Courts Carve Out Exceptions to Georgia’s Emergency Care Tort Reform
By Robert A. Bitterman, MD, JD, FACEP
Contributing Editor, ED Legal Letter
In a series of recent decisions, the state’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 discuss cases in which the Georgia courts found "exceptions" to applying the tort reform act in emergency department cases. The May 2014 issue of ED Legal Letter focused on the court’s actions related to the "gross negligence" standard.1
Georgia’s legislature enacted tort reform in 2005 specifically to protect hospitals and providers of hospital-based "emergency medical care," including emergency physicians and on-call physicians, by increasing the burden of proof on plaintiffs in malpractice litigation.2 The statute reads:
"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."2,3
This "clear and convincing" evidence of "gross negligence" standard was upheld by the Georgia Supreme Court.4 As a consequence, plaintiff attorneys now endeavor to avoid application of the higher standard by asserting that the care provided in the emergency department was not "emergency medical care" as defined by the Georgia law.
The Case of Bonds v. Dr. Nesbitt
Mr. Bonds presented to the hospital emergency department with nausea, vomiting, abdominal pain, and dizziness a few days after an outpatient diagnosis of pneumonia. The emergency physician on duty, Dr. Nesbitt, promptly evaluated Mr. Bonds and ordered blood tests, blood cultures, EKG, CXR, and a CT scan of Mr. Bonds’ abdomen. He initiated treatment with IV fluids and IV pain medications, including Dilaudid and morphine.5
After a few hours, Dr. Nesbitt wrote an order to admit Mr. Bonds to the floor with a diagnosis of acute renal failure and hypertension, and documented that his patient’s condition had improved and was stable. No inpatient beds were available, so Dr. Nesbitt continued treating Mr. Bonds until the admitting physician came into the ED to take over his care. Before he was moved to a room, Mr. Bonds became "agitated, tossing on the bed and entangling himself in the wires from the machines" (most likely unrecognized hypoxia). After he was moved to the inpatient setting, Mr. Bonds "began thrashing about and complaining he could not breathe." A little while later he suffered a respiratory arrest and died.5
Mrs. Bonds sued Dr. Nesbitt for the death of her husband, alleging that Dr. Nesbitt failed to provide necessary emergency treatment, but the trial court threw out her lawsuit. The court decided that Dr. Nesbitt was providing "emergency medical care" as delineated by the Georgia tort reform statute and, therefore, the clear and convincing gross negligence standard applied — which it determined was impossible for Mrs. Bonds to prove.5
On appeal, Mrs. Bonds argued that at some point Mr. Bonds became stable and capable of receiving non-emergency medical services, and, therefore, the statute ceased to apply and she need only prove ordinary negligence by a preponderance of the evidence, not gross negligence by clear and convincing evidence.5
The court agreed with Mrs. Bonds, noting that the statute defines "emergency medical care" 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 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
The appellate court determined that initially there was no question that Dr. Nesbit was providing emergency medical care as defined by the statute: "Mr. Bonds was experiencing a medical condition with acute symptoms of sufficient severity, including pain, repeated vomiting, dizziness, and nausea, such that the absence of immediate medical attention could reasonably be expected to result in placing his health in serious jeopardy."5
However, it was then decided that the evidence was conflicting on the issue of whether Mr. Bonds at some point became stable and capable of receiving non-emergency medical services, thereby triggering an exception to the statute. Mrs. Bonds’ expert witness testified that Bonds’ condition never become stable while he was in the emergency room, while conversely Dr. Nesbitt determined at some point during his treatment Bonds was stable.5
Furthermore, the court said whether Mr. Bonds was ever stable was a question for the jury. Now a jury, not the courts, would decide whether Georgia’s tort reform statute applied, and, thus, juries would decide whether to award malpractice damages using the "clear and convincing gross negligence standard" or the "more likely than not ordinary negligence" standard.5 The case that followed Bonds in the appellate court highlights how much confusion the court’s ruling created.
