ER Malpractice Claims Are DOA in Georgia

Occasionally we get calls from potential clients who are interested in a possible malpractice suit based on alleged malpractice in a hospital emergency room. Even if the medical treatment appears to fall short of an appropriate standard of care, we have to explain to them that as a practical matter there is no case. The Georgia General Assembly chose in 2005 to change the law so that ER staff cannot be held liable for damages “unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.”  The most common definition of “gross negligence” is “reckless disregard for the safety of a patient,” which is almost impossible to prove in the emergency room.

The practical effect is virtual immunity from civil liability for any ER physician who cannot be clearly proven to be drunk or on drugs at the time of the incident. Virtually no attorneys are taking ER liability cases in Georgia  because even if it is a legitimate case of malpractice, and even after you invest hundred of hours and $50,000 to $100,000 in out of pocket expense, you still almost have to prove that the doctor was drunk or intended to harm the patient.

Now Senate Bill 286 would replace “showed gross negligence” with “failed to meet the applicable standard of care.”  That is still a very tough standard to meet, and the defense would probably still win 80% of the time, but in an egregious case it would be at least possible to bring a case.  It is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. However, the Medical Association of Georgia and Georgia Hospital Association strongly oppose it.

Due to the power of the lobbying forces arrayed against it, however, I will be utterly astonished if it passes.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury (including spinal cord and brain injuries) in cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state.  Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck and bus accidents and defectively manufactured products.