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By: Scott Rees
>In Dailey v. Abdul-Samed, the applicability of Georgia’s emergency medical care statute, O.C.G.A. 51-1-29.5. The statute provides that 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.
Factually, the patient inadvertently shot paint thinner into one of his fingers and went to the ER. In the ER, the medical providers concluded the patient needed an immediate referral to a hand surgeon. One of the defendant physicians had a nurse begin contacting hospitals to see if they could accept the transfer. There was a conflict in the evidence whether the hospital followed proper transfer protocols, i.e., whether it failed to contact a certain hospital. The hospital eventually found another hospital that would accept the patient, but that acceptance did not take place until over six hours after the defendant medical providers knew an immediate transfer was necessary, and the actual transfer did not take place until over eight hours after they knew a transfer was necessary.
Plaintiffs alleged that the medical providers delayed transferring the patient out of an emergency room to a hand surgeon, leaving the hand injury untreated, which ultimately resulted in a partial amputation of the patient’s finger. The trial court granted Defendants’ motion for summary judgment on the basis that such allegations were governed by the emergency medical care statute since the patient was presented to the ER, and that Plaintiffs failed to present clear and convincing evidence that Defendants’ actions were grossly negligent.
The Court of Appeals reversed. Taking the evidence in the light most favorable to the Plaintiffs, the Court found there was an unnecessary delay in transferring the patient. The Court held that the “mere fact that the [patient] remained in the emergency department while Defendants allegedly delayed in providing the [patient] the requisite care does not automatically invoke application of O.C.G.A. 51-1-29.5.” However, it does create a question of fact whether such delay in the emergency room constituted emergency medical care under 51-1-29.5(c), and therefore the trial court’s grant of summary judgment was reversed.
Notably, there was a concurring opinion that agreed with the reversal of the trial court’s decision, but felt reversal was warranted because there was a fact question as to whether there was evidence of gross negligence. The concurring opinion believed that the emergency medical care statute applied because the patient’s injury was an emergency, and the Defendants’ efforts to locate a transfer constituted emergency medical care.
Finally, the Court of Appeals did not address Plaintiffs’ argument that the statute is unconstitutionally vague because the trial court never addressed it.