The Case of Wadsworth v. PA-C Howland and Dr. Paustian
Ms. Wadsworth presented to the ED via EMS with pain increasing in her feet to the point that she could no longer walk. She also complained that her feet were cold and that she was unable to warm them. The triage nurse determined the patient’s condition to be "non-urgent," and noted that her feet were cold to the touch, but that she had "positive palpable" pulses in both feet.7
Mr. Howland, a physician’s assistant (PA-C), examined the patient and discussed his findings with Dr. Paustian, the emergency physician on duty. Dr. Paustian, however, never examined the patient.8 Mr. Howland considered three diagnoses: deep vein thrombosis, acute arterial occlusion, and cellulitis. He ordered a venous Doppler study, which was negative for thrombosis, and a CBC, which showed an elevated white blood cell count (WBC).7
Howland thought Wadsworth’s feet were cool, not "cold," which he attributed to her diabetes. He did note diminished pulses in Wadsworth’s feet, but he considered the pulses sufficient to rule out an acute arterial occlusion without the need to order a diagnostic study, such as an arterial ultrasound. Based on the elevated WBC, coupled with signs of redness and tenderness in Wadsworth’s lower legs and feet, Howland came to a diagnosis of cellulitis. He treated Wadsworth with IV antibiotics and IV narcotics in the ED, and then discharged her with a prescription for oral antibiotics and pain medication.7
Although Wadsworth wanted to be admitted to the hospital for observation, Howland deemed Wadsworth to be "relatively stable" during his examination, and he believed that her status had improved while she was in the emergency department. However, 12 hours after discharge, Wadsworth returned to the ED in critical condition with bilateral popliteal artery occlusions, which required below-the-knee amputations of both her legs.7
Wadsworth sued both Howland and Dr. Paustian and, at trial, the jury awarded her $5,000,000.7 The issue was exactly the same as in the Bonds v. Nesbitt case: Did the "exception" apply so that Wadsworth only had to prove ordinary negligence, not gross negligence by clear and convincing evidence? The trial judge had relied on the opinion of the appellate court in Bonds, holding that the jury was to decide if the PA-C and physician were providing "emergency medical care" or providing "medical care after the patient was stable and capable of receiving medical treatment as a non-emergency patient." Thus, the judge charged the jury via the verdict form as follows:
"If you find that the medical care provided by the defendants was emergency medical services,’ you should apply the standard of gross negligence proven by clear and convincing evidence.
"If you find that the medical care provided by the defendants was not emergency medical services,’ you should apply the standard of ordinary negligence proven by a preponderance of the evidence.
"1. We, the jury, apply the standard of care of:
• gross negligence.
• ordinary negligence."
The jury checked the "ordinary negligence" box, and attached the $5 million number for the plaintiff.7
On appeal, the defendants vehemently objected to the jury instructions, first arguing that whether a claim involves "emergency medical care" is a question of law for the court, not the jury, because it requires interpretation of the statute; and second, complaining that the language in the jury instructions didn’t follow the statute (the judge used the term "emergency medical services" instead of "emergency medical care"). The court bypassed the second issue and noted it already determined in Bonds v. Nesbitt that whether the care provided was "emergency medical care" was a question of fact for the jury to decide.8
The defendants also argued that the jury received no explanation or direction whatsoever concerning the medical terms and concepts contained in the definition of "emergency medical care" from expert witnesses or from the court. The appellate court brushed aside the defendant’s objections and allowed the jury’s decision to stand, stating that "none of the words or terms within that definition are beyond the ken of the average juror."8
The appellate court’s assertion on the "ken of the average juror" is rather remarkable and directly contradicted by the language of the statue. What "average juror" knows what constitutes "bona fide emergency services?" What "average juror" understands when "a medical or traumatic condition manifests by acute symptoms of sufficient severity ... such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy," much less what constitutes "serious impairment to bodily functions" or if and when a patient is "capable of receiving medical treatment as a non-emergency patient?"
The arguments made by the plaintiff and the defendants at the trial compared to their arguments proffered at the appellate level were also remarkable. At the trial, Wadsworth claimed she had an emergency medical condition (acute arterial insufficiency) that the defendants misdiagnosed and failed to stabilize by providing the necessary emergency treatment. Her expert witnesses testified unequivocally that her symptoms were limb-threatening, continued unabated both during and after her treatment in the ED, and only a narrow six-hour window existed to improve blood flow to her legs, which could not be done in an outpatient setting. Her experts further testified that cellulitis was also a "more life-threatening, more immediate type concern, emergency diagnosis" that necessitated treatment of the infection in the hospital.7
On appeal, however, Wadsworth argued that she was "stable and capable of receiving nonemergency medical treatment as a non-emergency patient" — that she did not receive "emergency medical care" as defined by the statute, thereby triggering an exception to the statute that allowed the jury to consider ordinary negligence under the preponderance of evidence standard.9
The defendants and their experts at trial asserted Wadsworth did not have an acute arterial occlusion when she presented to the ED, that she did not have an emergency medical condition, did not need emergency medical care or admission, and that she was stable at the time of discharge.7
On appeal, they argued exactly the opposite: that their subjective judgment of the patient’s condition didn’t matter. Rather, the patient’s objective medical condition and acute symptoms of severe pain, an inability to walk, feet cold to the touch, and diminished distal pulses made it plainly evident that she required "emergency medical care," as defined in the statute, and, therefore, the court should have applied the statute as a matter of law.9
It seems the jury may also have been confused by the judge’s charge on the different standards of liability.
If the jury truly believed Wadsworth was stable and only needed non-emergency medical treatment when it checked the "ordinary negligence" box on the verdict form, how could it award $5 million? The verdict clearly indicates that the jury did not believe Wadsworth was stable or capable of discharge from the ED; it’s obvious they determined the defendants misdiagnosed Wadsworth and discharged her when she was still in need of emergency medical care. That, in fact, was the plaintiff attorney’s closing argument at trial: "These defendants could have saved her legs. They had the chance. They had six hours. They had a six-hour window that we know in which they could have saved her legs, but they didn’t."7
In the end, it’s most likely the jury just went with its gut, deciding on the evidence that the PA-C and emergency physician should have better evaluated Ms. Wadsworth and should have diagnosed her emergency condition, and that their failure to do so resulted in her horrible outcome.
