Suing a Hospital for Employee Negligence in Georgia

Published Read 7 min read

On this page

Whether a hospital answers for the person who harmed a patient depends first on who employed that person. Georgia law lets a hospital that follows a notice statute avoid liability for a health care professional who is an independent contractor, it lets a patient reach the hospital when the professional was its actual agent or employee, and it treats a hospital worker’s simple mistakes differently from professional judgments.

The Independent Contractor Notice

OCGA 51-2-5.1(b) provides that, “[n]otwithstanding the provisions of Code Section 51-2-5, no hospital which complies with the notice provisions of either subsection (c) or subsection (d) of this Code section shall be liable in a tort action for the acts or omissions of a health care professional unless there exists an actual agency or employment relationship between the hospital and the health care professional.” A hospital complies in one of two ways. It may post a notice that is conspicuous, in the hospital lobby or a public area, in print at least one inch high, with language substantially similar to the statute’s text stating that some or all of the health care professionals performing services in the hospital “are independent contractors and are not hospital agents or employees” (OCGA 51-2-5.1(c)). Or it may have the patient or the patient’s personal representative sign a written acknowledgment with substantially similar language (OCGA 51-2-5.1(d)). A compliant notice is sufficient “even if the patient or the patient’s personal representative did not see or read such notice for any reason, including but not limited to medical condition or language proficiency” (OCGA 51-2-5.1(e)).

Whether a professional is an actual agent, an employee, or an independent contractor “shall be determined by the language of the contract between the health care professional and the hospital.” Without a contract, or if it is unclear or ambiguous, a professional is the hospital’s employee or actual agent only if it is shown by a preponderance of the evidence that the hospital “reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results” (OCGA 51-2-5.1(f)). The statute lists factors that may show a right of control, such as that the professional receives substantially all the employee benefits of actual employees and that the hospital directs the details of the work step by step (OCGA 51-2-5.1(g)).

In Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537 (2013), a patient with a cardiac history and chest pain was treated in a hospital emergency room by a physician employed by a separate medical group, not the hospital, and died of a heart attack two days later. The hospital had posted the statutory notice in a hallway outside the trauma room. The widow argued that an issue of fact remained on whether it was posted in a public area, relying on an affidavit from the widow’s lawyer. The Court of Appeals held that the affidavit was conclusory and affirmed summary judgment for the hospital.

Apparent Agency

Before the notice statute’s protection is reached, a patient may look to the doctrine of apparent agency. In Richmond County Hospital Authority v. Brown, 257 Ga. 507 (1987), a patient injured in a collision was treated in a hospital’s emergency room by physicians who the hospital contended were independent contractors. The Supreme Court of Georgia, over one dissent, affirmed the Court of Appeals’ holding that the doctrine applies to a hospital’s emergency room. Under the Restatement rule it adopted, a principal that represents another as its agent, and so causes a third person to rely justifiably on that agent’s care or skill, answers for the agent’s lack of care as if the agent were its own; the standard is objective, and a patient’s belief alone is not enough. The Court concluded: “If they can prove the hospital represented to Isiah Brown that its emergency room physicians were its employees and that he therefore justifiably relied on the skill of the doctors but suffered injury due to the legal insufficiency of their medical services, the hospital may be held liable therefor.”

Simple Negligence by Hospital Staff

A hospital worker’s simple mistake is not professional malpractice, and the difference matters because professional malpractice claims carry an expert affidavit requirement (OCGA 9-11-9.1). In Lamb v. Candler General Hospital, Inc., 262 Ga. 70 (1992), a hospital allegedly used the wrong disposable replacement parts in a cataract instrument despite the manufacturer’s warning, and the irrigation system overheated and injured the plaintiff’s eye. The Supreme Court held that no expert affidavit was needed, writing that “[m]edical malpractice exists only where the act or omission by [a] professional requires the exercise of expert medical judgment,” quoting Jones v. Bates, 261 Ga. 240 (1991), and that “the failure to replace disposable parts in the instrument involved in this case, as required for its safe performance, creates an issue of simple negligence by hospital employees for which the hospital may be liable.”

In Dent v. Memorial Hospital of Adel, 270 Ga. 316 (1998), a 15-month-old on a pediatric apnea monitor stopped breathing again and no one noticed for several minutes; the child died four days later. The evidence conflicted on whether the alarm failed to sound, whether the nurses failed to turn the alarm on, and whether the crash cart lacked pediatric items. The trial court told the jury that a verdict for the plaintiffs would be unlawful if the hospital’s employees committed no professional negligence. By a vote of four to three, the Supreme Court reversed: “Whether the negligence alleged by a plaintiff is ordinary negligence or professional malpractice is a question of law,” and “the failure to operate equipment correctly or in accordance with a doctor’s instructions or to keep certain equipment on hand is only ordinary, not professional, negligence.” The charge conflicted with the instructions on ordinary negligence and was harmful.

A late claim of this kind can still be timely. In Tenet HealthSystem GB, Inc. v. Thomas, 304 Ga. 86 (2018), a patient arrived at a hospital emergency room in a cervical collar after a collision, was discharged after a CT scan showed no fracture, and, while waiting for a ride, became unresponsive; a later MRI showed a fracture and dislocation, and the patient was left a quadriplegic. The complaint, filed shortly before the two-year limitation period expired, alleged that hospital personnel removed the collar and that two doctors were negligent. More than a year later the patient added a claim against the hospital for a nurse’s removal of the collar in violation of hospital policy. The Supreme Court held that the new claim related back under OCGA 9-11-15(c) because it arose out of the same conduct, transaction, or occurrence, sharing with the original complaint what the Court, borrowing the phrase from Mayle v. Felix, 545 U.S. 644 (2005), called a “common core of operative facts,” and that the change of legal theory did not prevent relation back. The Court noted that the hospital argued the claim was really one of professional negligence requiring an expert affidavit, and it expressed no opinion on that issue.

