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In a series of recent decisions, the Georgia’s appellate and supreme courts diluted application of the "clear and convincing gross negligence" standard installed by Georgia’s tort reform statute; and they have also advanced "exceptions" to the law that allow plaintiff attorneys to circumvent the legislature’s intended tougher standards required to prove medical malpractice.
This article will focus on the court’s actions related to the "gross negligence" standard; a forthcoming ED Legal Letter issue will address the growing number of circumstances in which the Georgia courts have found "exceptions" to applying the tort reform act in emergency department cases.
In 2005, the Georgia legislature enacted a broad package of medical malpractice reforms, known as the Georgia Tort Reform Act, intended to ameliorate the "crisis affecting the provision and quality of health care services in this state" due to the escalating premiums and diminishing availability of medical liability insurance.1 The two most significant and impactful elements of the law were its cap on non-economic damages for all medical malpractice claims and, specific to hospital-based emergency care, a more difficult burden of proof for plaintiffs when suing the hospital or physicians providing emergency care, such as the emergency physicians and on-call physicians in the ED, or obstetricians in the labor and delivery unit.1
In the first case to reach the Georgia Supreme Court, the justices unanimously declared the statutory non-economic damages cap of $350,000 to be unconstitutional.2 It held that the cap violated the state’s constitutional right to trial by jury, noting that their constitution plainly states that "the right to trial by jury shall remain inviolate."3 To quote the Georgia chief justice: "The very existence of the caps, in any amount, is violative of the right to trial by jury."2
However, the Georgia Supreme Court, in a sharply divided decision, did uphold, at least for emergency departments, the more difficult burden of proof/higher standards of liability necessary to prove a claim of malpractice against providers of emergency care.4 The implementing statutory language is:
"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."1,5
Unquestionably, by requiring plaintiffs to prove emergency physicians or hospitals committed gross negligence by a clear and convincing standard (rather than "ordinary negligence" by the usual "preponderance of the evidence" — a.k.a. the "more likely than not" standard), the legislature made it very difficult for plaintiffs to win malpractice cases related to emergency care. Early cases, such as the Johnson v. Omondi case, which is discussed at length below, seemed to bear out that notion.6
For example, in Pottinger v. Smith, the plaintiff incurred multiple injuries in a motorcycle accident. After evaluation in the emergency department by Dr. Pottinger, an emergency physician, the plaintiff was admitted to the hospital for neurological observation by the on-call neurosurgeon. In the ED, Dr. Pottinger obtained a head CT, spinal imaging, and X-rays of the patient’s left tibia and fibula.7 Dr. Pottinger relied on the hospital’s radiologist to interpret the X-rays; the radiologist found a "minimally displaced fracture of the left fibular head" and "no other fracture or dislocation."7
Three weeks later, an orthopedic surgeon read the same the lower extremity X-rays done in the ED and found a "more serious fracture that required surgery" (the opinion doesn’t reveal exactly what was fractured). Smith subsequently sued Dr. Pottinger, claiming that the doctor’s failure to read the X-rays herself, failure to discover the "serious fracture," and failure to promptly consult an orthopedic surgeon was "gross negligence." The plaintiff even obtained an emergency physician "expert," who opined that Dr. Pottinger’s reliance on the radiologist to read the X-rays was itself "grossly negligent."7
Fortunately, the court rejected the plaintiff’s "expert" opinion, noting that Georgia defines "gross negligence" as "the equivalent to the failure to exercise even a slight degree of care," and that relying on a trained, credentialed radiologist to interpret X-rays could hardly be judged a failure to exercise a slight degree of care.7 The court found its decision as "plain and indisputable," stating that "even assuming there was some evidence to create a jury issue as to whether Dr. Pottinger’s actions were negligent, there is no evidence, and certainly no clear and convincing’ evidence by which a jury could conclude the Pottinger failed to exercise even slight care and was, therefore, grossly negligent."7
As a result of favorable court decisions such as Pottinger, the state’s largest liability insurance carrier, MagMutual, has provided a series of premium rate decreases for emergency physicians in Georgia during the past half-dozen years.8 However, celebration in the emergency medical community may be short lived.
In 2007, a trial court threw out Johnson’s lawsuit against Dr. Omondi, also an emergency physician, stating that there was no way a jury could find in a clear and convincing fashion that the physician committed gross negligence. In other words, the judge dismissed the case as a matter of law, preventing the case from ever reaching a jury just like in the Pottinger case (called dismissal on a "motion for summary judgment," which normally is a very difficult threshold for defendants to attain). In 2012, the trial court decision was upheld by the Georgia Court of Appeals.6
The facts of the case are illustrative to understanding how the Georgia Supreme Court ultimately overturned the appellate court’s decision and, thus, forced the physician to eventually face a jury trial for allegedly providing grossly negligent care in the emergency department.
