Georgia Supreme Court Analyzes Application Of Heightened Evidentiary Standard To Be Used In Emergency Room Cases


By: Taryn Kadar
In Johnson v. Omondi, decided on November 14, 2013, the Georgia Supreme Court reversed the Court of Appeals’ decision which had previously affirmed the trial court’s decision granting summary judgment to the defendant ER doctor.  The Court explained that Georgia’s ER statute (OCGA 51-1-29.5(c)) requires a plaintiff to prove emergency room care was grossly negligent, and that evidentiary burden must be proven by clear and convincing evidence.  Gross negligence is defined as “the failure to exercise even a slight degree of care, or lack of the diligence that even careless men are accustomed to exercise.”
The Court then determined that the court of appeals erroneously applied this stringent burden when it affirmed the ER physician’s summary judgment.  In reversing the court of appeals, the Court relied on plaintiff’s experts which testified that the ER physician’s care and treatment was “ridiculous” and nothing he did ruled out the possibility of pulmonary embolism.  Because plaintiff’s expert testimony was legally required to be believed at the summary judgment stage, the Court found that plaintiff had properly shown that a jury could find that the ER physician failed to provide even slight care and therefore was grossly negligent.  Accordingly, summary judgment was reversed.
Notably, the concurring opinion took issue with the legal definition of “gross negligence” when used in medical malpractice cases.  The concurrence argued that whether slight care was or was not provided, is not the proper analysis in determining gross negligence.  Rather, the better analysis is to assess the degree in which the care deviated from the applicable standard of care.
This decision makes it seem that getting summary judgment in an ER malpractice case may be as difficult as it is in getting summary judgment in a non-ER medical malpractice case.  However, as the concurring opinion noted, given the stringent evidentiary standard, it would be surprising if this statute did not result in a large number of defense verdicts.