plaintiffs argued that these actions amounted to a non-emergency treatment and that the emergency rules consequently did not apply.

The Supreme Court disagreed. The Court decided – properly, in my opinion – that the emergency rules may well apply to a provider’s failure to recognize and treat a patient’s condition as an emergency. “The fact that [the plaintiffs’ daughter] was given a non-emergency ranking … and treated as a non-emergency patient,” it explained, “does not prevent these evaluations from being “bona fide emergency services” under the ER statute.” Based on this observation, the Court ruled 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 that “the trial court therefore erred in granting [the plaintiffs] summary judgment on this issue.” Whether the plaintiffs’ daughter received an “emergency” treatment should be decided by the jury.