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2018 Georgia Code 51-1-29.5 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 51-1-29.5 Case Law from Google Scholar Amendments to OCGA 51-1-29.5

TITLE 51 TORTS

Section 1. General Provisions, 51-1-1 through 51-1-55.

51-1-29.5. Definitions; limitation on health care liability claim to gross negligence in emergency medical care; factors for jury consideration.

  1. As used in this Code section, the term:
    1. "Affiliate" means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary.
    2. "Claimant" means a person, including a decedent's estate, who seeks or has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.
    3. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the person, whether through ownership of equity or securities, by contract, or otherwise.
    4. "Court" means any federal or state court.
    5. "Emergency medical care" means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.
    6. "Emergency medical services provider" means any person providing emergency medical care.
    7. "Health care" means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
    8. "Health care institution" means:
      1. An ambulatory surgical center;
      2. A personal care home licensed under Chapter 7 of Title 31;

        (B.1) An assisted living community licensed under Chapter 7 of Title 31;

      3. An institution providing emergency medical services;
      4. A hospice;
      5. A hospital;
      6. A hospital system;
      7. An intermediate care facility for the intellectually or developmentally disabled; or
      8. A nursing home.
    9. "Health care liability claim" means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant.
    10. "Health care provider" means:
      1. Any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Georgia to provide health care, including but not limited to:
        1. A registered nurse;
        2. A dentist;
        3. A podiatrist;
        4. A pharmacist;
        5. A chiropractor;
        6. An optometrist; or
        7. A health care institution; and
      2. Any person who is:
        1. An officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; or
        2. An employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship.
    11. "Hospice" means a facility licensed as such under the "Georgia Hospice Law," Article 9 of Chapter 7 of Title 31.
    12. "Hospital" means a facility licensed as such under Chapter 7 of Title 31.
    13. "Hospital system" means a system of hospitals located in this state that are under the common governance or control of a corporate parent.
    14. "Medical care" means any act defined as the practice of medicine under Code Section 43-34-21.
    15. "Nursing home" means a facility licensed as such under Chapter 7 of Title 31.
    16. "Pharmacist" means a person licensed as such under Chapter 4 of Title 26.
    17. "Physician" means an individual licensed to practice medicine in this state, a professional association organized by an individual physician or group of physicians, or a partnership or limited liability partnership formed by a group of physicians.
    18. "Professional or administrative services" means those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician's or health care provider's license, accreditation status, or certification to participate in state or federal health care programs.
  2. Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law.
  3. 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.
  4. 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.

(Code 1981, §51-1-29.5, enacted by Ga. L. 2005, p. 1, § 10/SB 3; Ga. L. 2009, p. 859, § 16/HB 509; Ga. L. 2011, p. 227, § 29/SB 178; Ga. L. 2015, p. 385, § 4-14/HB 252.)

The 2015 amendment, effective July 1, 2015, substituted "intellectually or developmentally disabled" for "mentally retarded" in subparagraph (a)(8)(G).

Editor's notes.

- Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

Ga. L. 2005, p. 1, § 14/SB 3, not codified by the General Assembly, provides for severability.

Ga. L. 2005, p. 1, § 15(b)/SB 3, not codified by the General Assembly, provides that this Code section shall apply only with respect to causes of action arising on or after February 16, 2005, and any prior causes of action shall continue to be governed by prior law.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

Law reviews.

- For article on the 2005 enactment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For article, "State of Emergency: Why Georgia's Standard of Care in Emergency Rooms is Harmful to Your Health," see 45 Ga. L. Rev. 275 (2010). For annual survey on torts, see 65 Mercer L. Rev. 265 (2013). For annual survey on torts law, see 66 Mercer L. Rev. 189 (2014). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For annual survey of tort law, see 68 Mercer L. Rev. 279 (2016).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 51-1-29.5(c) does not violate the uniformity provision of the Georgia Constitution, Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a), because it is a general law; it operates uniformly upon all health care liability claims arising from emergency medical care, and classification of the designated class is neither arbitrary nor unreasonable. Gliemmo v. Cousineau, 287 Ga. 7, 694 S.E.2d 75 (2010).

Because the legislative purpose of O.C.G.A. § 51-1-29.5(c) is legitimate, and the classification drawn has some reasonable relation to furthering that purpose, the classification passes constitutional muster, and, although § 51-1-29.5(c) raises the burden of proof in certain cases, it does not deprive one of the right to a jury trial or any other fundamental right. Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are legitimate legislative purposes, and it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals. Gliemmo v. Cousineau, 287 Ga. 7, 694 S.E.2d 75 (2010).

O.C.G.A. § 51-1-29.5(c) satisfies due process requirements because it is not so vague and indefinite in its meaning that persons of ordinary intelligence must necessarily guess at the subsection's meaning and differ as to the subsection's application. Gliemmo v. Cousineau, 287 Ga. 7, 694 S.E.2d 75 (2010).

Phrase "in a hospital emergency department."

- Georgia General Assembly's use of the phrase "in a hospital emergency department" in O.C.G.A. § 51-1-29.5 to mean the physical location in which a patient is treated is reflected by its inclusion in the statute of two other locations within which a patient may be treated for an emergency. Nisbet v. Davis, 327 Ga. App. 559, 760 S.E.2d 179 (2014).

Medical care is an objective, rather than subjective, test. Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 779 S.E.2d 334 (2015).

Question of fact remained whether statute applied.

- In a malpractice suit alleging that emergency department physicians failed to diagnose and treat an infant's skull fracture, the trial court erred by granting summary judgment to the medical defendants because the record showed a genuine issue of material fact as to whether the heightened proof standards set forth in O.C.G.A. § 51-1-29.5(c) applied in the case. Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 779 S.E.2d 334 (2015).

