Appeals Court Clarifies Definition of “Emergency Department” in Malpractice Cases

Under Georgia law, an emergency room doctor (or other emergency health care provider) is not liable for malpractice unless there is “clear and convincing evidence” of “gross negligence.” This rule only applies when a patient is treated in “an emergency department” or taken to surgery from an emergency department. But what constitutes the “emergency department” of a hospital? The Georgia Court of Appeals recently clarified this issue.

Nisbet v. Davis

The Court of Appeals reviewed a trial judge’s denial of summary judgment to a physician at Gwinnett Medical Center in Lawrenceville. The plaintiff is the surviving spouse of a woman who died while under the physician’s care. The deceased had undergone surgery at another hospital in 2009 where the surgeon accidentally perforated her bowel twice. The next day, the woman complained of breathing problems, and she went to the Gwinnett Medical Center’s emergency department for treatment.

The defendant physician was not an attending physician in the emergency department, but rather a pulmonary specialist who served as a “consultant” to the department. The specialist examined the woman but did not request a surgical consult, which likely would have discovered the perforated bowel from the previous day’s surgery. Instead, the specialist ordered the woman be moved to intensive care. The doctor did not follow up on this order, however, and the woman remained in the emergency room for several hours. Although emergency room staff maintained contact with the physician, she did not return to the hospital until the next morning. At that point—approximately 10 hours after her initial examination—the doctor finally requested a surgical consult.

The surgeon quickly discovered the perforated bowel, but by then it was too late. Despite emergency surgery, the woman died. The surviving spouse filed a wrongful death lawsuit against the physician, alleging her failure to immediately order a surgical consult led to his wife’s death.

Before the trial court, the doctor moved for summary judgment, citing immunity under Georgia’s emergency care law. The judge denied the motion, holding it did not apply in this situation. The judge said the physician worked for the critical care (ICU) department rather than the emergency department. Furthermore, there were disputed issues of fact as to whether the physician’s conduct constituted “ordinary negligence” under Georgia law. Summary judgment was therefore inappropriate.

The defendant appealed the denial of summary judgment. The Court of Appeals affirmed the trial court’s decision to deny summary judgment, but not its reasons. Critically, the appeals court said the emergency room law applies in this case because, regardless of what department the defendant worked for, the deceased received treatment in the emergency room. The appeals court said that in writing the law, the Georgia legislature clearly intended for it to apply to all treatment received within the physical confines of a hospital’s emergency room or department.

That said, the appeals court agreed with the trial judge there were still material issues of fact that needed to be resolved by a jury. But, since the emergency room law applies, there will now be a higher burden on the plaintiff to prove the defendant’s conduct amounted to “gross” rather than “ordinary” negligence.

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