A 15-year-old boy underwent arthroscopic knee surgery. A week later he presented to the emergency room complaining of chest pain. He was examined by a doctor who ordered an electrocardiogram (“EKG”) and a chest X-ray. The doctor took the boy’s medical and family history and conducted a physical examination. The doctor personally reviewed the EKG and chest X-ray. The doctor ruled out a number of ailments including pulmonary embolism and diagnosed the boy with pleurisy. The boy was discharged with a prescription for an anti-inflammatory pain reliever and instructions to return to the emergency room if his symptom persisted. Two weeks later, the boy did return to the emergency room, but died of a bilateral pulmonary embolism.
The boy’s parents sued the doctor and his employer for medical malpractice. The doctor moved for summary judgment, which the Dougherty County State Court granted. The Georgia Court of Appeals affirmed, noting that the applicable statute required plaintiffs alleging a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department to prove by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.
The Supreme Court of Georgia reversed holding that a fact issue as to whether the physician had been grossly negligent precluded summary judgment. The court held that the appropriate summary judgment question was whether the evidence in the record could support a reasonable jury finding either that the boy’s parents had shown that the doctor’s treatment of the boy constituted gross negligence by clear and convincing evidence or that the boy’s parents had not. The court defined gross negligence as the absence of even that degree of care which every person of common sense, however inattentive he or she may be, exercises under the same or similar circumstances. On the doctor’s motion for summary judgment, the doctor was required to show that there was no genuine issue of material fact, and that a reasonable jury would be unable to find, by clear and convincing evidence, that he was grossly negligent.
The court specifically noted the testimony provided by the doctor and the boy’s parents’ experts. The doctor’s testimony was that he ruled out pulmonary embolism because the boy was not of an age in which that condition was common; the boy’s vital signs were normal, including his pulse oximetry which was “perfect”; and the boy did not have shortness of breath. The doctor went on to explain that the boy’s pain went away after he received an injection of Toradol, a pain medication and if the boy had a pulmonary embolism a shot of Toradol would not have taken away his symptoms.
The boy’s parents submitted expert testimony that the doctor’s actions did not meet the standard of care and that the doctor did nothing that would be appropriate to rule out pulmonary embolism. The expert testimony noted that the boy’s symptoms were classic indications of pulmonary embolism and that the doctor’s diagnostic measures did nothing to prove or disprove the presence of pulmonary embolism. The expert stated that the boy's response to the administration of Toradol was totally irrelevant to investigating whether he had a pulmonary embolism, and the doctor's reliance on it to exclude pulmonary embolism was ridiculous. There was expert testimony that, in order to exclude pulmonary embolism from the doctor’s diagnosis, the standard of care was to administer a CT scan, or a lung scan, which the doctor did not do.
Based on this evidence, the court concluded that a reasonable jury could find, by clear and convincing evidence, that in addressing the boy's symptoms, the doctor acted with gross negligence, i.e., that he lacked the diligence that even careless persons are accustomed to exercise. The doctor’s motion for summary judgment failed to show that there was no genuine issue of material fact and did not show that a reasonable jury would be unable to find, by clear and convincing evidence, that he was grossly negligent. Therefore, the trial court erred in granting the doctor’s motion for summary judgment.
See: Johnson v. Omondi, 2013 WL 6009480 (Ga., November 14, 2013) (not designated for publication).
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care
See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation
See also Medical Law Perspectives, December 2013 Report (to be published Dec. 4, 2014):
When Blood Clots Cause Injury or Death