New ED Protections Already Challenged

In Georgia, statutory protections for emergency physicians (EPs) have survived two constitutional challenges.

The 2005 enactment of tort reform in Georgia “has been beneficial to all physicians, but is particularly helpful to those providing care in an emergency department setting,” according to Joe Cregan, vice president and general counsel at MagMutual Insurance Company, an Atlanta, GA-based medical professional liability insurance company.

Georgia’s tort reform act of 2005 contained a section that changed the standard of proof in cases involving any physician providing care in an emergency setting to gross negligence. “So in order to find a medical provider to be liable, you would have to prove the physician’s conduct constituted gross negligence — essentially, a gross disregard for the care of the patient,” says Cregan.

Secondly, the new law upped the evidentiary standard from preponderance of the evidence to a standard of clear and convincing evidence. “What this means is that it is now more difficult for a plaintiff’s lawyer to establish liability in an ED setting,” he says. “Once those provisions were enacted into law, we expected there would be constitutional challenges, particularly on the issue of equal protection, among other things.”

Two Georgia Supreme Court cases have already challenged the provisions. The first was Gliemmo v. Cousineau, a March 2010 decision involving the emergency treatment of a female patient for what later turned out to be a stroke.

“The ED doctor was being sued because he had sent the patient home earlier in the day without doing a CT scan or [magnetic resonance imaging],” says Cregan. “The case was dismissed by the trial court on the grounds that it didn’t meet the standard of gross negligence.”

The plaintiffs appealed, arguing the tougher negligence standard for emergency medicine violates the state constitution. The Georgia Supreme Court disagreed, upholding the gross negligence standard, and thus, the statute survived.

The next case, Watkins v. Anegundi, involved a separate challenge to the ED gross negligence standard that involved whether the expert affidavit attached to the plaintiff’s original complaint alleged gross negligence. “The determination of the trial court was that the affidavit did not establish gross negligence occurred,” says Cregan. “The Supreme Court, citing the Gliemmo case from two weeks earlier, agreed, again finding the statute to be constitutional.”

The first case was a 4-3 decision and the second was a 7-0 decision, both in favor of the constitutionality of the gross negligence standard in ED care. “Since both cases were decided favorably, it’s clear that in Georgia, going forward, that emergency room care is going to be protected to a higher degree,” he says.

Since 2005, MagMutual’s reaction to tort reform has been to file and receive three rate decreases for EPs in Georgia, reports Cregan. “The statute enacted in 2005 has survived its most difficult constitutional challenge,” he says, adding that there are still two undecided cases in which plaintiffs allege the ED statute’s language is unconstitutionally vague.

Cregan says it appears that plaintiff lawyers have abandoned further direct challenges to the constitutionality of the emergency care statute and, instead, are attacking their cases factually. For example, they are focusing on how they can demonstrate that the patient’s presentation to the ED was not truly an emergency.

“Or sometimes, they argue that the emergency situation was resolved before the allegedly negligent care took place, so they can get that analysis back to an ordinary negligence standard,” Cregan says.