Interpretation of Georgia’s ER Statute

In a decision in November 2015, the Georgia Supreme Court has provided for a greater understanding of Georgia’s Emergency Room statute, O.C.G.A § 51-1-29.5.  That statute provides tort immunity arising out of emergency medical care unless the physician or other health care provider is shown by clear and convincing evidence to have been guilty of gross negligence as opposed to ordinary negligence.

The Case – What Happened at the ER

In this case, a six month old child fell while in the custody of a babysitter and was taken to the Phoebe Putney emergency room.  A physician assistant examined the child and found no signs of the need to be examined by a physician or for more testing, and the child was discharged.  The child appeared normal for the next two days but then stopped breathing and was readmitted to the hospital where the child was found to have a skull fracture and surgery was performed.  The child suffered brain damage and now suffers severe developmental deficiencies including an inability to walk or talk.

The Takeaways – ER Statute

In the trial court, it was held that the hospital and its staff were not entitled to the heightened scrutiny of the ER statute.  The Georgia Court of Appeals reversed, and the Supreme Court of Georgia affirmed that reversal.  In doing so, the Supreme Court provided the following guidance:

  • Routine medical services provided in an ER setting do not receive the benefit of the statutory protection. An example would be routine flu shots administered in an ER.
  • If patients present themselves and assert that they require emergency care, the protection of the statute will generally be available, even if the diagnosis at the time is that the patient did not require, or no longer needs, emergency treatment. Even if the health care provider mistakenly concludes that the patient has stabilized or does not require emergency treatment, the statute will provide protection if “objectively” the patient appeared to initially need “emergency medical care.”
  • While the health care provider’s subjective opinion regarding the patient’s condition is not controlling, it will be relevant evidence to be considered by the trial court.
  • The patient’s symptoms or diagnosis after emergency department care will not be relevant to the question of whether the patient presented for emergency medical treatment initially.

Nguyen v. Southwestern Emergency Physicians, PC, 298 Ga. 75 (2015).

ER Statute

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