Parents of Brain-Damaged Child Denied Summary Judgment Against Emergency Room

Every parent dreads the prospect of taking a child to the emergency room following an accident. This dread can turn to horror if negligence on the part of medical personnel compounds the child’s injuries. Unfortunately, Georgia law makes it difficult to hold emergency medical providers accountable for malpractice. Under a 2005 “tort reform” law, a victim must prove by “clear and convincing evidence” that a provider of “emergency medical care” committed “gross negligence.” This is a significantly higher legal standard than traditional malpractice claims, where Georgia only requires proof of ordinary negligence by a “preponderance of the evidence.”

Nguyen v. Southwestern Emergency Physicians, P.C.

The Georgia Supreme Court recently addressed the application of Georgia’s emergency room law to a tragic case involving an 8-year-old girl. When the child was just six months old, she fell off a bed and hit her head on a blunt object. The child’s mother—who later described the head injury as the size of an apple, practically “another head” on her baby—took her to a hospital emergency room in Albany, Georgia.

At the hospital, a paramedic examined the child for “around three minutes” and assigned her to a “non-emergency” track, despite also noting a hematoma on the medical chart. A physician’s assistant then examined the child and determined it was unnecessary to order a skull X-ray or a head CT scan. The child was then discharged from the emergency department, about 20 minutes after the paramedic’s initial examination.

Two days later, the child stopped breathing. The parents returned to the same emergency room, where the doctors now determined she had suffered “a skull fracture” and had a “large subdural hematoma that was pressing on her brain,” requiring immediate surgery. A neurosurgeon at another hospital later said “the subdural hematoma had been developing for days or weeks.” Sadly, even with surgery the child suffered permanent brain damage and is unable to speak or walk.

The parents sued the hospital and emergency care providers who initially failed to diagnose the severity of their daughter’s injuries. The parents also sought a declaration that the defendants could not seek refuge under the Georgia emergency room law, which the trial court granted. The Georgia Court of Appeals reversed this decision, holding the issue was for a jury to decide. The parents then sought review from the Georgia Supreme Court.

In a November 2 opinion, the Supreme Court agreed with the Court of Appeals the parents were not entitled to summary judgment on this issue. The parents based their argument on the emergency room providers’ determination their daughter did not require “emergency care.” But as the Supreme Court explained, the “fact that she was given a non-emergency ranking…and treated as a non-emergency patient…does not prevent these evaluations from being ‘bona fide emergency services’” under Georgia’s emergency room law.

It is important to note the Supreme Court did not rule on the merits of the parents’ claims, only that they were not entitled to summary judgment on the applicability of the ER statute. The Court noted a jury could still find the hospital negligent, especially if it believes the mother’s testimony regarding the size and severity of her daughter’s head injury on the night of the first emergency room visit.

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