Torts
| Publication year | 2016 |
Torts
Phillip Comer Griffeth
Christopher R. Breault
Christopher Barwick Newbern
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This Article surveys recent developments in Georgia tort law between June 1, 2015 and May 31, 2016.1
The Georgia Supreme Court, in Nguyen v. Southwestern Emergency Physicians, P.C.,2 considered the scope and application of Georgia's so-called "ER statute."3 In pertinent part, the ER statute requires plaintiffs who bring medical malpractice claims concerning "emergency medical care" in a hospital emergency department to "prove by 'clear and convincing evidence,' rather than the usual preponderance of the evidence, that the 'providers actions showed gross negligence,' rather than the usual ordinary negligence."4
The plaintiffs in Nguyen took their six-month old baby to an emergency room after she fell off a bed and hit her head. At the hospital,
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a paramedic assigned the baby "priority level 4," meaning that "if no emergency medicine is applied, this person is not going to die or suffer serious injury."5 The baby was sent to a "non-emergency patients" area and examined by a physician's assistant who concluded no other tests were needed, found the baby's condition "stable," and discharged her.6 Days later, the baby stopped breathing, was taken back to the hospital, and was diagnosed with a skull fracture and large subdural hematoma. Due to the hematoma, she sustained severe brain damage. Her parents sued the hospital for medical malpractice and moved for partial summary judgment, arguing the ER statute did not apply.7
The trial court granted the parents' motion, holding that the phrase "emergency medical care" in the statute "requires both the provider's belief that he was providing emergency care, and the patient's . . . symptoms manifesting a medical . . . condition that objectively requires immediate medical attention."8 The Georgia Court of Appeals reversed, finding the evidence created a jury question on whether the child's medical condition "triggered the ER statute."9 The Georgia Supreme Court affirmed.10
The supreme court noted that the ER statute defines "emergency medical care" as "bona fide emergency services" that are "provided in an emergency department" after "the onset of a medical . . . condition."11 According to the court, bona fide emergency services establish an "objective standard" that requires "genuine or actual emergency services," such that a health care provider's subjective belief about the care does not control.12 For instance, the ER statute does not apply to flu shots and other care that, viewed objectively, is not emergency service.13 By contrast, medical services commonly provided in an emergency room, such as "evaluating, classifying, and treating patients," may be "bona fide emergency services" even though the result of the case is "that the patient is diagnosed as not needing . . . emergency treatment."14
The court explained that whether the patient's symptoms manifest a medical condition that objectively requires immediate medical attention
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is also an objective test.15 Under such a test, a jury must consider whether the patient's symptoms as revealed to the medical provider were "sufficiently severe to show that the patient had a medical or traumatic condition that could reasonably be expected to seriously impair her health if not attended to immediately."16 A health provider's subjective belief about a patient's condition, though not controlling, is "relevant."17 Other relevant factors include the patient's medical history and the circumstances of the injury, to the extent known by the provider.18
Applying these principles, the court found no dispute that the baby received bona fide emergency services at "a hospital emergency department."19 Yet, the court found a jury question on whether the baby's manifested symptoms were sufficiently severe to trigger the ER statute.20 In reaching the latter conclusion, the court acknowledged evidence that the baby's condition was deemed by ER personnel to be non-emergent and not severe.21 On the other hand, the court noted evidence that the hospital knew that babies face an increased risk of severe injuries from head trauma, and that the child's mother had described the child's head injury in testimony as "a reddish-purple swelling the size of an apple."22 The court held that the contradictory evidence created a genuine issue of material fact as to whether the ER statute applied.23
Two recent cases dealt with the expert witness competency requirements of Official Code of Georgia Annotated ( O.C.G.A.) section 24-
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7-702(c)(2)(A)24 in medical malpractice cases.25 In Dubois v. Brantley,26 a plaintiff whose pancreas was punctured during a laparoscopic procedure to repair an umbilical hernia brought suit against his surgeon. In support of his claim, the plaintiff offered the testimony of his expert witness, also a practicing surgeon, who testified that no abdominal laparoscopic procedure, if performed within the standard of care, should ever result in a punctured pancreas.27