Application when husband remained symptomatic.

- Trial court properly determined that O.C.G.A. § 51-1-29.5(c) applied to a couple's negligence claims because the services rendered by the defendants constituted emergency medical care defined by § 51-1-29.5(a)(5) as the husband remained symptomatic throughout the entire time of being treated in the emergency room and the couple did not show that the husband was ever capable of receiving medical treatment as a nonemergency patient. Quinney v. Phoebe Putney Mem. Hosp., 325 Ga. App. 112, 751 S.E.2d 874 (2013).

Question as to whether delay in treatment constituted emergency medical care.

- In a medical malpractice action, the trial court's grant of the defendants' motion for summary judgment was erroneous because, although the evidence reflected that the patient presented to the emergency room with an emergency condition, a question of fact existed as to whether the defendants' actions in delaying necessary treatment constituted emergency medical care under O.C.G.A. § 51-1-29.5(c). Dailey v. Abdul-Samed, 319 Ga. App. 380, 736 S.E.2d 142 (2012).

Trial court did not err in allowing the jury to interpret O.C.G.A. § 51-1-29.5 when the court allowed the jury to determine whether the medical care provided to the patient arose out of the provision of "emergency medical care," as the jury had to determine whether the patient's claims rose out of the provision of the emergency medical care and the trial court charged the jury on the definition of "emergency medical care," which was not beyond the ken of the average juror. Howland v. Wadsworth, 324 Ga. App. 175, 749 S.E.2d 762 (2013).

Question of fact remained whether patient was provided emergency medical care.

- In the plaintiffs' negligence action against the defendants for the treatment of the plaintiffs' child, the plaintiffs' partial summary judgment motion was improperly granted because a question of fact remained as to whether the child was provided emergency medical care since nothing in the record suggested that the physician assistant who evaluated the child in the emergency room (ER) was not acting in good faith when the physician assistant diagnosed the child as suffering from a mere contusion; and the circumstances of the child's admission, readmission, and permanent injuries required a jury to consider whether, when the child presented at the ER with a large red-purple lump on the head, the child was suffering from an actual emergency. Southwestern Emergency Physicians, P.C. v. Nguyen, 330 Ga. App. 156, 767 S.E.2d 818 (2014), aff'd, 298 Ga. 75, 779 S.E.2d 334 (2015).

Factual questions existed as to whether an emergency room doctor provided a patient with emergency medical care, O.C.G.A. § 51-1-29.5(a)(5), and whether the patient's act in jumping out of a car and being killed on the interstate was a reasonably foreseeable consequence of the doctor's failure two days earlier to diagnose and treat the patient's psychosis. Everson v. Phoebe Sumter Med. Ctr., Inc., 341 Ga. App. 182, 798 S.E.2d 667 (2017).

Whether the patient at some point was stable and capable of receiving medical treatment as a nonemergency patient within the meaning of the emergency medical care statute was a question for the trier of fact and, thus, the trial court erred by granting summary judgment to the hospital and emergency room physicians on the issue of whether the emergency medical care statute applied to the claims against them. Kidney v. Eastside Medical Center, LLC, 343 Ga. App. 401, 806 S.E.2d 849 (2017).

No evidence emergency room physician acted with gross negligence.

- Patient sued an emergency room physician for malpractice for failing to diagnose a leg fracture. As the physician sought no orthopedic consult because a radiologist opined that the x-rays showed no serious fracture, the patient could not prove by clear and convincing evidence that the physician acted with gross negligence, as required under O.C.G.A. § 51-1-29.5(c); thus, the physician was entitled to summary judgment. Pottinger v. Smith, 293 Ga. App. 626, 667 S.E.2d 659 (2008).

Even assuming there was evidence sufficient to create a jury issue as to whether the doctor's actions were negligent, there was no evidence, and certainly no clear and convincing evidence, by which a jury could reasonably conclude that the doctor failed to exercise even slight care and was therefore grossly negligent. Johnson v. Omondi, 318 Ga. App. 787, 736 S.E.2d 129 (2012).

Evidence of emergency room doctor's gross negligence was sufficient for jury.

- Services provided by an emergency room physician to a patient who presented with a high pressure puncture wound to one hand were "bona fide emergency services" under O.C.G.A. § 51-1-29.5(a)(5), and the physician was therefore only liable if grossly negligent; evidence that the physician failed to contact a hand surgeon for seven hours after determining that emergency surgery was necessary was sufficient to go to the jury. Abdel-Samed v. Dailey, 294 Ga. 758, 755 S.E.2d 805 (2014).

Application of non-emergency exception.

- Whether a patient, who originally needed emergency services, had stabilized and was capable of receiving medical treatment as a nonemergency patient was a question for the trier of fact and, thus, the trial court erred by granting the doctor summary judgment on the issue of whether the exception for non-emergency care applied. Bonds v. Nesbitt, 322 Ga. App. 852, 747 S.E.2d 40 (2013).

Trial court erred in determining that the emergency medical care statute, O.C.G.A. § 51-1-29.5, did not apply since the doctor gave care in the actual emergency room of a hospital, but properly denied the defendant's summary judgment because a question of fact existed as to whether the plaintiff demonstrated by clear and convincing evidence that the doctor was grossly negligent. Nisbet v. Davis, 327 Ga. App. 559, 760 S.E.2d 179 (2014).

Genuine issues of fact as to gross negligence.

