Many states are trying to carve out malpractice caps and different standards of care for emergency room doctors in medical malpractice cases.
The thinking starts out okay. Emergency department doctors should be given the benefit of the doubt because things are happening so quickly. But ER doctors are always getting the benefit of the doubt from jurors. There is statistical evidence of this.
More importantly, the standard of care already bakes in the fact that things are sometimes happening at the speed of light in the ER. That is why reasonableness is always based on all the facts and circumstances.
What Is Georgia Law on Claims Against an ER?
Georgia falls headfirst into this mess by creating a new standard of care for doctors and other health care providers rendering emergency care, requiring clear and convincing evidence that the health care provider’s actions showed “gross negligence.”
People, that is a hill to climb. Clear and convincing evidence is less than the criminal “beyond a reasonable doubt standard.” but it is greater than the standard in every tort claim: would the reasonable doctor/lawyer/plumber/Indian chief have done what that person did. So if a plaintiff is suing for emergency medical care, the burden of proof is much higher. On top of that, Georgia law requires the doctor or other health care provider to be “grossly negligent” in the care of the patient.
What Is Emergency Care?
One big issue is defining emergency care. States that have jumped into the Serbonian Bog of thin-slicing the standard of care we owe each other have different opinions in how to approach defining emergency care. Georgia defines “emergency medical care” by this statute that states as follows:
Bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.
So the law requires the treatment of acute injuries that place the patient’s health in jeopardy as opposed to just granting the ER umbrella coverage under this statute. Other states determine it by triage assessment. This is one of those things that makes sense until you dig into the nuance of it. Then you are wondering why the law was ever created in the first place.
But the Georgia courts that have interpreted this statute have been liberal in those first two words: bona fide. This is going to be viewed expensively, regrettably, and go beyond the truly emergency part of the care and bleed into the ordinary diagnosis and treatment you get when you go to the emergency department.
Georgia Emergency Room Malpractice Verdicts and Settlements
Below are stories of settlements and verdicts in ER cases in Georgia just to give you the flavor of the possible value of these cases.
YEAR / STATE
CASE / INJURY SUMMARY
A 23-year-old man presented to the emergency room complaining of chest pain. The ER physician and physician’s assistant examined him. They discharged him less than three hours later. The man died the following morning. His cause of death was an aortic dissection. The man’s parents alleged that the ER physician and physician’s assistant’s negligence caused his death. They claimed they failed to inquire about his chest pain, appreciate his abnormal EKG, and order a CT scan before prematurely discharging him. The defense denied liability. They argued that they provided an appropriate standard of care. The Clarke County jury awarded the family $1,250,000.
$1,250,000 – Verdict
2019 – Georgia
A woman was brought to the emergency room after overdosing on beta-blockers and calcium channel blockers. The ER physician accidentally catheterized her femoral artery instead of the vein. Upon being admitted to the ICU, the woman went into cardiac arrest. The pulmonologist ordered the administering of vasoactive drugs via the femoral catheter. The following day, a nurse noticed that the woman’s leg was pulseless. This prompted the pulmonologist to order a venous Doppler study. It revealed that the ER physician mistakenly placed the femoral catheter in the woman’s femoral artery rather than the vein. He then had the vasoactive medication order terminated. The woman developed right leg ischemia. As a result, she underwent a below-the-knee amputation. The woman alleged that the physicians’ negligence caused her permanent injuries. She claimed the ER physician failed to properly locate the femoral artery. The woman also claimed the pulmonologist failed to timely consult a vascular surgeon and failed to timely treat her ischemia. A Fulton County jury awarded the woman $4,700,000.
$4,700,000 – Verdict
2016 – Georgia
A 60-year-old woman presented to the emergency room with nausea, vomiting, headaches, and high blood pressure. The ER physician suspected food poisoning because the woman and her husband were eating at a Mexican restaurant several hours earlier. He treated her for gastroenteritis and provided follow-up care instructions. Upon her release, the woman’s blood pressure and headaches had worsened. She stayed at home for the subsequent week. The woman then presented to the emergency room after being unable to move her mouth or stand. She was diagnosed with a massive stroke caused by an aneurysm rupture. The woman was left wheelchair-bound. She also required a feeding tube and round-the-clock care. The woman alleged that the ER physician’s negligence caused her permanent injuries. She claimed he improperly assessed her condition. The woman argued that proper assessments would have allowed her aneurysm to be timely diagnosed and treated. The ER physician denied liability. He argued that the woman was comparatively negligent for failing to timely address her symptoms despite her medical history of high blood pressure. The DeKalb County jury found the hospital 51 percent liable and the woman 49 percent liable. They awarded a $1,263,844 verdict.
$1,263,844 – Verdict
2015 – Georgia
A 41-year-old man was brought to the emergency room with suspected stroke symptoms including slurred speech, facial drooping, and neck pain. Upon arrival, the man’s symptoms appeared to have resolved. Nonetheless, the ER physician admitted him. The following morning, the man experienced left-sided weakness and speech difficulties. Brain imaging revealed a stroke. Testing revealed that a carotid artery tear caused the man’s initial neck pain. Torn artery tissue had moved to his brain, causing the stroke. The man died less than a week later. His widow alleged that the hospital staff’s negligence caused his death. She claimed they failed to timely consult a neurologist. The woman argued that a timely consultation would have prevented the stroke. A Muscogee County jury awarded her a $9,200,000 verdict.
$9,200,000 – Verdict