Georgia Court of Appeals Makes It Almost Impossible to Sue Emergency Room Doctors for Medical Malpractice
In our posting of July 25, 2012 concerning the circumstances under which an emergency room physician could be held responsible for the negligent treatment of a patient, we discussed a State Court decision from Dougherty County in the case of Johnson v. Omandi. On November 27, 2012, the Georgia Court of Appeals issued a decision, which if affirmed by the Supreme Court of Georgia, will make it virtually impossible to successfully sue a doctor working in an emergency room.
In Johnson the patient was brought to the ER by his mother, eight days after undergoing knee surgery. The ER physician “spent several minutes in the exam room” with the patient and his mother, and then ordered a chest x-ray and an EKG, which he interpreted, incorrectly as it turned out. The physician diagnosed an anti-inflammatory and sent the Mr. Johnson home. Two weeks later he was brought by ambulance to the hospital where he died a pulmonary embolism.
The Court of Appeals relied on O.C.G.A. § 51-1-29.5 which requires that a lawsuit arising from emergency medical care must prove “gross negligence” by “clear and convincing” evidence. This standard is much more difficult to meet than the typical tort case, including other medical malpractice cases, which require only that the plaintiff prove ordinary negligence by a preponderance of the evidence. According to the Court, “gross negligence” means slight diligence. Based upon the evidence that the physician spent several minutes with the patient, ordered tests and examined the results, slight diligence was performed, the physician could not be held liable as a matter of law, and the patient’s case was dismissed,
There was a vigorous dissenting opinion which focused on the details of the examination performed by the physician as explained by the plaintiff’s expert witnesses. The experts specifically noted, among other things, that there was (1) an incomplete examination and that the examination that was done was grossly deficient; (2) the doctor misinterpreted the two tests that he ordered; (3) he failed to order tests that would have detected the pulmonary embolism; (4) the doctor failed to follow well established medical principles. The dissent found that there were issues of fact that only a jury could determine.
The dissenting opinion also took the majority to task for making a finding of law on the issue of care in the presence of conflicting, and very persuasive expert testimony to the contrary.
If this opinion is upheld it will be almost impossible to successfully sue an emergency room physician or staff. It would seem that as long as a doctor sees the patient, writes something in the chart and orders some tests, the doctor can’t be touched no matter how poor the examination and tests. To compound matters, at the time of the examination the patient was not in immediate danger of dying. There was plenty of time to examine the patient, order the proper tests, call in other doctors to help with the diagnosis and think through the diagnosis. Indeed, if the same care had been given in a doctor’s office, the case would not have been dismissed. There is no logical reason to have two standards for the same treatment just because one of the doctors works in the ER. Hopefully, this horrible decision will be reversed by the Georgia Supreme Court.