The Court of Appeals of Georgia (“Georgia Appellate Court”) held in its opinion dated October 23, 2020 in a Georgia medical malpractice birth injury case where the baby suffered injuries due to shoulder dystocia that occurred during labor and delivery: “Because the injury took place in an obstetrical unit to which the gross negligence standard applies as a matter of law, we conclude that the trial court’s denial of Defendants’ motion for partial summary judgment was in error. OCGA §51-1-29.5 (c) applies to the provision of medical care in an obstetrical unit.”
The Georgia Appellate Court further held: “Because the undisputed evidence in the record demonstrates that there was no factual question that Register provided emergency medical care, as defined by OCGA § 51-1-29.5 (a) (5), to alleviate the shoulder dystocia, the gross negligence standard applies and the Defendants are entitled to summary judgment on that question.”
The Underlying Facts
On March 12, 2012, Kimberly Brown (“Brown”) presented at Wellstar Kennestone Hospital for labor and delivery. Brown labored at the hospital until nurses notified Peggy Register (“Register”), the certified nurse midwife, at 11:04 a.m. that Brown would deliver soon and paged Register at 11:41 a.m. The medical record prepared by Register shows that at 11:51 a.m., a spontaneous vaginal delivery occurred. The delivery note stated that the head was delivered, there was no nuchal cord, and a shoulder dystocia occurred that was resolved within 40 second.
The delivery summary notes state that during the 40-second shoulder dystocia, Register performed standard shoulder dystocia alleviation maneuvers, including the McRoberts maneuver, suprapubic pressure, a rotational maneuver of the anterior shoulder, and delivery of the posterior arm. She also utilized lateral traction in the delivery. As a result of the traction used during the delivery, the newborn had a broken clavicle, caput succedaneum, bruising on the forehead and face, and a permanent injury to her right brachial plexus.
After the plaintiffs filed their Georgia medical malpractice lawsuit, the defendants filed for partial summary judgment regarding the applicable standard of care, arguing that the heightened gross negligence standard set forth in OCGA § 51-1-29.5 applies in this case. The trial court denied the motion, finding that the gross negligence standard did not apply because Brown never presented to the hospital’s emergency department. The trial court’s order further held that an issue of material fact existed as to whether the shoulder dystocia constituted a medical emergency because Register was able to resolve the shoulder dystocia within forty seconds.
Georgia Appellate Court Opinion
OCGA § 51-1-29.5
OCGA § 51-1-29.5 states, in relevant part: “In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or 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.” (emphasis added)
If the gross negligence standard of care described in OCGA § 51-1-29.5 (c) applies in this case, then the Plaintiffs would bear the burden at trial of proving by clear and convincing evidence that the defendants were grossly negligent in their treatment of the shoulder dystocia. “Gross negligence” is defined as the absence of even slight diligence. “Slight diligence” is defined in OCGA § 51-1-4 as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.
The Georgia Appellate Court stated: “The limiting phrase “immediately following the evaluation or treatment of a patient in a hospital emergency department” acts as a spatial and temporal modifier that clearly applies only to care rendered in a surgical suite in an effort to distinguish from routine and planned care provided in a surgical suite … there is no contrary indicia of meaning in OCGA § 51-1-29.5 (c) that suggests the limiting phrase should be construed to either of the other two locations identified in the statute: the “hospital emergency department” and the “obstetrical unit.” Instead, applying the limiting phrase to all locations in the series would result in the absurd requirement that a heightened standard only apply in “a hospital emergency department [ . . . ] immediately following the evaluation or treatment of a patient in a hospital emergency department.” OCGA § 51-1-29.5 (c). Such a construction would render some language mere surplusage.”
The Georgia Appellate Court therefore held: “Because the injury took place in an obstetrical unit to which the gross negligence standard applies as a matter of law, we conclude that the trial court’s denial of Defendants’ motion for partial summary judgment was in error. OCGA §51-1-29.5 (c) applies to the provision of medical care in an obstetrical unit [and] [b]ecause the undisputed evidence in the record demonstrates that there was no factual question that Register provided emergency medical care, as defined by OCGA § 51-1-29.5 (a) (5), to alleviate the shoulder dystocia, the gross negligence standard applies and the Defendants are entitled to summary judgment on that question.”
Source Ob-Gyn Associates, P.A. v. Brown, A20A1447.
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