July 2, 2013

162017_132140396847214_292624_nIn case a before the Supreme Court of Georgia that is scheduled for oral argument today, the parents of a 15-year-old who died as a result of pulmonary embolism despite being seen in a hospital emergency room two weeks earlier brought a medical malpractice claim against the emergency room physician, alleging that the physician’s negligence was the cause of their son’s death.

At issue on appeal is the Georgia emergency medical care statute (Official Code of Georgia § 51-1-29.5) that states that in “an action involving a health care liability claim arising out of the provision of emergency medical care 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.”

The Supreme Court of Georgia had defined “gross negligence” in a previous case as “the absence of even slight diligence, and slight diligence is defined…as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care….”

The Underlying Facts

On December 29, 2007, the parents brought their 15-year-old son to a hospital emergency room because their son had pain on the left side of his chest that was worse when he was lying down or he took a deep breath (the teenager had arthroscopic knee surgery eight days earlier). The emergency room physician ordered a chest x-ray and an EKG but found no evidence of an enlarged heart, pneumothorax, pneumonia, or skeletal injury and he interpreted the EKG as normal. The emergency room physician diagnosed the teenager as having pleurisy and prescribed Naprosyn for pain before discharging him to home.

On January 13, 2008, the teenager complained of chest pain and difficulty breathing. He was transported by ambulance to the hospital, where he later died from bilateral pulmonary embolism.

The parents filed their medical malpractice lawsuit, claiming that the care provided to their son in the emergency room on December 29, 2007 deviated from the applicable standard of care and that the deviation caused their son’s death. The parents’ medical experts alleged that the teenager’s symptoms and history were a “classic” presentation of pulmonary embolism and that the emergency room physician failed to order the tests that would have uncovered it.

The trial judge granted summary judgment in favor of the defendant emergency room physician, relying on Georgia’s emergency medical care statute. The parents appealed to the Court of Appeals, which upheld the trial court, finding that Georgia’s emergency medical care statute “clearly distinguishes the actions of emergency department physicians from other healthcare providers in negligence cases, including medical malpractice cases not involving emergency department care, by mandating (1) a higher evidentiary standard (clear and convincing evidence), and (2) a lower standard of care (gross negligence.)” and that the parents “must demonstrate that a genuine issue of material fact existed not as to whether [the emergency room physician] exercised ordinary care…but rather, they must show the existence of ‘clear and convincing’ evidence that [the emergency room physician] did not exercise even slight care.”

Source Johnson, et al. v. Omondi, et al., S13G0553.

If you, a family member, or someone you know are the victim of medical malpractice in Georgia or in another U.S. state, you should promptly obtain the legal advice of a Georgia medical malpractice attorney or a medical malpractice attorney in your state who may be willing to investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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