Author's note. Adapted from the plaintiff's motion for partial summary judgment in Barnett v. Johnson, State Court of Cobb County, Civil Action File No. 23-A-526-6. The case involved a stroke patient whose diagnostic workup was delayed for hours in an emergency department. The frame here is portable to any case that turns on whether the ED defendant has come forward with the proof its statute requires.
The defense move
The defense move in Georgia ED-malpractice cases is usually the same. Care happened in an ED. So OCGA 51-1-29.5 applies. So the jury gets the gross-negligence instruction. So the plaintiff has to clear clear-and-convincing evidence to win. End of analysis.
That is not what the statute says. The statute applies the gross-negligence standard to a narrow sub-class of ED care, defined by facts. When the facts are disputed, the jury decides them. When the facts are not disputed — because the defense has no evidence on them — the issue is ripe for partial summary judgment.
What the statute actually says
OCGA 51-1-29.5(c) is the substantive rule:
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.
The rule is keyed to a defined term: "emergency medical care." Sub-section (a)(5) is the definition:
"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. 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.
Three words in (a)(5) carry the load: "immediate," "expected," and "serious." Merriam-Webster gives them their familiar meanings. "Immediate" is instantaneous. "Expected" is probable or certain. "Serious" means dangerous consequences. Put them together. "Emergency medical care" covers situations where even a short delay is likely to cause serious harm. Not every ED encounter. Not every time-sensitive emergency. Just the cases where minutes matter.
The class is narrow
Most ED patients can wait. Many wait for hours. Even patients with serious, time-sensitive emergencies — strokes, bowel obstructions, infections — usually have some time before serious harm sets in. The class who can't wait is small.
The medical profession sees it the same way. The Emergency Severity Index ("ESI") is a five-level triage system supported by the U.S. Agency for Healthcare Research and Quality. Level 1 — the highest priority — is reserved for patients who can't tolerate any delay: cardiac arrest, complete loss of airway, severed femoral artery, gunshot wound to the chest. The ESI Handbook puts Level 1 at one to three percent of ED volume. Everyone else is Level 2 or below.
The statute tracks Level 1, not Level 2 or 3 or 4. It captures the patients for whom even a short delay is expected to cause serious harm. It does not capture the chest pain in the waiting room. It does not capture every stroke patient. It captures only the narrow class where minutes matter.
Take an ischemic stroke. Time-sensitive? Yes. Catastrophic? Yes. Emergency departments rightly aim to respond to a suspected stroke as fast as possible. But strokes do not cause serious harm in one minute. Stroke harm builds over hours, as restricted blood flow damages brain tissue. The standard medical-thrombolysis treatment window is at least four-and-a-half hours. Some ischemic events — transient ischemic attacks — resolve on their own with no permanent harm. The aspiration to respond fast is real. The aspiration is not the statutory test. The test is whether any short delay would reasonably have caused serious harm. For ischemic stroke, the honest answer is no.
The defense has the burden
The defense move usually skips this step. It shouldn't.
The gross-negligence standard helps the defense. The defense wants it. So the defense is the proponent of the standard. Proponents carry the burden of producing the evidence that triggers the doctrine they want.
The Georgia cases on proponency are uniform. Wilson v. State, 312 Ga. 174 (2021) ("Because the State was the proponent of this evidence, the State bore the burden of producing evidence on the issue of Wilson's capacity."). State v. Hamilton, 308 Ga. 116 (2020) ("The unavailability of a witness, therefore, is a statutory prerequisite that a proponent of hearsay evidence has the burden of proving ...."). Gibson v. State, 300 Ga. 494 (2017) ("But the burden was on the proponent of the evidence to establish that the victim's prior acts involved violence and were therefore relevant to a claim of justification.").
Different evidentiary contexts. Same point. The party that wants a doctrine to apply produces the evidence that triggers it.
OCGA 51-1-29.5 fits that pattern exactly. The substantive rule in (c) is keyed to the (a)(5) definition. The defense wants (a)(5) satisfied. So the defense produces the evidence.
The Georgia Supreme Court reads the statute the same way. Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75 (2015), addresses OCGA 51-1-29.5 directly:
The patient's actual medical or traumatic condition is determinative — but only as that condition is revealed by the patient's symptoms. The factfinder must consider the evidence regarding the symptoms the patient presented and determine whether those symptoms were acute and sufficiently severe to show that the patient had a medical or traumatic condition that could reasonably be expected to seriously impair her health if not attended to immediately.
The factfinder cannot weigh evidence that does not exist. No evidence on (a)(5) means no factfinding on (a)(5). No factfinding means the gross-negligence standard does not apply.
Medical causation requires expert testimony
The (a)(5) gate is not just a fact question. It is a medical-causation question.
