2020 Georgia Code
Title 51 - Torts
Chapter 1 - General Provisions
§ 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).

- 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.' "

- 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). For annual survey on trial practice and procedure, see 71 Mercer L. Rev. 305 (2019).

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).

- 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).

- 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).

- In a medical malpractice action against an emergency room doctor, O.C.G.A. § 51-1-29.5(c)'s gross negligence standard applied not only to the physician but also applied with regard to apportioning fault to non-parties (radiologist and nurses) under O.C.G.A. § 51-12-33(c) when those non-parties also provided emergency care. Southwestern Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 819 S.E.2d 696 (2018).

In a claim for wrongful death and other damages in which jurors allocated only 20 percent of the fault to the skilled nursing facility, the trial court did not err in allowing the jury to consider whether to apportion fault to non-parties at the trial and the plaintiffs were not entitled to a directed verdict on the fault allocation issue because the jury would have been authorized to find by clear and convincing evidence that three non-party medical providers acted with gross negligence as the facility's expert asserted that the breaches of care committed by the three non-parties were egregious, resulting in the provision of astonishingly poor care to the patient in the emergency room. Lowndes County Health Services, LLC v. Copeland, 352 Ga. App. 233, 834 S.E.2d 322 (2019).

- 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).

- 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).

- 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), cert. denied, No. S18C0468, 2018 Ga. LEXIS 344 (Ga. 2018).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- In a medical malpractice action against an emergency room doctor, in which a patient's spinal canal hematoma was not diagnosed or treated, resulting in paraplegia, the gross-negligence standard of O.C.G.A. § 51-1-29.5 applied; the jury was not misled by opening statements into believing the jury could find liability under an ordinary negligence standard. Southwestern Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 819 S.E.2d 696 (2018).