Robert J. Smith and Henry J. Smith, as surviving sons of Barbara Smith and personal representatives of her estate, filed a Georgia medical malpractice action against Phillipe Gadegbeku, M.D., Nabil Muhanna, M.D., and their respective employers. The Plaintiffs alleged the Defendants failed to provide Barbara with proper medical treatment while she was in the emergency department of Northeast Georgia Medical Center, and that this resulted in her suffering irreversible paraplegia and passing away several months later. After trial, a jury found for the Defendants, which the trial court affirmed in its judgment. The Plaintiffs appealed.
OCGA § 51-1-29.5 (c) provides: “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.”
Although the term “gross negligence” is not defined in OCGA§ 51-1-29.5, subsection (b) states “[a]ny legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law.”
OCGA § 51-1-4 provides: “In general, slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. As applied to the preservation of property, the term “slight diligence” means that care which every man of common sense, however inattentive he may be, takes of his own property. The absence of such care is termed gross negligence.”
On appeal, the Plaintiffs contended that the trial court erred by (1) concluding the definition of “gross negligence” in OCGA § 51-1-4 also defines that term in the context of the Emergency Room Statute (OCGA § 51-1-29.5, i.e., “the ER Statute”); (2) providing the pattern instruction on gross negligence; (3) instructing the jury to focus on the entirety of the Defendants’ treatment of Barbara rather than whether specific acts or omissions violated the standard of care; and (4) providing conflicting and confusing instructions on slight care and gross negligence.
The Court of Appeals of Georgia stated in its September 30. 2025 decision: “[A]lthough the Supreme Court of Georgia has supplemented the definition of gross negligence in the medical-malpractice context, the Plaintiffs’ contention that
OCGA § 51-1-4 does not define “gross negligence” in the ER Statute is explicitly refuted by decisions of that Court, which we are bound to follow. The trial court did not err, then, in concluding the definition of gross negligence in OCGA § 51-1-4 also defines that term in the context of OCGA § 51-1-29.5 … the plain language of OCGA § 51-1-29.5 (b) and binding caselaw dictates that OCGA § 51-1-4 defines “gross negligence” in the ER Statute. As a result, the trial court’s inclusion of the pattern instruction on gross negligence is not a misstatement of the law.”
“[A] review of the trial court’s instructions in their entirety demonstrates that it harmonized the definition of gross negligence in OCGA § 51-1-4 and how that legal concept applies in a medical-malpractice action under OCGA § 51-1-29.5 (c). And given these circumstances, the court did not err but accurately instructed the jury in this regard.”
“Based on our review of the trial court’s jury instructions as a whole, rather than isolating any one charge, the Plaintiffs’ claim that the trial court effectively instructed the jury it could render a verdict in the Defendants’ favor if they exercised slight diligence in any aspect of their treatment and care of Barbara lacks merit. But even if we assumed the court’s “slight diligence in providing that care” charge was confusing, it explicitly instructed the jury twice that it was “not necessary for the plaintiff to prove that the defendants were grossly negligent in every way that the plaintiffs claim.” And it is well established that “the jury is presumed to follow the instructions of the trial court absent clear evidence to the contrary.” Here, the Plaintiffs provide no evidence the jury ignored the trial court’s instructions, much less clear evidence that it did so.”
Smith v. Gadegbeku, M.D., A25A0765.
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