- Trial court erred by granting the medical defendants' motion for summary judgment because the appellate court found that the court could not say as a matter of law that a reasonable jury would be unable to find by clear and convincing evidence that the defendants were not grossly negligent based on the plaintiffs' expert evidence and because the emergency room doctor, at the time a radiologist's report was relied upon, had facts that called into question the reliability of the CT scan results. Quinney v. Phoebe Putney Mem. Hosp., 325 Ga. App. 112, 751 S.E.2d 874 (2013).

Need for emergency medical care created heightened burden of proving gross negligence.

- Because a doctor provided care to a patient who had received a high pressure puncture wound to the patient's hand that required emergency surgery, it was clear that the heightened burden of proving gross negligence for emergency services in O.C.G.A. § 51-1-29.5(c) was applicable. The facts were sufficient to go to the jury on the issue of gross negligence. Abdel-Samed v. Dailey, 294 Ga. 758, 755 S.E.2d 805 (2014).

Evidence of gross negligence sufficient to withstand summary judgment.

- In a medical malpractice claim, because the emergency department doctor's actions did not meet the standard of care in the medical profession as the diagnostic measures the doctor took did nothing to prove or disprove the presence of pulmonary embolism in the patient, and the proper standard of care required the doctor to administer a CT scan, or a lung scan, which the doctor did not do, a reasonable jury could find that the doctor acted with gross negligence, and summary judgment was improperly granted in favor of the doctor. Johnson v. Omondi, 294 Ga. 74, 751 S.E.2d 288 (2013).

Cases Citing O.C.G.A. § 51-1-29.5

Total Results: 7  |  Sort by: Relevance  |  Newest First

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Johnson v. Omondi, 294 Ga. 74 (Ga. 2013).

Cited 50 times | Published | Supreme Court of Georgia | Nov 14, 2013 | 751 S.E.2d 288, 2013 Fulton County D. Rep. 3516

...This Court granted a writ of certiorari to the Court of Appeals in Johnson v. Omondi, 318 Ga. App. 787 (736 SE2d 129) (2012), to determine whether the Court of Appeals properly applied the standards for a medical malpractice claim in a hospital emergency department as found in OCGA § 51-1-29.5 (c)....
...Omondi and Southwest Emergency Physicians, PC., Dr. Omondi’s employer (collectively, “Dr. Omondi”), for medical malpractice. Dr. Omondi moved for summary judgment, which the trial court granted. On appeal to the Court of Appeals, in a plurality opinion, that Court *75looked, to OCGA § 51-1-29.5 (c), held that there was no genuine issue of material fact to dispute Dr. Omondi’s argument that he could not be liable under that statute, and affirmed the trial court. It is certainly true that OCGA § 51-1-29.5 (c) controls this case....
...ment 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. OCGA § 51-1-29.5 (a) (9) defines “health care liability claim” as a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or saf...
...which departure from standards proximately results in injury to or death of a claimant. And, there is no dispute that Dr. Omondi was acting as a physician, providing emergency medical care, in a hospital emergency department, as contemplated by OCGA § 51-1-29.5 (c)....
...Hosp., 297 Ga. App. 692, 694 (2) (678 SE2d 340) (2009). However, under the heightened evidentiary burden in this case, Dr. Omondi cannot “be held liable unless it is proven by clear and convincing evidence that [his] actions showed gross negligence.” OCGA § 51-1-29.5 (c)....
...And, “ ‘[c]lear and convincing’ is a more stringent standard than ‘preponderating’ and requires a greater quantum and a high quality of proof in plaintiff’s favor.” In re Estate of Burton, 265 Ga. 122, 123 (453 SE2d 16) (1995) (Citations and punctuation omitted). But, OCGA § 51-1-29.5 (c)’s requirement that gross negligence must be proved by clear and convincing evidence does not necessarily mean that those issues must be presented to a finder of fact and that summary judgment is never appropriate....
...gment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. [Cit.] Id. at 254-255 (II) (B). And, the heightened evidentiary burden imposed in cases falling under OCGA § 51-1-29.5 (c) must necessarily be considered on a motion for summary judgment....
...137, 141 (1) (637 SE2d 854) (2006) (citing Anderson, supra). At trial, the conduct that the Johnsons would bear the responsibility to show by clear and convincing evidence was that Dr. Omondi’s treatment of Shaquille constituted gross negligence under OCGA § 51-1-29.5 (c). Although many terms used in OCGA § 51-1-29.5 are defined therein, that Code section does not contain a definition of “gross negligence.” However, this Court has previously recognized that, as “gross negligence” is not specifically defined in OCGA § 51-1-29.5, the term carries the general meaning set forth in OCGA § 51-1-4. Gliemmo v. Cousineau, 287 Ga. 7 (694 SE2d 75) (2010) (addressing a constitutional challenge to OCGA § 51-1-29.5 (c)). Thus, as used in OCGA § 51-1-29.5, gross negligence is the absence of even slight diligence, and slight diligence is defined in [OCGA § 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...
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Abdel-Samed v. Dailey, 294 Ga. 758 (Ga. 2014).

