Emergency Room Negligence in Georgia: When Rushed Care Causes Harm

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A patient hurt by care in a Georgia hospital emergency department faces a heavier burden than the ordinary medical malpractice plaintiff. Under OCGA 51-1-29.5, a physician or health care provider is not liable for emergency care unless the patient proves gross negligence by clear and convincing evidence. Whether that standard applies turns on the patient’s condition as the symptoms revealed it, and even under it the Supreme Court of Georgia has twice held that the evidence could let a jury find gross negligence.

What the Statute Covers

The statute applies to “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,” and in such a claim “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” (OCGA 51-1-29.5(c)). “Emergency medical care” means “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,” and 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)).

In such an action, the court must instruct the jury to consider, with all other relevant matters, whether the person providing care had the patient’s medical history or could obtain a full one, including preexisting conditions, allergies, and medications; the presence or lack of a preexisting relationship between the provider and the patient; the circumstances constituting the emergency; and the circumstances surrounding the delivery of the emergency care (OCGA 51-1-29.5(d)).

The Statute Survived a Constitutional Challenge

In Gliemmo v. Cousineau, 287 Ga. 7 (2010), the plaintiffs argued that subsection (c) was an unconstitutional special law, violated equal protection, and was too vague. The Supreme Court, over three dissents, rejected each argument. It held that the statute is a general law, that “although OCGA § 51-1-29.5 (c) raises the burden of proof in certain cases, it does not deprive them of the right to a jury trial or any other fundamental right,” and that the phrase gross negligence “has a commonly understood meaning, and needs no specific definition within the statute,” quoting Rouse v. Department of Natural Resources, 271 Ga. 726 (1999). The Court explained that under OCGA 51-1-4, gross 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.”

What Gross Negligence Requires in Practice

Johnson v. Omondi, 294 Ga. 74 (2013), applied the standard on summary judgment. A 15-year-old came to an emergency department with chest pain a week after arthroscopic knee surgery. The physician ordered pain medication, an electrocardiogram, and a chest x-ray, ruled out pulmonary embolism, diagnosed pleurisy, and discharged the patient; two weeks later the teenager died of a bilateral pulmonary embolism. The trial court and a plurality of the Court of Appeals held for the physician. The Supreme Court reversed, writing that the clear and convincing standard must be taken into account on a motion for summary judgment and that, in the words of Howard v. Pope, 282 Ga. App. 137 (2006), which it quoted, the question is “whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown [the required element] by clear and convincing evidence or that the plaintiff has not.” The plaintiffs’ experts testified that the symptoms were “classical” indications of pulmonary embolism, that the patient’s response to the pain medication was “totally irrelevant” to whether the patient had one, and that the standard of care required a CT scan or lung scan to exclude it. The Court held that “a reasonable jury could find, by clear and convincing evidence, that in addressing Shaquille’s symptoms, Dr. Omondi acted with gross negligence, i.e., that he lacked ‘the diligence that even careless men are accustomed to exercise.'” It distinguished a decision in which an emergency physician ordered the diagnostic test that suited the symptoms and relied on another professional’s reading of it, and it stated that the requirement of a “slight degree of care” does not mean a physician need provide “merely ‘some medical care.'”

In Abdel-Samed v. Dailey, 294 Ga. 758 (2014), a patient who had accidentally shot paint thinner into a finger with a high-pressure paint sprayer arrived at a hospital just after midnight, and a physician assistant concluded that the patient needed an immediate referral to a hand surgeon and emergency surgery. The hospital had no hand surgeon on call. A hand surgeon at another hospital had agreed to take the patient, but no one called that surgeon until 7:33 a.m., about seven and a half hours after the patient arrived, when the transfer was accepted. The Court held that the statute applied because the defendants provided actual emergency care, and it held that, even under the heightened burden, “from this evidence a jury could find clear and convincing evidence that defendants acted with gross negligence in their efforts to transfer” the patient. It affirmed the reversal of summary judgment for the defendants.

Was It an Emergency at All?

Whether the statute applies is itself an objective question. Abdel-Samed held that “bona fide emergency services” means “genuine or actual emergency services,” not services rendered in good faith. In Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75 (2015), parents brought a six-month-old to an emergency department after a fall from a bed, with what the mother described as a bump the size of an apple or “another head.” A paramedic triaged the child and a physician assistant discharged the child without a skull x-ray or head CT scan; a few days later the child suffered severe brain damage from a subdural hematoma and skull fracture. The trial court held for the plaintiffs that the statute did not apply. The Supreme Court affirmed the Court of Appeals’ reversal, explaining that the statute “may be applied to claims based on the provider’s failure to properly recognize and treat a patient’s condition as an emergency,” that the patient’s condition, “as that condition is revealed by the patient’s symptoms,” is determinative, and that the provider’s own opinion is relevant only as evidence of the condition. 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.” Symptoms that appear after the emergency department care are not relevant to whether the statute applies, even if they reveal a life-threatening condition. The factfinder decides whether the symptoms were acute and severe enough, so the applicability of the statute remained a jury question.

Frequently Asked Questions

Does the heavier standard protect the hospital, not only the doctor?
Yes. The statute applies to any “physician or health care provider,” and a health care provider includes a licensed health care institution such as a hospital, as well as a registered nurse and the employees, independent contractors, and agents of a provider acting within the scope of that relationship (OCGA 51-1-29.5(a)(8), (10), (c)).

Can the hospital be liable for an emergency physician who is not its employee?
A hospital that posts the statutory independent-contractor notice, or obtains a signed acknowledgment from the patient or the patient’s representative, is not liable in tort for a health care professional’s acts or omissions unless an actual agency or employment relationship exists between them (OCGA 51-2-5.1(b)-(d)).

How long is there to sue?
Two years after the date on which the injury or death arising from the negligent or wrongful act or omission occurred, and in no event more than five years after the act or omission itself (OCGA 9-3-71(a), (b)).

How long does a young child injured in an emergency department have?
A child injured before age five has two years from the fifth birthday to bring a medical malpractice action, and in no event may the action be brought after the tenth birthday (OCGA 9-3-73(b), (c)(2)(A)).

  • OCGA 51-1-29.5(a)(5), (8), (10), (c), (d); OCGA 51-1-4 (as quoted in Gliemmo); OCGA 51-2-5.1(b)-(d)
  • Gliemmo v. Cousineau, 287 Ga. 7 (2010); Rouse v. Department of Natural Resources, 271 Ga. 726 (1999) (as quoted in Gliemmo)
  • Johnson v. Omondi, 294 Ga. 74 (2013); Howard v. Pope, 282 Ga. App. 137 (2006) (as quoted in Omondi)
  • Abdel-Samed v. Dailey, 294 Ga. 758 (2014)
  • Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75 (2015)
  • OCGA 9-3-71(a), (b); OCGA 9-3-73(b), (c)(2)(A)

Disclaimer

This article provides general information about emergency room negligence claims under Georgia law. It is not legal advice, is not medical advice, and does not create an attorney-client relationship. Whether a claim meets the heightened standard depends on the medical evidence and the specific facts. A person harmed by emergency care should seek medical care and consult a licensed Georgia attorney promptly about the particular situation.

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