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 doctor 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 of the facts and circumstances.
Georgia falls head first 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 to it by triage assessment which is one of those things that makes sense until you dig into the nuance of it and then you are wondering why the law was ever created in the first place. But the 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 ordinary diagnosis and treatment you get when you go to the emergency department.