Challenge to constitutionality of ER 'gross negligence'.

Position:Medical Law Case of the Month - Case overview

CASE ON POINT: Gliemmo v. Cousineau, S09A0A1807 GASC (3/15/2010)-GA

ISSUE: Virtually all states have good Samaritan laws, which hold that doctors providing emergency care are liable only for gross negligence. In this unusual Georgia case, a patient sought to challenge the constitutionality of a Georgia law which extended the good Samaritan 'only for gross negligence' standard to emergency-room doctors and others following-up on ER care.

CASE FACTS: Carol and Robert Giliemmo brought a medical malpractice suit against emergency room Dr. Mark Cousineau, Emergency Medical specialists of Columbus. P.C., and St. Francis Hospital, Inc. After the defendants answered the complaint, the plaintiffs filed a challenge to the constitutionality of that part of Georgia law which Provides: In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department, obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, 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. The trial court rejected the plaintiffs' constitutional challenge, but issued a certificate of immediate review. The defendants applied for interlocutory review. The Supreme Court of Georgia granted the plaintiffs' application to consider the constitutionality of the Georgia law insulating the doctors designated in the law from liability unless there was clear and convincing evidence of their gross negligence. The plaintiffs contended that the law in question was a special law violative of the uniformity clause of the Georgia Constitution in setting a gross negligence standard of liability for ER doctors. They cited the uniformity clause which provides: Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General assembly may by general law authorize local governments by local ordinance or by resolution to exercise police powers, which do not conflict with general laws. Thus, to violate the applicable constitutional provision, the plaintiffs contended, the statute in question must either be a general law which lacks uniform operation throughout the state...

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