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By: Scott Rees
In Johnson v. Omondi, 318 Ga.App. 787 (Nov. 27, 2012), the Court of Appeals further defined the contours of Georgia’s emergency room statute (O.C.G.A. 51-1-29.5), which was enacted in 2005, but has had little guidance as to its scope. The emergency room statute covers emergency medical care provided in a hospital emergency department (or care provided in an obstetrical or surgical suite immediately following treatment in an emergency department). The statute requires a heightened evidentiary standard (clear and convincing evidence) and lowered standard of care (gross negligence – defined as a failure to provide even a slight degree of care).
In Johnson, the Court affirmed the trial court’s order granting summary judgment to the emergency room physician, because there was evidence establishing that the physician provided a slight degree of care. The Court noted that the physician spent time with the patient and his family in obtaining a history, performed a number of tests, and ruled in and out a number of different diagnoses, even though he was ultimately wrong (and failed to do certain things as testified to by plaintiff’s experts). The Court held that in light of such actions, the plaintiff could not provide clear and convincing evidence that the physician failed to provide even a slight degree of care. As part of that ruling, the Court noted that the plaintiff’s expert focused on what the physician did wrong, as opposed to what he did right.
What to take from this case: As plaintiff attorneys have complained about since the passage of this law, it is incredibly difficult for a plaintiff to satisfy the burden that an emergency room physician failed to provide even a slight degree of care. What a plaintiff must prove in these types of cases closely resembles what a plaintiff must prove in a 42 USC 1983 claim – deliberate indifference to a serious medical need.