Shaquille Johnson, who was 15 years old, presented to the ED one week post-arthroscopic knee surgery complaining of chest pain. He was triaged by a nurse, and Dr. Omondi obtained a history, performed a physical exam, reviewed the vital signs and pulse oximetry, administered anti-inflammatory medication (Toradol), which entirely resolved the patient’s symptoms, and obtained an EKG and chest X-ray, which he interpreted as negative. The physician considered but ruled out asthma, pericarditis, pneumothorax, myocardial infarction, and pulmonary embolism. He discharged the teenager with a diagnosis of pleurisy and a prescription for an anti-inflammatory agent, instructing him to return to the ED if his symptoms continued. Two weeks later, Johnson returned to the ED and rapidly died from bilateral pulmonary embolisms (PE).6,9
The family sued Dr. Omondi for money damages. Their professional experts testified that the 15-year-old’s symptoms were "classical" for PE, the response to Toradol "totally irrelevant," and reliance on improvement with Toradol to rule out PE "ridiculous." The experts also opined that Dr. Omondi misread the EKG, misread the CXR, and "grossly deviated" from the standard of care by failing to order a D-dimer, lung scan, ultrasound, and/or CT scan to rule-out pulmonary embolism.6,9
Nonetheless, the lower courts ruled that the plaintiff failed to overcome the "greater quantum and a higher quality of proof" required under Georgia’s new "gross negligence" by "clear and convincing evidence" standard.6 Under long established precedent, the Georgia Supreme Court defined "gross negligence" as "the absence of even slight diligence, and slight diligence is defined as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care, or lack of diligence that even careless men are accustomed to exercise."4
That Court has also defined "clear and convincing evidence" as "an intermediate standard of proof," greater than "the preponderance of evidence," but less than the "beyond a reasonable doubt" standard applicable in criminal cases.10
Thus, the lower courts held that in order for the plaintiffs to reach a jury trial, they must demonstrate that a genuine issue of material fact existed — not as to whether Dr. Omondi exercised ordinary care (i.e., that degree of care and skill customarily exercised by the medical profession) — but, rather, they must show the existence of "clear and convincing" evidence that Dr. Omondi did not exercise even slight care.6
In the judgment of the trial judge and the appellate court judges, Dr. Omondi clearly provided at least a "slight degree of care," and, accordingly, they determined that no reasonable jury could conclude in a clear and convincing manner that Dr. Omondi was grossly negligent.6
The high court began its analysis by acknowledging that Dr. Omondi was a physician who was providing emergency medical care in a hospital emergency department as contemplated by the Georgia Tort Reform Act. Accordingly, it was one of those cases in which the state legislature had placed a higher evidentiary burden on plaintiffs such as Johnson (i.e., any departure from accepted standards of care must be shown, by clear and convincing evidence, to be gross negligence).1,9
The court laid out the definitions in the statute, as noted in the appellate opinion, but also highlighted the fact that the case was a "motion for summary judgment," not a decision on the merits of the case. Thus, to prevent the lawsuit from being dismissed, the plaintiff only needed to present sufficient evidence that raised a genuine issue of material fact. It would then be up to the fact finder — the jury — to decide whether the facts constituted sufficient evidence of gross negligence.9
The court accepted the premise, as in the Pettinger case, that courts could resolve issues of gross negligence on their own in "plain and indisputable cases." However, it looked at the same facts, the same evidence, and the same testimony as the trial and appellate courts and concluded just the opposite — that there were genuine factual issues under which a reasonable jury could find by clear and convincing evidence that Dr. Omondi was grossly negligent. The Georgia Supreme Court reversed the lower court opinion and left Dr. Omondi to face a jury trial in the near future.9
The court focused and relied heavily on the expert testimony provided against Dr. Omondi. As noted above, the medical experts opined that Dr. Omondi’s failures amounted to "gross deviations" from the required standard of care and proximately caused Johnson’s death.9
In addition to the evidence provided by the plaintiff’s experts, Dr. Omondi had himself acknowledged that he had misread the EKG by failing to note the Q3 abnormality, and that the left ventricular hypertrophy shown by the EKG and the CXR was a condition that could indicate a pulmonary embolism. Dr. Omondi also admitted that a pulmonary embolism cannot be seen on an X-ray, and that the proper way to identify a pulmonary embolism is through a CT scan. He testified that he could have ordered a CT scan, and that a CT scan is the only test that is needed to diagnose a patient who may have a pulmonary embolism.9
The experts further testified that Dr. Omondi’s actions amounted to gross negligence under the customs and standards of emergency physicians in similar circumstances. While the court recognized that "a mere conclusory expert opinion with respect to the existence of gross negligence does not create a jury issue,"11 that principle did not apply in this case since the medical experts’ opinions were based upon specific facts showing the manner in which Dr. Omondi’s actions departed from the standard of care.9
Consequently, the Georgia Supreme Court determined that there was sufficient evidence that "a reasonable jury could find, by clear and convincing evidence, that in addressing Johnson’s symptoms, Dr. Omondi acted with gross negligence (i.e., that he lacked the diligence that even careless men are accustomed to exercise).’"9
Note that the court’s reliance on the expert testimony will only encourage plaintiffs, and consequently their "expert," to routinely bellow harsh outlandish accusations and ad hominem attacks on physician defendants in an effort to avoid summary judgment under Georgia’s gross negligence standard. Every claim will allege the physician’s examination and medical decision-making was "grossly deficient," "grossly negligent," or a "gross deviation" from the standard of care; and every rejoinder by the defendant will be labeled "ridiculous" or "totally irrelevant."
