From a brief challenging 15 years of how Georgia courts and lawyers understood the "Emergency Medical Care" standard

INTRODUCTION This is a medical malpractice case. The main acts of negligence occurred in an emergency room. Normally, medical malpractice cases involve a “regular” standard for negligence: Any deviation below the standard of care — large or small — makes the defendant liable for any harm caused by the deviation. But Georgia law creates a special “gross negligence” standard for a narrow subset of emergency department care. The law creates multiple requirements that must be met, in order for the jury to apply the gross-negligence standard, rather than the regular standard. The Defense obviously wants the jury to apply the gross-negligence standard, because that standard makes the case harder for a plaintiff, easier for a defendant. As the proponent of the gross-negligence standard, the Defense bears the burden of presenting evidence that the requirements are met, for applying that standard. The undisputed evidence, however, is that in this case the requirements are not met. So Plaintiff asks the Court to grant partial summary judgment, finding that requirements for applying the gross-negligence standard are not met, and ordering that the jury must apply the “regular” negligence standard. ——— Georgia law — at OCGA 51-1-29.5 — creates multiple requirements that must be met in order to give the defendant the benefit of the special “gross negligence” standard. The two main requirements before applying the gross-negligence standard are: (i) a location requirement, and (ii) a severity requirement. The location requirement is straightforward: As relevant here, the statute requires that the medical care at issue was provided in an emergency room. Plaintiff agrees that the location requirement is met in this case. But the statute also imposes a severity requirement, before giving the defendant the benefit of the gross-negligence standard. The severity requirement is not met in this case. As anyone who has been to an emergency department knows, the vast majority of “emergency” patients do not have highly time-sensitive emergencies. ED waiting rooms are filled with people waiting hours to see a physician. Georgia law does not give defendants the benefit of the gross-negligence standard for all those patients. Instead, OCGA 51-1-29.5 limits the gross-negligence standard only to the most extreme emergencies — those in which any delay of medical attention would likely cause serious harm: “Emergency medical care” means 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. OCGA 51-1-29.5(a)(5). This statutory definition encompasses only the most extreme of emergencies — a gunshot wound to the chest; a femoral artery sliced open and the patient bleeding out; a patient choking and unable to breathe; etc. In situations like that, even a delay of 60 seconds is likely to cause serious harm. Such ultra-extreme emergencies represent only about 1% of all ED patients. Most ED patients can tolerate a delay of hours. And even patients with serious, time-sensitive emergencies — like a stroke — can usually tolerate a delay of at least a few minutes. Our Supreme Court recognizes, of course, that to apply the gross-negligence standard, the jury must find that the statutory requirements for applying the standard are met. In this case, the severity requirement is not met. Jennifer Barnett was not in the small class of patients who required immediate medical attention because any delay could be expected to cause serious harm. Furthermore, the undisputed evidence shows affirmatively that the severity requirement is not met here. With this motion, Plaintiff submits an affidavit by Dr. Martin Lutz, a veteran ED physician. He testifies that Jennifer Barnett could tolerate some delay of medical attention with no likelihood of serious risk for the delay. Jennifer was not in the small category of patients for whom any delay of medical attention, even a delay of a few minutes, was likely to cause serious harm. The Defense has no contrary evidence. Additionally, in email correspondence, the Defense has indicated they do not intend to present any such evidence (presumably because they cannot find a medical expert willing to give that testimony). Accordingly, there is no evidence on which the jury could find that the requirements are met, to apply the gross-negligence standard. So the jury cannot apply that standard. Plaintiff asks the Court to enter an order granting partial summary judgment on that issue.