The real source of these adverse court opinions to providers is primarily the legislature’s inartful drafting of the statute, although the court’s interpretations certainly are a contributing factor.
In the Bonds v. Nesbitt case, the court should have argued that any patient admitted through the emergency department is not "capable of receiving medical treatment as a non-emergency patient," and, therefore, the patient was receiving "emergency medical care" so that the statute continued to apply until the patient was discharged from the hospital. The patient may be "stable," but the patient shouldn’t be deemed capable of receiving non-emergency care until leaving the hospital. Note that "stability" alone is insufficient to apply the exception to the statute; the patient must be stable "and capable of receiving medical treatment as a non-emergency patient."9
The legislature should have written the statute to encompass the full length of stay from ED visit through any necessary admission. There needs to be a "bright line" to application of the higher evidentiary burden, such that everyone knows it applies to all ED care and any resulting admission. It will not exactly encourage physicians to take emergency call for the ED if they don’t know in advance what standard of care will apply to their services, and instead will be subject to the whim of a lay jury deciding if their services constitute "emergency medical care."
Similarly, if the patient is not admitted, the statute still should be written to cover any and all care provided in the ED. The legislature intended the statute to apply to EMTALA-mandated services.10 The Wadsworth v. Howland case was essentially a "failure to diagnose an emergency medical condition case." Said another way, the defendants were negligent in providing the EMTALA-mandated medical screening exam, the sole purpose of which is to determine if the patient has an emergency medical condition. Thus, any examination and treatment provided in determining whether the patient had an emergency condition should automatically be deemed "emergency medical care" covered by the Georgia statute.
Not knowing in advance what standards of care apply until a jury decides if the care provided was "emergency medical care" as defined by the statute will also hamper insurance settlement discussions, predictions of loss costs, and, ultimately, impact the liability premiums charged to providers. It will also create inconsistency in the application of the tort reform law across the various regions of the state.
Undoubtedly, now that juries are charged with interpreting the statute, expect plaintiff attorneys to not only routinely claim that the patient was "stabilized and capable of receiving medical treatment as a non-emergency patient," but also to argue over whether the patient was provided "bona-fide emergency services" or the definition of a "nonemergency patient" — anything to create a jury question on whether the exception language of the statute should apply, and, thus, circumvent the legislature’s intent to provide a higher level of liability protection for providers of emergency department care in the state of Georgia.
Political expediency or the "half-a-loaf-is-better-than-nothing" theory may be the origin of the poor statutory drafting, but it sure creates havoc for providers and insurers, and is usually difficult if not impossible to fix after the fact.
Dr. Bitterman’s additonal comments: When will emergency physician groups learn that any patient with potential life- or limb-threatening presentations should NEVER be seen by a mid-level provider alone? The emergency physician should ALWAYS personally examine these patients in the ED.
- Bitterman, RA. Is Georgia’s Emergency Care Tort Reform Coming Apart? ED Legal Letter, 2014;25(5):49-55. For an additional detailed discussion of the gross negligence standard, and the role of expert witness testimony, see Sullivan W. "Gross Negligence": A Slippery Slope for Dubious Expert Testimony. Emergency Physicians Monthly, March 12, 2014.
- O.C.G.A. Section 51-1-29.5 (2013). Georgia Tort Reform Act of 2005.
- O.C.G.A. Section 51-1-29.5 (2013); emphasis added. The more beneficial standards of liability also apply to "emergency medical care" provided in an obstetrical unit (labor and delivery unit), or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.
- Gliemmo v. Cousineau, 694 S.E.2d 75 (Ga. 2010). See also Watkins v. Anegundi, 694 S.E.2d 647 (Ga. 2010).
- Bonds v. Nesbitt, 747 S.E.2d 40 (Ga. Ct. App. 2013), certiorari denied.
- OCGA § 51129.5(a)(5), emphasis added.
- Wadsworth v. Howland, No. 10C-13313-4 (Ga., Gwinnett Co. St. Sept. 24, 2012).
- Howland v. Wadsworth, No. A13A0927 (Ga. Ct. App. Oct. 9, 2013), certiorari denied.
- See, for example, Quinney. v. Phoebe Putney Memorial Hospital, in which the court of appeals held that the plaintiffs did not show that the patient was ever capable of receiving medical treatment as a nonemergency patient. In fact, the plaintiffs demonstrated just the opposite: that emergency medical care was necessary because the patient’s health was in serious jeopardy. Therefore, the court found that the services rendered by the defendants constituted "emergency medical care" as defined by the statute, and accordingly applied the higher evidentiary burden of gross negligence. Quinney. v. Phoebe Putney Mem. Hosp., No. A13A1616. (Ga. Ct. App. Nov. 21, 2013).
- "In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly" OCGA § 131(a). Restina v. Crawford, 424 S.E.2d 79 (1992).