Cited 44 times | Published | Supreme Court of Georgia | Feb 24, 2014 | 755 S.E.2d 805

...health care liability claims arising out of the provision of emergency medical care. The trial court granted summary judgment in favor of the defendants, and the Court of Appeals reversed, concluding that an issue of fact exists regarding the applicability of OCGA § 51-1-29.5 (c)....
...of summary judgment based on its determination that a question of fact exists as to whether the medical provider defendants’ actions in delaying necessary 4 treatment constituted emergency medical care under OCGA § 51-1-29.5 (c). That subsection provides, in pertinent part: In an action involving a health care liability claim arising out of the provision of emergency medical care 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. OCGA § 51-1-29.5 (c)....
...available hand surgeon if necessary. Contrary to the Daileys’ argument, there is no evidence in the record that Ryan’s medical condition had stabilized so as to render him capable of receiving medical treatment as a nonemergency patient. See OCGA § 51-1-29.5 (a) (5)....
...ce of medical attention could reasonably be expected to result in placing Ryan’s health in serious jeopardy or in serious dysfunction to his hand, we find the Court of Appeals erred by finding a question of fact as to the applicability of OCGA § 51-1-29.5 (c). The Court of Appeals’ reliance on Crewey was misplaced, as that case is both factually and substantively distinguishable....
...to locate an available hand surgeon to perform the required emergency surgery. The Daileys’ claims, therefore, are based on clear allegations that the provided emergency medical services failed to meet the applicable standard of care, thereby rendering OCGA § 51-1-29.5 (c) applicable. See Bonds v. Nesbitt, 322 Ga. App. 852 (1) (747 SE2d 40) (2013). See also OCGA § 51-1-29.5 (a) (7) 8 (defining “health care” as “any act or treatment performed or furnished, or that should have been performed or furnished”); OCGA § 51-1-29.5 (a) (9) (defining “health care liability claim” to include a cause of action against a physician or health care provider for treatment or lack of treatment). 2. Although not addressed by the Court of Appeals, the Daileys further argued that summary judgment was not warranted because there exists a question of fact as to whether the defendants provided “bona fide emergency services.” OCGA § 51-1-29.5 (a) (5). They urge us, as they did the Court of Appeals, to construe the phrase “bona fide emergency services” to render OCGA § 51-1-29.5 (c) applicable only to those cases in which emergency medical services are provided honestly or in good faith. Completing the argument, the Daileys posit that Dr. Abdel-Samed and Epps did not provide the emergency medical services in good faith, and therefore, they are not entitled to claim the heightened protection set forth in OCGA § 51-1-29.5 (c). In the interpretation of all statutes, the courts shall look diligently for the intention of the General Assembly....
...must consider 10 the context in which a phrase is used and the legislative intent behind enactment of the statute. See Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79) (1992). In the context of OCGA § 51-1-29.5 (a) (5), “bona fide” is used as an adjective to describe the type of emergency medical services to which the heightened protections of OCGA § 51-1-29.5 (c) shall apply....
...2005, pp. 1, 11-13, § 10, a legislative effort intended to promote affordable liability insurance for health care providers and hospitals and thereby promote the availability of quality healthcare services. Ga. L. 2005, pp. 1-2, § 1. As part of this effort, the focus of OCGA § 51-1-29.5 (a) (5) is on the definition of “emergency medical care” and reflects a legislative intent to provide greater protection from liability to physicians and health care providers who provide genuine emergency medical care....
...In arguing that “bona fide” should be read to mean “good faith,” the Daileys focus exclusively on the actions or inactions of Dr. Abdel-Samed and Epps, arguing that their actions or inactions show that they did not act in good faith. But OCGA § 51-1-29.5 (a) (5) does not once mention health care 11 providers or their actions....
...When the legislature wants to limit an individual’s tort liability based on good faith actions, it appears to do so by describing the individuals in question and by specifically saying that they must act in good faith. Many of these Code sections are in the same chapter of the Georgia Code as OCGA § 51-1-29.5....
...victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim”). That the General Assembly did not use this familiar language in OCGA § 51-1-29.5 belies the notion that they intended “bona fide” to describe the actions of health care providers. Accordingly, considering the phrase “bona fide emergency services” in its proper context, we find “bona fide emergency services” to mean genuine or actual emergency services. Because there is no disputed question of fact in this case that the defendants provided actual emergency care, see Division 1, supra, the heightened evidentiary burden found in OCGA § 51-1-29.5 (c) applies, and 13 this issue did not preclude the grant of summary judgment. 3. Having determined that the undisputed evidence demonstrates the applicability of OCGA § 51-1-29.5 (c) to the Daileys’ claims, we must determine whether there exists a question of fact regarding their claim of gross negligence. With proper application of OCGA § 51-1-29.5 (c), the Daileys would bear the burden at trial of proving by clear and convincing evidence that the defendants were grossly negligent by failing to transfer Ryan to a hand surgeon in a timely manner. See OCGA § 51-1-29.5 (c); Johnson, supra. Summary judgment in favor of the defendants, therefore, would be appropriate only if, viewing the record evidence in a light most favorable to the Daileys, there was no genuine issue of fact and the medical defend...
...same or similar circumstances.” [Cit.] Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (694 SE2d 75) (2010). See OCGA § 51-1-4. Applying this definition in the context of a medical malpractice action 14 brought pursuant to OCGA § 51-1-29.5 (c), liability would be authorized where the evidence, including admissible expert testimony, would permit a jury to find by clear and convincing evidence that the defendants caused harm by grossly deviating from the applicable medical standard of care....
...Dr. Abdel-Samed and Epps either made no effort to transfer Ryan to a hand surgeon or waited 5.5 hours to contact Dr. Seiler after learning that no other hand surgeon was available.6 Even applying the heightened evidentiary burden imposed by OCGA § 51-1-29.5 (c), from this evidence a jury could find clear and convincing evidence that defendants acted with gross negligence in their efforts to transfer Ryan to a hand surgeon.7 The defendants argue a jury could not find gross negligence because they exercised at least slight diligence in caring for Ryan....
...Similarly, he opined that he considered it within the appropriate standard of care for a medical doctor to delegate to emergency room staff the responsibility of calling other hospitals in search of an available hand surgeon. 17 applicability of OCGA § 51-1-29.5 to the Daileys’ claims, the Daileys have shown facts sufficient to raise a jury question as to gross negligence on the part of the defendants....
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Nguyen v. Sw. Emergency Physicians, P.C., 298 Ga. 75 (Ga. 2015).