The defendant-surgeon moved to dismiss the complaint or, in the alternative, for summary judgment, claiming the plaintiff's expert was not competent under O.C.G.A. § 24-7-702(c)(2)(A) to offer expert testimony on the standard of care in the specific surgical procedure. Specifically, the defendant argued that the plaintiff's expert was not competent because the expert had not performed more than one laparoscopic procedure to repair an umbilical hernia in the last five years. The defendant argued this in spite of evidence that, during that same time frame, the expert had performed numerous open (i.e., non-laparoscopic) surgeries to repair umbilical hernias and numerous other abdominal laparoscopic procedures not involving umbilical hernias.28 The trial court denied the defendant's motion, the court of appeals reversed, and a writ of certiorari was issued by the Georgia Supreme Court.29
The supreme court concluded that a careful reading of the statute does "not require that an expert actually have performed or taught the very procedure at issue."30 Rather, the statute requires the expert to have knowledge and experience in the relevant "area of practice or specialty"
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based on the expert having been "regularly engaged in . . . the active practice of such area of specialty" within "at least three of the last five years."31 Thus, "the pertinent question" is whether an expert has an appropriate level of knowledge, as determined by the trial judge, in performing the procedure, rather than whether the expert himself has actually performed it.32 Ultimately, the supreme court held that the trial court had not abused its discretion, and found under the evidence, the "trial court properly could have concluded that [the plaintiff's expert] has experience enough to establish a reliable basis for the opinions that he proposes to render."33
Similarly, Blake v. KES, Inc.34 involved a defendant residential care facility's attempt to exclude a medical doctor's opinion that the failure of the facility staff to timely render CPR to a disabled patient likely caused the patient's death. In Blake, the plaintiffs' adult son had been diagnosed with developmental and mental disabilities and with partial complex seizures. He spent most days at the facility, where he needed daily medication and constant line-of-sight supervision due to his history of leaving his assigned area without notice. One day, the son walked out of the building while his caregiver was out of the room, and a security surveillance video showed him leaning against a van and then falling to the ground. Facility staff discovered him soon after, but there was a delay of a few minutes before they began administering CPR. Paramedics subsequently arrived and took the son to the hospital, but he was pronounced dead shortly after arrival. The emergency room doctor determined the cause of death was "cardiac arrest status post likely seizure."35
The plaintiffs' lawsuit against the facility asserted "negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training."36 The plaintiffs' expert testified that the facility failed to timely administer CPR and, if they had done so, the son would have had "at least [a] 50 percent" chance of resuscitation.37 Though the trial court found this testimony to create a material question of fact on causation, the trial court held that the doctor was not competent under O.C.G.A. § 24-7-702(c)(2)(D) because he did not "supervise, teach, or instruct medical
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support staff for three out of five years.38 Granting summary judgment to the facility, the court held there was "insufficient evidence to support the plaintiffs' claim that [the facility's] failure to promptly administer CPR to [the plaintiffs' son] was a proximate cause of his death."39
The court of appeals vacated.40 Rather than evaluating the expert's qualifications under O.C.G.A. § 24-7-702(c)(2)(A), the court of appeals noted that the statute "applies only in cases of alleged medical malpractice."41 The court explained that a medical malpractice action must "call[] into question the conduct of a professional in his area of expertise," and that "not all injuries that occur in a hospital, nursing home or other health care facility are the result of professional negligence . . . ."42 A court "must look to the substance of an action . . . in determining whether the action is one for professional or simple negligence."43 The court concluded that the plaintiffs' claims "do not allege medical malpractice," emphasizing the facility provided "education, life skills, job assistance, and rehabilitation services" and that its employees involved in the incident were "nonmedical personnel."44 Thus, the court held...
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