Frequently Asked Questions

Does the hospital’s paying a doctor by the hour make the doctor its employee?
Not by itself. The factors that may not be considered in deciding control include the hospital’s payment on an hourly basis, its provision of facilities or equipment, and its billing of the professional fees (OCGA 51-2-5.1(g)).

Does the notice statute protect the hospital from its own nurses’ mistakes?
No. The protection does not apply where “there exists an actual agency or employment relationship between the hospital and the health care professional” (OCGA 51-2-5.1(b)).

Is the hospital responsible when a patient’s own doctor admits the patient?
The Supreme Court noted in Richmond County that in that situation “there is no representation or holding out by the hospital to the patient.”

Can the doctor’s medical group be added after the limitation period?
In Hunter, the Court of Appeals affirmed the denial of a late motion to add the physician’s employer, because there was no evidence that the employer received notice of the lawsuit itself within the limitation period.

  • OCGA 51-2-5.1
  • Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537 (2013)
  • Richmond County Hospital Authority v. Brown, 257 Ga. 507 (1987)
  • Lamb v. Candler General Hospital, Inc., 262 Ga. 70 (1992); Jones v. Bates, 261 Ga. 240 (1991) (as quoted in Lamb)
  • Dent v. Memorial Hospital of Adel, 270 Ga. 316 (1998)
  • Tenet HealthSystem GB, Inc. v. Thomas, 304 Ga. 86 (2018); Mayle v. Felix, 545 U.S. 644 (2005) (as quoted in Tenet); OCGA 9-11-15(c); OCGA 9-11-9.1

Disclaimer

This article provides general information about hospital liability under Georgia law. It is not legal advice, is not medical advice, and does not create an attorney-client relationship. Whether a hospital is liable depends on the professional’s relationship to the hospital, the notice it gave, and the specific facts. A person harmed in a hospital should seek medical care and consult a licensed Georgia attorney promptly about the particular situation.

Related posts:

  1. Hotel Room Injuries in Georgia A hotel guest's injury claim in Georgia draws on the premises statute, the innkeeper article that sets a hotel's duties toward its guests and their property, and, for an injury......
  2. Bridge and Overpass Failure Claims in Georgia When a Georgia bridge or overpass fails, the injured person may have claims against the public body that owns it and against the firms that designed or built it, and......
  3. Exotic Animal Attacks in Georgia: Ownership and Liability A person attacked by an exotic animal in Georgia relies on a rule set by a 1935 decision about a baboon. That year a baboon escaped from a private zoo......
  4. Power Tool Accidents in Georgia: Guard Failures and Safety Defects A person cut by a saw whose guard failed, or that was sold without one, has a Georgia claim against the maker that asks whether the design was defective. The......
  5. Telemedicine Malpractice in Georgia: Virtual Care and Real Liability When care delivered by video or phone goes wrong, the claim is still a malpractice claim, and the Georgia Composite Medical Board has written down conditions that a physician must......
  6. Airbnb and Vacation Rental Injury Claims in Georgia A guest hurt at a Georgia short-term rental can look to the host who owns or runs the property, to the platform that took the booking, and to the insurance......
  7. Hand and Wrist Injuries: Impact on Work and Daily Life in Georgia A broken wrist or hand can keep a person away from work for weeks, and some injuries leave stiffness or a deformity that lasts. MedlinePlus, the health information service of......
  8. Foot and Ankle Injuries from Georgia Pedestrian Accidents The American Academy of Orthopaedic Surgeons (AAOS) names a motor vehicle collision among the causes of injuries to four parts of the foot and ankle: the ankle bones, the talus,......
  9. Future Medical Expenses in Georgia: Proving Lifetime Care Costs After a serious injury, the damages claim can include care that has not been provided yet. Georgia law answers the proof questions for that care in several statutes. The future......
  10. Hearing Loss from Georgia Car Accidents: Airbag Deployment Injuries An airbag that inflates in a crash releases a brief, intense pressure wave, and published medical reports have linked deployment to ear injuries, including a perforated eardrum, hearing loss, ringing......
  11. Venue and Jurisdiction in Georgia Personal Injury Cases Where a Georgia injury case is filed depends on which kind of court may hear it, whether that court has power over the defendant, and in which county the case......
  12. Nightclub and Bar Security Failures in Georgia For a patron assaulted at a Georgia bar or nightclub, the date the cause of action arose decides which rules govern the claim. For a cause of action arising on......
  13. Traffic Signal Malfunction Claims in Georgia When a crash follows a traffic signal that showed the wrong indication, flashed, or could not be seen, a Georgia claim depends on what the Code tells a driver each......
  14. Bicycle Accidents Involving Children in Georgia A child hurt on a bicycle is measured against a different statutory standard of care than an adult, a statute says a helmet violation is not evidence of negligence or......
  15. Birth Injury Malpractice in Georgia: Cerebral Palsy and Erb’s Palsy Claims A child who is born with an arm that will not move, or who is later diagnosed with cerebral palsy, leaves a family asking whether the delivery caused it and......
  16. How Georgia’s Collateral Source Rule Protects Your Recovery When health insurance paid part of an injured person's medical bills, what the jury may hear about those payments in Georgia depends on when the claim arose. For causes of......

Leave a comment

Your email address will not be published. Required fields are marked *