Cited 40 times | Published | Supreme Court of Georgia | Nov 2, 2015 | 779 S.E.2d 334

NAHMIAS, Justice. This case involves the application, on motion for summary judgment, of Georgia’s so-called “ER statute,” OCGA § 51-1-29.5, which requires that plaintiffs who bring malpractice claims based on “emergency medical care” provided in a hospital emergency department must meet a higher standard and burden of proof to prevail....
...he child and releasing her from the ER without diagnosing and treating her subdural hematoma and skull fracture, which led a few days later to severe brain damage. The trial court granted partial summary judgment to the plaintiffs, holding that OCGA § 51-1-29.5 did not apply to their claim, but on appeal the *76Court of Appeals reversed. As explained below, we conclude that the Court of Appeals reached the right result, because the trial court misapplied OCGA § 51-1-29.5 as well as the summary judgment standard of review....
..., diagnose, and treat Keira on July 7, 2007, and due to this “malpractice, negligence, and gross negligence,” Keira suffered permanent brain injuries. The Parents later moved for partial summary judgment, asking the trial court to rule that OCGA § 51-1-29.5 does not apply in this case. On October 8, 2013, the trial court granted the motion, concluding that “emergency medical care” as defined in OCGA § 51-1-29.5 (a) (5) “requir[es] both the provider’s belief that he was providing emergency care, and the patient’s prior sudden and severe symptoms manifesting a medical or traumatic condition that objectively requires immediate medical attention,” and that neither requirement was met in this case....
...The Providers appealed, and the Court of Appeals reversed, holding that although Keira was not diagnosed with a serious condition, there was some evidence that she had a medical condition that triggered the ER statute, so it is a question for the jury whether OCGA § 51-1-29.5 applies. See Southwestern Emergency Physicians, P.C. v. Nguyen, 330 Ga. App. 156, 160 (767 SE2d 818) (2014). We granted the Parents’ petition for certiorari. 2. OCGA § 51-1-29.5 (c) provides that for certain health care liability claims based on “emergency medical care,” health care providers will be liable only if the plaintiffs prove by “clear and convincing evidence,” rather than the usual preponderan...
...the statute’s elements. (a) We look first at the location component of the ER statute. The Providers contend that all, or almost all, claims based on treatment received in an emergency room should be subject to the higher proof standards of OCGA § 51-1-29.5 (c) because the purpose of the General Assembly in enacting this provision, which was part of the Tort Reform Act of 2005, see Ga....
...at 173. It is clear that the ER statute applies only when the medical care at issue was provided “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.” OCGA § 51-1-29.5 (c), (d)....
...cal care in a hospital emergency department... .’’And, as we will discuss next, the statute provides a definition of “emergency medical care” that requires more than simply “care provided in an emergency department.” (b) As used in OCGA § 51-1-29.5, “emergency medical care” is defined as bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the abse...
...organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency. OCGA § 51-1-29.5 (a) (5). In interpreting this definition, the trial court construed “bona fide emergency services” as services that are provided in “good faith,” meaning that the health care provider must have had “a good faith belief that he...
...t or what kind of care the patient needed does not determine whether “bona fide emergency services” were provided. See Howland v. Wadsworth, 324 Ga. App. 175, 180 (749 SE2d 762) (2013) (concluding that an issue of fact existed as to whether OCGA § 51-1-29.5 applied because, although the patient was admitted to the emergency room as “non-urgent,” “she was experiencing a medical condition which included symptoms of significant pain in her feet, coldness in her feet, and the inability to walk”). Indeed, other language in OCGA § 51-1-29.5 makes it clear that the statute may be applied to claims based on the provider’s failure to properly recognize and treat a patient’s condition as an emergency....
...laimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant. OCGA § 51-1-29.5 (a) (9) (emphasis added). See also OCGA § 51-1-29.5 (a) (7) (defining “health care” to mean “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement” (emphasis added)); Bonds v....
...at the patient is diagnosed as not needing (or no longer needing) emergency treatment. See Howland, 324 Ga. App. at 181 (“[A]n emergency room physician or health care provider may still claim the protection of the gross negligence standard of OCGA § 51-1-29.5 when he or she mistakenly concludes that a patient has become ‘stabilized’ and ‘capable of receiving medical treatment as a nonemergency patient.’ ”)....
...pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. OCGA § 51-1-29.5 (a) (5)....
...e time the patient was in the ER, she was actually suffering from a life-threatening condition. “Emergency medical care” is limited to “services provided after the onset” of the condition manifesting itself by acute and severe symptoms. OCGA § 51-1-29.5 (a) (5) (emphasis added)....
...Later developments have no bearing on the question of what symptoms were manifest at the time the patient was in the ER. See Brinson, 330 Ga. App. at 220 (“The question ... is whether [the patient’s] medical condition was manifested by acute symptoms of sufficient severity to trigger the gross negligence standard of OCGA § 51-1-29.5 (c).”). Thus, a patient who seeks treatment in an emergency room while suffering from a serious but hidden medical condition and displaying no “acute symptoms of sufficient severity’ would not receive emergency medical care triggering OCGA § 51-1-29.5 (c). 3....
...testimony characterizing Keira’s head contusion as “small.” Based on this evidence, the trial court concluded that “there is no evidence that Keira had severe pain, or any other severe symptoms” bringing this case within the scope of OCGA § 51-1-29.5 when she was treated in the ER....
...a jury could find to be “acute symptoms of sufficient severity . . . such that the absence of immediate medical attention could reasonably be expected to result in placing the [infant’s] health in serious jeopardy,” within the meaning of OCGA § 51-1-29.5 (c).2 Of course, a jury might also disbelieve Nguyen’s description of Keira’s head injury, which seems at the least exaggerated and is contradicted by testimony from two medical professionals that is supported by contemporaneous medical records. Nevertheless, that is a determination to be made by a jury, not a court applying the summary *84judgment standard of review. As we recently reiterated in a case that involved the “gross negligence” element of OCGA § 51-1-29.5: Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict....
...Richard Langley, for appellees. Summerville Moore, S. Leighton Moore III; Harris Penn Lowry, Darren W. Penn; Green & Sapp, Henry D. Green, Jr., Daniel J. Moriarty, amici curiae. In sum, the record shows a genuine issue of material fact as to whether the heightened proof standards set forth in OCGA § 51-1-29.5 (c) apply in this case, and the trial court therefore erred in granting summary judgment on this issue.3 See Brinson, 330 Ga. App. at 221 (explaining that in a case where there is some evidence that the patient did not have acute and severe symptoms and some evidence that she did, the jury had to assess “whether [OCGA § 51-1-29.5] applies and whether the defendants met whatever standard of negligence the jury determines to be applicable”)....
...Accordingly, we affirm the Court of Appeals’s judgment reversing the trial court’s grant of partial summary judgment to the Parents.4 Judgment affirmed. All the Justices concur, except Hunstein, J., who concurs in judgment only as to Division 2. OCGA § 51-1-29.5 (c) and (d) say in full: (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...
...tient 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. In finding the evidence sufficient to trigger OCGA § 51-1-29.5 (c), the Court of Appeals also indicated that the jury should consider Keira’s later readmission to the hospital and ultimate severe injuries....
...of the Parents’ claim. We are not oblivious to the ironies produced by the evidence in this case and by the ER statute in general. Due to the summary judgment standard of review, the defendant Providers are avoiding a pre-trial ruling that OCGA § 51-1-29.5 does not apply in this case based primarily on testimony from one of the plaintiff Parents that the Providers’ own witnesses squarely contradict....
...It is hard to imagine that the Providers will argue at trial that their witnesses should be discredited and the plaintiff believed about the size of the lump on Keira’s head. And as will often be the situation in cases of this sort, to avoid the application of OCGA § 51-1-29.5 but still prevail at trial, the Parents will need to argue that Keira’s symptoms were serious enough that the Providers were negligent in failing to recognize the need for more tests and treatment - but not severe enough to require “emergency medical care.” Conversely, to invoke OCGA § 51-1-29.5 and still prevail at trial, the Providers will have to argue that Keira’s symptoms were so severe that their treatment was “emergency medical care” - but not serious enough that a failure to treat them with anything more than a minimal exam was grossly negligent. In the Court ofAppeals, the Providers argued that they are entitled to summary judgment that OCGA § 51-1-29.5 applies to this case, but they did not move for summary judgment in the trial court, so the Court ofAppeals did not decide that issue....
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Zarate-Martinez v. Echemendia, 299 Ga. 301 (Ga. 2016).

