CopyCited 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...
CopyCited 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....
...liability for any act or any omission to act arising out of such service if such
person was acting in good faith within the scope of his or her official actions
and duties and unless the damage or injury was caused by the willful or wanton
misconduct of such person.”); OCGA §
51-1-29 (“Any person, including any
person licensed to practice medicine and surgery pursuant to Article 2 of
Chapter 34 of Title 43 and including any person licensed to render services
ancillary thereto, who in good faith renders emergency c...
...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....
CopyCited 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....
CopyCited 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."
CopyCited 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....