Indeed, as one of the judges wrote: "If an expert affidavit is all that is needed to preclude summary judgment, then Georgia’s tort reform statute would be rendered meaningless."9
The court also made a big deal of the emergency physician’s failure to order the proper diagnostic test to rule out a PE. Dr. Omondi did not order the chest CT simply because he judged that a pulmonary embolism was so unlikely that the test was not indicated, which the medical experts opined was due to his failures to properly assess and recognize the classic symptoms of the emergency condition.
The court distinguished Dr. Omondi’s case from the Pottinger case by noting that Dr. Pottinger had ordered the correct diagnostic test and then relied on another professional’s interpretation of the test to determine the course of treatment. The Georgia Supreme Court agreed that in those circumstances, a reasonable jury would not be able to find that the physician "failed to exercise even slight care and was, therefore, grossly negligent." Dr. Omondi, however, did not order the correct test, and moreover, unlike Dr. Pottinger, Dr. Omondi did not rely upon another physician’s findings in his assessment; rather, he read and misinterpreted Johnson’s chest X-ray and EKG results himself.9
In fact, Dr. Omondi’s circumstances were strikingly similar to those in a 2012 appellate decision, Knight v. Roberts, which ruled that an emergency physician was not entitled to summary judgment in a malpractice lawsuit based upon evidence that he had failed to consider and obtain a CT scan in a patient with chest pain to diagnose an aortic dissection.12 The emergency physician had obtained a chest X-ray, but the plaintiff’s experts claimed that the chest X-ray was not the correct diagnostic test to rule out a dissection.12
Not every patient presenting to the ED with chest pain, abdominal pain, or a headache needs a CT to rule out PE, aortic dissection, appendicitis, or a subarachnoid hemorrhage. Georgia’s tort reform was intended to allow physicians to use their expertise and judgment to discern when CTs or other diagnostic studies are indicated, without being subject to litigation every time an expert witness retrospectively with hindsight bias disagrees with that judgment. The end result of court cases like Omondi, is that whenever there is a mere scintilla of consideration given to these major diseases, emergency physicians will be highly motivated to "just order the test" as defensive medicine, tests which are not without risks themselves. The physician’s threshold for doing the test may end up being much lower than it would otherwise be, based purely on competent clinical practice.
The Omondi decision may also incite emergency physician groups to insist that their hospitals require the radiologists to read all X-rays and imaging studies in real time before the patient leaves the ED. Not only is this good care (and it should be the standard of care with today’s teleradiology technology), but it would insulate the emergency physicians to some degree from medical malpractice claims due to Georgia’s gross negligence law when relying on the radiologists to interpret the diagnostic studies.
The net result of the Omondi decision, from a litigation perspective, may mean that more malpractice claims in Georgia will not be decided on a motion for summary judgment, but will instead proceed to a jury trial. Not ideal, but it doesn’t mean that the legislature’s intent in enacting tort reform will have been frustrated. As one of the justices aptly noted at trial: "It always will be harder to prove gross negligence’ than ordinary negligence,’ and it always will be harder to prove fault by clear and convincing evidence than by a mere preponderance of the evidence."9 Thus, no one should be surprised that emergency department malpractice cases that come under the Georgia law produce far more defense verdicts at trial than in ordinary malpractice cases. After all, it should be awfully difficult to prove that a conscientious, caring, and compassionate emergency physician "failed to exercise even a slight degree of care" when examining and treating patients in the emergency department.