Cited 38 times | Published | Supreme Court of Georgia | Jul 5, 2016 | 788 S.E.2d 405

...dical malpractice actions, and the fact that medical malpractice actions are classified differently from other tort actions in this regard is not arbitrary or unreasonable. See Gliemmo v. Cousineau, 287 Ga. 7, 9-10 (1) (694 SE2d 75) (2010) (OCGA § 51-1-29.5 (c), which “applie[d] generally to all health care liability actions 19 throughout the State which ar[o]se from emergency medical care as set forth in the statute ....
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Gliemmo v. Cousineau, 694 S.E.2d 75 (Ga. 2010).

Cited 26 times | Published | Supreme Court of Georgia | Mar 15, 2010 | 287 Ga. 7, 2010 Fulton County D. Rep. 706

...Carol and Robert Gliemmo (Appellants) brought a medical malpractice action against emergency room doctor Mark Cousineau, Emergency Medical Specialists of Columbus, P.C., and St. Francis Hospital, Inc. (Appellees). After Appellees answered the complaint, Appellants filed a challenge to the constitutionality of OCGA § 51-1-29.5(c), which provides: 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 evalu...
...The trial court rejected the constitutional challenge, but issued a certificate of immediate review. Appellants applied for interlocutory review, and this Court granted the application to consider the constitutionality of the statute. Appellants filed a timely notice of appeal. 1. Appellants contend that OCGA § 51-1-29.5(c) is a special law that violates the uniformity clause of the Georgia Constitution because it sets forth a gross negligence standard of liability only for certain emergency care providers....
...31-8-40 et seq., is an unconstitutional special law. That Act "requires certain hospitals to provide emergency care to pregnant women in labor. . . ." Terrell County v. Albany/Dougherty Hosp. Auth., supra at 627, 352 S.E.2d 378. Moreover, like OCGA § 51-1-29.5(c), that Act provides that there is no civil liability thereunder unless a physician, nurse, medical assistant, hospital or its agent or employee "has been grossly negligent in the provision of such services....
...Unlike this case, the gross negligence standard of care was not specifically attacked in *78 Terrell County. However, that provision was enacted as part of the legislation that was expressly found not to be a special law. Ga. L.1984, pp. 1389, 1393, § 1; Ga. L.1985, pp. 829, 834, 841, § 3. Likewise, OCGA § 51-1-29.5(c) is not a special law affecting only a limited activity in a specific industry during a limited time frame....
...or unreasonable classification. Instead, the dissent focuses on standing, a wholly unrelated issue that was not even addressed in Terrell County. Moreover, the dissent mistakenly relies on Celotex Corp. v. St. Joseph Hosp., supra, to find that OCGA § 51-1-29.5(c) is a special law....
...In finding that statute to be a special law, this Court noted that it dealt "`with a limited activity in a specific industry during a limited time frame. . . .' [Cit.]" Celotex Corp. v. St. Joseph Hosp., supra at 110, 376 S.E.2d 880. Unlike the statute in Celotex, OCGA § 51-1-29.5(c) does not contain any time restrictions....
...This constitutional provision is complied with when the law operates uniformly upon all persons who are brought within the relations and circumstances provided by it" [Cits.] State v. Martin, supra. As a general law that operates alike on all who come within its scope, OCGA § 51-1-29.5(c) complies with the uniformity provision of the Georgia Constitution. 2. Because OCGA § 51-1-29.5(c) is a general law, it "does not violate Art. III, *79 Sec. VI, Par. IV(c), Ga. Const. of 1983, which prohibits special laws relating to the rights or status of private persons." (Emphasis in original.) State v. Martin, supra at 246(5), 466 S.E.2d 216. 3. Appellants claim that OCGA § 51-1-29.5(c) violates the Georgia equal protection guarantee because the statute only applies to malpractice actions involving emergency medical care in a hospital emergency department, and does not include actions arising from medical care provided outside of hospital emergency departments....
...ional distinctions and . . . bears a direct and real relation to the (legitimate) object or purpose of the legislation.'" [Cits.] City of Atlanta v. Watson, 267 Ga. 185, 187-188(1), 475 S.E.2d 896 (1996). Contrary to Appellants' claim, although OCGA § 51-1-29.5(c) raises the burden of proof in certain cases, it does not deprive them of the right to a jury trial or any other fundamental right....
...vided in other settings, and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals. Although the classification made by OCGA § 51-1-29.5(c) may be imperfect, "it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' [Cit.] `The problems of government are practical one...