What does (a)(5) ask? Whether the patient's symptoms were so severe that any short delay would reasonably have caused serious harm. To answer that, you have to know how the patient's condition would have progressed under different timelines. How fast does the condition deteriorate? What does medical intervention prevent along the way? Those are medical questions. Lay common sense cannot answer them.
Georgia has held the same rule for decades. The leading case is Cowart v. Widener, 287 Ga. 622 (2010):
[I]n Gilbert, we expressly noted that the plaintiff's cause of action was for simple negligence and not medical malpractice, but we nonetheless held that medical questions are raised, requiring expert evidence. In short, even in simple negligence cases, plaintiffs must come forward with expert evidence to survive a defense motion for summary judgment, where "medical questions" relating to causation are involved.
The Court of Appeals follows the same rule. See Ellis v. Hartford Run, 335 Ga. App. 118, 122 (2015); Wong v. Chappell, 333 Ga. App. 422, 425 (2015); Nixon v. Pierce County, 322 Ga. App. 745, 748 (2013); Ladner v. Northside Hospital, 314 Ga. App. 136, 138 n.5 (2012).
Plaintiffs have lived with this rule for decades. No expert on medical causation, no survival of a defense summary judgment motion. The same rule binds the defense when the defense has the burden. The (a)(5) gate is a medical-causation question. The defense has to answer it with expert testimony. There is no other competent source. The trial court cannot take judicial notice of how an ischemic stroke progresses. A jury cannot guess.
The two rules combine. The defense has the burden. The burden requires expert testimony. If the defense's expert disclosures and depositions do not contain that testimony, the defense cannot meet its burden. The gate stays closed.
Partial summary judgment is the right vehicle
The plaintiff is not seeking summary judgment on the case. The plaintiff is seeking summary judgment on one issue — whether the gross-negligence standard applies. OCGA 9-11-56(d) makes that vehicle expressly available. A party can win summary judgment on a controlling issue even when other issues remain for trial.
The usual intuition — that summary judgment is for defendants because plaintiffs carry the burden of proof — does not apply here. On the (a)(5) issue, the defense has the burden. The plaintiff is in the ordinary movant's posture: pointing out that the party with the burden has produced no evidence on a dispositive point. The plaintiff does not have to disprove (a)(5). It is enough to show the defense has not proved it.
Many plaintiffs supply affirmative evidence anyway. An ED-physician expert affidavit walks through (a)(5), explains the ESI taxonomy, and explains why the patient's presentation was not in the Level 1 class. That was the pattern in Barnett. The affirmative showing helps. It is not strictly necessary. The (a)(5) gate is the defense's burden.
What the defense usually argues, and why it fails
Two defense responses come up over and over. Both fail.
The prior-ruling defense. The argument: a prior trial-court ruling already decided the gross-negligence standard applies. Sometimes the prior order is from a transferred case. Sometimes it is an order on a different motion that mentioned the statute in passing. Either way, the defense calls it law of the case and asks the trial court to skip the merits.
Most of that fight is case-specific. The portable point is one sentence. Georgia abolished law of the case for trial-court rulings more than fifty years ago. OCGA 9-11-60 ("The law of the case rule is abolished."). Appellate rulings bind the trial court. Trial-court rulings do not. A trial judge — including one who inherits a transferred case — can reconsider any prior trial-court order on the same issue. A prior trial-court order does not relieve the defense of its burden under OCGA 51-1-29.5.
The self-execution defense. The argument: care in the ED triggers the statute on its own, no further proof needed. There is no textual basis for that reading. The substantive rule of (c) is keyed to a defined term. The (a)(5) definition is fact-laden. Nguyen says the (a)(5) inquiry is for the factfinder. A self-executing reading would erase (a)(5) from the statute. Statutes do not read that way.
A third response sometimes appears: that Cowart and its progeny do not apply here because they are plaintiff cases. The argument is wrong. Cowart stated the rule in categorical language and tied it to the medical content of the question, not the procedural posture. Whether a delay would have caused serious harm is a medical-causation question whichever side asks it. The procedural posture does not change the medicine.
The portable frame
The frame is portable beyond Georgia. Several states have similar statutes — a higher liability standard for ED defendants, conditioned on a defined showing about severity. Wherever the statute is conditioned on a severity gate, three propositions follow.
- The defense has the burden. The defense is the proponent of the standard.
- The burden requires expert testimony. The gate is a medical-causation question.
- No expert means partial summary judgment removes the gross-negligence instruction before the jury hears it.
The category mistake at the heart of the defense move is the assumption that "emergency department" means "emergency medical care." The two overlap. Every patient who fits (a)(5) is in an ED. Not every patient in an ED fits (a)(5). The whole structure of the statute depends on the difference. When the defense produces no evidence to bridge that gap, the gap stays where the legislature put it.
