Jury can decide if ER malpractice was under “gross negligence” or “ordinary negligence” standard
In the national debate over health care there has been much discussion of the fact that many people go to hospital emergency departments for medical care that is not necessarily due to a true emergency involving a serious personal injury or immediately life threatening illness.
There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.
The Georgia legislature in 2005 passed a poorly drafted omnibus bill designed to make it more difficult for injured people to recover their damages from parties at fault. The Georgia Supreme Court eventually held the arbitrary cap on non-economic damages in medical malpracticecases was unconstitutional. Other provisions were either limited in their application or turned out to have unintended results that occasionally help well-represented injury victims.
But one section has virtually closed the courthouse to victims of serious personal injury or wrongful death due to malpractice in hospital emergency departments.
O.C.G.A. § 51-1-29.5 provides, in part:
(c) 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.
(d) In an action involving a health 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, the court shall instruct the jury to consider, together with all other relevant matters:
(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;
(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;
(3) The circumstances constituting the emergency; and
(4) The circumstances surrounding the delivery of the emergency medical care.
Focusing on paragraph (c), most lawyers concluded that the standard of “clear and convincing evidence” of “gross negligence” is virtually a guarantee of immunity from liability for a health care provider or hospital in an emergency medicine context. In talking with potential clients who call about potential ER malpractice claims, I have often told them that this law virtually means that unless a doctor was obviously drunk and expressed a willful disregard for causing harm to the patient, the case was virtually unwinnable. It has become virtually impossible to find an experienced lawyer to take an emergency room malpractice case.
But paragraph (d) is also part of the statute. Now, finally, there is an appellate decision that focuses on the jury question of whether or not a particular treatment fit the definition of emergency care.
This month, in Howland v. Wadsworth, — S.E.2d —-, 2013 WL 5543486 (Ga.App., decided October 9, 2013), the Court of Appeals affirmed a $5,000,000 Gwinnett County judgment for a double amputee, holding that whether the patient at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51–1–29.5(a)(5) was a question for the jury. The jury could find, as it did, that the facts did not fit the definition of “emergency” so it could find for the plaintiff under the standard of preponderance of evidence of ordinary negligence rather than “clear and convincing evidence of gross negligence.”
In this case, the patient began experiencing pain in her feet and after several days noticed that her feet were cold and that she was unable to warm them, her pain worsened to the point she could no longer walk. She then called 911. An ambulance took her to the local hospital’s emergency room. In the ambulance en route to the hospital, a paramedic assessed her condition, noted that she had normal vital signs and normal blood circulation in her legs, and obtained a brief medical history of diabetes and hypertension. Upon her arrival at the ER, she was classified as a “level 4” patient, meaning that her condition was “non-urgent.” She was assigned a bed in “C-pod,” which is an area designated for the examination and treatment of patients who are expected to be “in and out in 90 minutes or less.” The triage nurse noted complaints of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse noted that her feet were cold to the touch, but that she had “positive” or “palpable” pulses in her feet at the time.
Eventually, she was seen by a physician assistant who worked in the ER. He noted that Wadsworth was “moderate” pain, ordered morphine, and did a differential diagnosis and ordered a venous ultrasound exam which ruled out deep vein thrombosis. He did not order tests to check for partial arterial blockage. He diagnosed cellulitis, which can be treated with antibiotics on a nonemergency basis. Though the patient wanted to be admitted to the hospital for observation, she was given a prescription for antibiotics and pain medication and discharged after three hours in the ER.
About 12 hours later, an ambulance responded to an emergency call to her home in the middle of the night. Upon arrival, the paramedics found her unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, vital signs improved, and she was again transported by ambulance to the same ER. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest. Later that afternoon, doctors performed an arteriogram and determined that the arteries behind both of her knees were completely blocked.
Doctors later determined that the patient’s lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.
Testimony of the physician’s assistant and physician that the patient was stabilized and properly could be discharged was evidence upon which the jury could determine that she was not in an “emergency” situation at that point, so that the ordinary negligence rather than “gross negligence” standard should apply.
All medical malpractice cases are still extraordinarily challenging. Emergency room malpractice cases are still even more challenging than others. But with this decision from the Court of Appeals, it may be a little easier to get lawyers to consider taking cases arising out of emergency department negligence in diagnosis and discharge.
Ken Shigley is an Atlanta trial attorney who is a past president of the State Bar of Georgia and a board certified civil trial and pre-trial advocate of the National Board of Legal Specialty Certification . His practice focuses on serious personal injury, wrongful death and commercial trucking litigation.