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By: Scott Rees and Michael Eshman
The highest Court in Georgia recently heard oral argument in a medical malpractice case with implications for medical providers working in state-run facilities. The issue, generally, is: when are medical providers working in state-run facilities who treat private-pay patients entitled to “official immunity” from civil suit as state employees or agents?
Since the Court’s 1997 decision in Keenan v. Pouffe, Georgia courts have applied a fact-specific analysis to each case in determining whether official immunity applied. Factors considered by the courts are: 1) whether the patient was one the physician was obligated to treat by virtue of the physician’s position with the state; 2) whether the patient was private-pay or indigent/public-pay; 3) whether an entity separate from the state billed the patient and/or provided the physician with any compensation, including fringe benefits such as the provision of liability insurance; and 4) whether the attending physician’s treatment of the patient was left to the physician’s sole medical discretion. Georgia courts applying Keenan have since held that a state-employed medical provider treating a patient whose care is provided by public funds, as opposed to private-pay, is entitled to official immunity. (See Porter v. Guill)
In Shekhawat v. Jones, the case recently heard by the Georgia Supreme Court, the plaintiff was a private-pay patient who received medical care at the Medical College of Georgia’s Children’s Medical Center. The Plaintiff sued a neonatologist, anesthesiologist, and resident fellow for their alleged failure to ensure the patient was adequately oxygenated during intubation, which resulted in permanent disability. The trial court initially granted all of the physicians’ motions for summary judgment on the basis of official immunity. The Court of Appeals, applying the same fact-based analysis, reversed the trial court’s decision with regard to the neonatologist and anesthesiologist, but affirmed that the resident fellow was entitled to official immunity.
The Georgia Supreme Court granted the writ of certiorari and has already heard oral arguments on the case. We expect that a decision from the Court in Shekhawat will likely offer more insight into the proper application of the fact-specific analysis under Keenan, but the Court could also choose to move away from the Keenan analysis and provide more of a bright-line rule. Either way, the decision should offer some insight into the future application of official immunity to medical providers working in state-run facilities.