...sembly has made a bad policy judgment . . . and [such a claim] should be directed to the General Assembly and the Governor rather than this Court." Rhodes v. State, 283 Ga. 361, 363, 659 S.E.2d 370 (2008). Because the "`"legislative purpose [of OCGA § 51-1-29.5(c)] is legitimate and the classification drawn has some reasonable relation to furthering that purpose, the classification passes [constitutional] muster.'" [Cit.]" Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 570(1)(b), 423 S.E.2d 235 (1992). 4. Appellants contend that OCGA § 51-1-29.5(c) violates due process because it does not define "gross negligence" and is thus unconstitutionally vague....
...en a slight degree of care" ([cits.]), or "lack of the diligence that even careless men are accustomed to exercise." [Cit.] Pottinger v. Smith, 293 Ga.App. 626, 628, 667 S.E.2d 659 (2008) (finding insufficient evidence of gross negligence under OCGA § 51-1-29.5(c)). Accordingly, OCGA § 51-1-29.5(c) satisfies "due process requirements, because it is not so vague and indefinite in its meaning that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application....
...Austin, 278 Ga. 844, 847-848(2)(b), 607 S.E.2d 569 (2005). See also Santana v. Ga. Power Co., 269 Ga. 127, 128(3), 498 S.E.2d 521 (1998). Appellants' additional constitutional vagueness challenge to the definition of "emergency medical care" set forth in OCGA § 51-1-29.5(a)(5) is not properly before this Court because it was neither raised in the trial court, nor distinctly passed on by the trial judge....
...ession a reasonable degree of care and skill[,]" and Georgia law has provided that "[a]ny injury resulting from a want of such care and skill shall be a tort for which recovery may be had." OCGA § 51-1-27. In 2005, the General Assembly enacted OCGA § 51-1-29.5(c), which provides that certain physicians and health care providers in certain situations are not liable unless they are shown to have been grossly negligent....
...The "limited activity in a specific industry" was the manufacturing and supplying of material containing asbestos for the use in buildings, one limited situation within the entire hazardous chemical industry. Id. In the case before us, the limited activity OCGA § 51-1-29.5(c) covers is the provision of medical emergency care after a patient has arrived in a hospital's emergency department or obstetrical unit, one limited situation within the scope of the entire health care industry. [1] Thus, OCGA § 51-1-29.5(c) is a special law and is subject to constitutional limitations as such....
...Thus, no constitutional attack on the standard of care provision in OCGA § 31-8-44 was raised and ruled upon in the Terrell County trial court. Therefore, Terrell County is inapposite and provides no support for the majority's holding. 2. Because OCGA § 51-1-29.5(c) is a special law, the Georgia Constitution of 1983 requires compliance with specific constitutional limitations....
...by a general law." Hudgins, supra, 193 Ga. at 623, 19 S.E.2d 508. Here, the General Assembly *83 has already enacted OCGA § 51-1-27, a general law which states the standard of care in medical malpractice cases to be "reasonable care." Because OCGA § 51-1-29.5(c) is a special law that regulates the same subject matter as OCGA § 51-1-27, it is unconstitutional under the Georgia Constitution of 1983. 3. Even if there were no general law on point, OCGA § 51-1-29.5(c) is an unconstitutional special law for its application of an unreasonable and arbitrary classification....
...rs could be sued because it singled out, through unreasonable classification, claims against asbestos manufacturers and suppliers from all other claims based on similar toxic substances. Id. at 110, 376 S.E.2d 880. Here, the question is whether OCGA § 51-1-29.5(c) is unreasonable or arbitrary in its classification. In determining whether the legislature's classification is unreasonable, we compare the statutory classification to the legislative purpose of the enactment. See State v. Martin, 266 Ga. 244, 246, 466 S.E.2d 216 (1996). In enacting OCGA § 51-1-29.5(c), the General Assembly found that there presently exists a crisis affecting the provision and quality of health care services in this state....
...The classification is unreasonable in that a physician who treats a patient for an emergency medical condition in an emergency room receives the statute's additional protection while a physician who treats the same condition in his office or on a house call does not. Because OCGA § 51-1-29.5(c) contains an unreasonable and arbitrary classification, it is an unconstitutional special law. For the aforementioned reasons, I respectfully dissent from the majority's decision to uphold OCGA § 51-1-29.5(c) against the challenge that it is an unconstitutional special law. I am authorized to state that Chief Justice HUNSTEIN and Justice THOMPSON join this opinion. NOTES [1] Although OCGA § 51-1-29.5(c) does not contain a "limited time frame," as mentioned in Celotex Corp....
...having a limited time frame. There is no requirement that a finite temporal application period exist in a statute to consider it affecting "a limited area or class," the definition of a special law. See Lasseter, 253 Ga. at 229, 319 S.E.2d 824. OCGA § 51-1-29.5(c) is a special law because it "affects a limited area or class."
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Wilson v. Inthachak, 317 Ga. 868 (Ga. 2023).

