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Update on Medical Malpractice and Emergency Medicine

We previously commented on a law passed by the Georgia legislature in 2005 that made it difficult, if not impossible, to successfully bring a medical malpractice lawsuit against an emergency room physician. Fortunately, a number of recent decisions have clarified the law in this area and effectively restored the right of people injured as a result of the emergency room negligence.

The 2005 statute, part of “tort reform”, required an injured party to prove, by clear and convincing evidence, that the emergency room personnel were grossly negligent. These two requirement, “gross negligence” and “clear and convincing evidence” apply only to medical malpractice cases involving physicians providing true emergency surgery. All other injury cases, including all other medical malpractice cases, require only that the injured person prove his or her case that the physicians was “negligent” by “a preponderance of the evidence.”

“Preponderance of the evidence”, means that it is more likely than not that the person causing the injury was negligent. It is like a balancing act: all the injured party has to do is get the scales to tip in his or her favor. “Clear and convincing” is a higher burden of proof than “a preponderance of the evidence” means the evidence must be highly and substantially more probable to be true than not. While this heightened evidentiary burden may be significant, it was not as critical as the “gross negligence” requirement.

“Gross negligence” is defined as “the absence of even slight diligence, and slight diligence is defined in [O.C.G.A. §51-1-4] as ‘that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.'” Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (2010). Some early cases interpreted this to mean that, as long as the doctor looked at the patient and did something, there was no gross negligence. Utilizing that standard, courts routinely granted summary judgment motions made by the defendants and dismissed the case; motions which argued that since there was some amount of attention paid to the plaintiff the plaintiff could not prove his or her case.
Fortunately, the absurd interpretation or what constitutes “gross negligence” which virtually guaranteed that the medical provider would win without even having to go to trial, has now been put to rest.

In Johnson v. Omondi, 294 Ga. 74 (2013), the intermediate appellate court, the Court of Appeals, granted summary judgment to the defendant finding that the plaintiff had not presented clear and convincing evidence of slight care even though there was expert testimony that the defendant physician had breached the standard of care. (The standard of care is that degree of knowledge and skill used by other physicians in like or similar circumstances). The Supreme Court of Georgia reversed, finding that the opinion of the qualified expert witness provided the jury with enough evidence that a reasonable jury could find gross negligence by a clear and convincing evidence.

With its decision the Supreme Court determined that it was up to a jury, not a judge, to decide whether there was “gross negligence” and whether the plaintiff had satisfied its burden by clear and convincing evidence. By taking this crucial decision out of the judges’ hands, cases that were being dismissed before trial will now be heard by a jury of twelve. This is a major victory for people injured in Georgia as a result of medical negligence.