Under Georgia law, a hospital emergency room is not liable for medical malpractice unless there is “clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” The Georgia Supreme Court recently opined on the scope of what may constitute “gross negligence.” The justices, concurring with an earlier decision by the Georgia Court of Appeals, found a trial judge was too quick to grant summary judgment to a physician who claimed immunity under the law.
Abdel-Samed v. Dailey
The plaintiff in this case sought treatment at the emergency room of a hospital in Griffin. He had severely injured his hand in a paint sprayer accident. Upon arrival in the ER, a physicians’ assistant examined the plaintiff and said he would require emergency surgery. It was after midnight, however, and the hospital did not have a hand surgeon on-call. The assistant told the plaintiff he would have to wait until morning for the surgery.
At this point, a physician examined the plaintiff and confirmed the physician assistant’s diagnosis. The physician had actually just spoken with a qualified hand surgeon at a nearby hospital about another patient. Although this surgeon was available and willing to treat the plaintiff immediately, the emergency room physician nevertheless told the plaintiff to wait until the morning for the hospital’s surgeon.
The plaintiff was ultimately transferred to the other hospital–nearly eight hours after his initial admission to the emergency room. Although he received the necessary surgery, he claimed the delay resulted in partial amputation of a finger and “reduced range of motion and increased pain and sensitivity in his finger and hand.” He then sued the emergency room physician for malpractice on the grounds she should have referred him to the other hospital sooner.
The trial judge granted summary judgment to the physician, finding the plaintiff could not possibly meet the burden of proving “gross negligence” as required by law. The Georgia Court of Appeals reversed the trial judge. The Supreme Court agreed with the Court of Appeals that summary judgment was inappropriate.
The Supreme Court explained that at this stage of the case, the plaintiff merely had to present sufficient expert testimony to show a jury could find there was “gross negligence.” The plaintiff did so in the form of an expert witness who said the emergency room physician’s delay in transferring the plaintiff to another hospital–especially when she knew there was a hand surgeon able to act immediately–constituted “gross negligence and a gross deviation from the applicable standard of medical care.”
The justices rejected the defense’s argument that they exercised “slight diligence” in caring for the plaintiff, thus negating any possible finding of gross negligence. The Court noted there was evidence that the hospital failed to follow its normal practice in contacting other hospitals to see if there was an available surgeon. It was also undisputed that the physician knew there was an available surgeon nearby, yet she failed to authorize a transfer for several hours. In any case, there are enough facts in dispute to warrant sending this case to a jury.