Cited 1 times | Published | Supreme Court of Georgia | Dec 19, 2023

...Angela Wilson, Warren’s daughter, sued Dr. Inthachak. The trial court granted Dr. Inthachak summary judgment on two bases. First, the trial court held that Wilson had shown “no clear and convincing evidence of gross negligence,” and that her claim thus failed under OCGA § 51-1-29.5, which requires a plaintiff in “an action involving a health care liability claim arising out of the provision of emergency medical care” to prove “gross negligence” by “clear and convincing evidence.”1 The court concluded that OCGA § 51-1-29.5 applied to Wilson’s claim—even though Dr. Inthachak was not physically present in the emergency room—because Dr. Inthachak “interpret[ed] the CT [scan] from the emergency department and fax[ed] his interpretation to the emergency 1 OCGA § 51-1-29.5 (c) says in full: 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 immedi...
...Inthachak provided an allegedly correct interpretation of Warren’s CT scan. (b) The Court of Appeals Opinions3 2 Specifically, the trial court found that “no jury issue exists as to whether the patient was emergent under OCGA § 51-1-29.5 [(a)] (5).” OCGA § 51-1-29.5 (a) (5) says: “Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, includ...
...Following the labels given by the Court of Appeals, we thus refer to them as the putative majority and putative dissent. 3 Wilson appealed, and all 14 voting members of the Court of Appeals concluded that the trial court’s grant of summary judgment was improper on both OCGA § 51-1-29.5 and causation grounds. As to the first ground, the Court of Appeals divided evenly (7 to 7) on the question of why summary judgment was improper based on OCGA § 51-1-29.5. On one side of the ledger, the putative majority agreed with the trial court that OCGA § 51-1-29.5 could apply in this case even though Dr. Inthachak was not in the emergency room, but then disagreed with the trial court’s conclusion that OCGA § 51-1- 29.5 must be applied at the summary judgment stage here and concluded that summary judgment based on OCGA § 51-1-29.5 was improper because a fact question existed as to whether Warren was in need of “emergency medical care.” On the other side of the ledger, the putative dissent concluded that summary judgment based on OCGA § 51-1-29.5 was improper because the statute cannot be applied in this case where “Dr....
...reverse the trial court’s order—is in fact no division at all for purposes of Article VI, Section V, Paragraph V.10 9 Specifically, the disagreement affects whether on remand, when the case goes to the jury, the trial court instructs the jury that it can apply OCGA § 51-1-29.5 if it determines that Warren was in need of “emergency medical care,” or whether the court does not instruct the jury that it may apply OCGA § 51-1-29.5 because Dr....
...17 Const. Art. VI, Sec. VI, Par. V (“The Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.”). The issue on which the Court of Appeals divided — whether OCGA § 51-1-29.5 (c) applies to a physician who provides services while not physically within the hospital emergency department — is one of gravity and great public importance. However, I fully expect that upon return of the case to the Court of Ap...
...Allowing the two competing Court of Appeals opinions to stand as the final word here puts the trial court into an untenable position on remand. The opinion authored by Judge Markle concludes that the applicability of the higher burden of proof set forth in OCGA § 51-1-29.5 (c) depends on whether the jury finds that Dr. Inthachak provided emergency medical care to Dorothy. In contrast, the 25 opinion authored by Presiding Judge McFadden would hold as a matter of law that OCGA § 51-1-29.5 (c) does not apply in this case. Therefore, even though Presiding Judge McFadden’s opinion does not address jury instructions specifically, it would preclude the trial court from instructing a jury to apply that burden of proof in this matter — regardless of whatever contrary arguments Dr....
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Watkins v. ANEGUNDI, 694 S.E.2d 647 (Ga. 2010).

Cited 1 times | Published | Supreme Court of Georgia | Mar 29, 2010 | 287 Ga. 133, 2010 Fulton County D. Rep. 1019

...Dickerson, Owen, Gleaton, Egan, Jones & Sweeney, Roger E. Harris, Gretchen H. Wagner, Atlanta, Forrester & Brim, Robert S. Lazenby, Gainesville, for appellees. THOMPSON, Justice. This case, in which plaintiff-appellant questions the constitutionality of OCGA § 51-1-29.5 on various grounds, is controlled adversely to plaintiff-appellant by Gliemmo v....