A man accidentally shot paint thinner into his finger with a high pressure paint sprayer. Just after midnight, he went to the hospital emergency room. A physician’s assistant examined him and concluded he needed an immediate referral to a hand surgeon and emergency surgery to minimize the degree of secondary injury in his hand and forearm. The hospital did not have a hand surgeon on call. The physician’s assistant told the man that the orthopedic surgeon on call did not like to be disturbed at night, so the man’s surgery would have to wait until the morning. A doctor at the hospital talked on the phone with a hand surgeon at a distant hospital and suggested the man might be transferred there for surgery. The hand surgeon agreed, but no plans to execute a transfer were made at that time. A doctor examined the man and told him that the surgery would not occur until the morning. The man was placed in a storage room to wait. Hospital staff checked on the man periodically throughout the early morning, noting that he continued to complain of pain in his finger and hand. Hospital staff may have contacted two nearer hospitals to find an available hand surgeon. Seven and a half hours after he was admitted, it was agreed that the man would be transferred to the hand surgeon at the distant hospital. The transfer took place. Almost ten hours after the emergency room admitted him, the surgery was performed at the distant hospital.
The man sued the hospital emergency room staff for not transferring him to the hand surgeon in a timely manner. The hospital emergency room staff filed a motion for summary judgment arguing that the man failed to meet the burden established by OCGA § 51–1–29.5, which requires plaintiffs asserting certain health care liability claims arising out of the provision of emergency medical care to prove by clear and convincing evidence that the physician or health care provider's actions showed gross negligence. The Spalding County Superior Court granted summary judgment in favor of the hospital emergency room staff. The Georgia Court of Appeals reversed. The appellate court determined that a question of fact existed as to whether the hospital emergency room staff’s actions in delaying necessary treatment constituted emergency medical care under OCGA § 51–1–29.5(c).
The Supreme Court of Georgia affirmed the appellate court’s reversal of the trial court’s grant of summary judgment in favor of the hospital emergency room staff, but applied different reasoning. The court held that the actions taken by hospital emergency room staff in delaying necessary treatment for the man’s hand injury constituted emergency medical care such that the statute governing immunity arising out of provision of emergency medical care applied, use of the phrase “bona fide emergency services” in that statute referred to genuine or actual emergency services, and a genuine issue of material fact existed as to whether the actions taken by the hospital emergency room staff in delaying necessary treatment for the man’s hand injury constituted gross negligence.
The hospital emergency room staff’s actions in delaying necessary treatment for the man's hand injury constituted emergency medical care such that OCGA § 51–1–29.5(c) applied. The definition of emergency medical care under the statute depended on the actual medical condition of the individual patient, not the manner in which the condition was treated. The court reasoned that because the evidence on summary judgment established without dispute that the doctor’s and physician’s assistant’s actions were taken after the onset of a medical or traumatic condition causing severe pain such that the absence of medical attention could reasonably be expected to result in placing the man’s health in serious jeopardy or in serious dysfunction to his hand, the Court of Appeals erred by finding a question of fact as to the applicability of § 51–1–29.5(c).
The phrase “bona fide emergency services” in the statute was intended to mean genuine or actual emergency services rather than genuine actions of health care providers. Based on this statutory construction, the actions taken by the hospital emergency room staff constituted “bona fide emergency services” and the statute applied. Therefore, the medical malpractice claim was subject to the heightened gross negligence standard.
A genuine issue of material fact existed as to whether the actions taken by the hospital emergency room staff in delaying necessary treatment for the man's hand injury constituted gross negligence. Thus, summary judgment was precluded. Gross negligence can be established and liability can be authorized under the statute where the evidence, including admissible expert testimony, would permit a jury to find by clear and convincing evidence that the defendants caused harm by grossly deviating from the applicable medical standard of care. As a general rule, when facts alleged as constituting gross negligence are such that there is room for a difference of opinion between reasonable people as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury. Even applying the heightened evidentiary burden imposed by § 51–1–29.5(c), from the evidence produced thus far a jury could find clear and convincing evidence that the hospital emergency room staff acted with gross negligence in their efforts to transfer the man to a hand surgeon.
The Georgia Supreme Court affirmed the appellate court’s reversal of the trial court’s grant of summary judgment to the hospital emergency room staff, but applied different reasoning.
See: Abdel-Samed v. Dailey, 2014 WL 696525 (Ga., February 24, 2014) (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, February 2013 Report: Emergency Medical Services: Liability and Immunity for Medical Rescue