Is Failure of Er to Treat with Antibiotics Leg Gash in River “Gross Negligence” in Georgia?

Atlanta area news coverage this spring has been dominated by the story of a young woman graduate student who suffered a gash on her leg in an accident on a homemade zip line during a rafting trip on the Tallapoosa River. She was taken to the emergency department of the local hospital in a suburban county where, according to news reports, the gash on her leg was stapled shut. I have not seen media reports as to whether or not she was given antibiotics at that time.

Afterward she developed the flesh-eating disease necrotizing fasciitis, resulting in amputation of a leg, other foot and both hands. The tragedy of this incident and its aftermath is almost unimaginable.

The first question that arises is whether the original medical treatment of the cut leg measured up to the standards of care. I’m not a doctor, and I am quite sure if there were litigation regarding the ER treatment there would be a platoon of medical experts deployed to say nothing was done wrong. However, I did run across an article by Greer E. Noonburg, MD,  “Management of Extremity Trauma and Related Infections Occurring in the Aquatic Environment, ” published in the Journal of the American Academy of Orthopedic  Surgery, July/August 2005 vol. 13 no. 4 243-253. 

Wounds sustained in oceans, lakes, and streams are exposed to a milieu of bacteria rarely encountered in typical land-based injuries.. . . Failure to recognize and treat these less common pathogens in a timely manner may result in significant morbidity or death. . . . Freshwater wounds should be managed with ciprofloxacin, levofloxacin, or a third- or fourth-generation cephalosporin (eg, ceftazidime). . . . Appropriate management of aquatic wounds requires recognition of the mechanism of injury, neutralization of venom, antibiotic administration, radiographic assessment, surgical débridement with irrigation, wound cultures, and structural repair or amputation as indicated by the severity of the injury. [abstract]

If there were not appropriate debridement of a deep wound sustained in a river and administration of antibiotics, that would raise questions about compliance with the standard of care.

The second question arises from the Georgia tort reform law that was passed in 2005. OCGA 51-1-29.5 provides:

(c) 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.

(d) 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.

This statute is widely viewed as providing virtual immunity from civil accountability for ER physicians and hospital departments. The statute establishes a nearly insurmountable barrier but not absolute immunity.  We cannot assume, based on news stories, that debridement and antibiotics were not administered. And I will not now speculate whether, if were not done, a failure to surgically debride a wound and administer antibiotics when a patients is taken to an ER after sustaining an open gash in a river would be enough to show “clear and convincing evidence” of “gross negligence.”