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Roadblocks to Medical Malpractice Actions Against Emergency Medicine Doctors in Georgia

In 2005 the Georgia Legislature enacted what has been come to be known as “tort reform.” The overall impact of that legislation was to make it more difficult for people injured as a result of medical negligence to obtain compensation for their losses. One important restriction involves physicians who provide “emergency” medical care. In 2010 the Georgia Supreme Court confirmed that this provision of the law was constitutional. There are, however, several unanswered questions with respect to the applicability of the law.

The emergency medicine provision imposes a draconian standard that must be met to prove medical negligence. First, the injured party must prove his or her case by “clear and convincing evidence.” While this standard is less strict than the “beyond a reasonable doubt” standard applied in criminal cases, it is a far harder standard to meet than “preponderance of the evidence”, which applies to all other civil cases, including medical malpractice cases not involving emergency situations.

The second requirement is that the injured party must prove “gross negligence”, which Georgia law interprets to be a lack of slight care and diligence. This is an extraordinarily difficult standard to satisfy, especially as compared to the standard applied to all other medical malpractice cases, which is whether the doctor met the “standard of care”, which means that level of care that a reasonable physician would provide in like or similar circumstances.

While the statutory requirements would appear to make it very, very difficult to win a medical malpractice case against an emergency room physician for emergency treatment, the Georgia appellate courts have not yet addressed one important issue: what constitutes “emergency medical treatment” giving rise to the enhanced burdens placed on those injured.

Rather than looking at what is included in the definition of “emergency medical treatment,” it is more helpful to look at what does not fall within that definition. O.C.G.A. ยง51-1-29.5(a)(5) specifically provides that “the term [emergency medical treatment] does not include medical care 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.” An example of how this exception may work may be helpful. Assume a woman comes to the Emergency Room complaining of pain in the lower right side of her abdomen. The doctor runs some tests, gives her an IV, and sends her home a few hours later. The next day the patient dies from a ruptured appendix. Everyone agrees that if the doctor had properly diagnosed appendicitis a surgeon could have been called, the patient would have received the operation she needed and she would not have died. The doctor also admits that the patient was “stable” when he discharged her. Indeed, he would be hard pressed to deny that she was stable, since it is Medicine 101 that you don’t send an unstable patient home from the emergency room.

Is this scenario, the medical malpractice lawyer for the patient’s family would claim that the “emergency treatment” statute doesn’t apply because the doctor admitted that the patient was stable, that there was time to take the patient to the operating room and have the surgeon operate on a non-emergency basis.

In a future post we will show how two trial courts in Georgia addressed this situation. However, until the Georgia Court of Appeals and the Georgia Supreme Court decide this issue, the answer is up in the air.