Panel: OK to Let Jury Sort Out ER Negligence Standard
Ruling upholding $5M verdict comes as Georgia Supreme Court grapples with 2005 statute designed to reduce liability
As the Georgia Supreme Court wrestles with when to apply a heightened negligence standard for medical malpractice cases against emergency room personnel, a panel of the state Court of Appeals has approved a trial judge's decision to let a jury figure it out.
The Oct. 9 appeals court decision upholds a verdict handed down last year by a Gwinnett County jury in favor of a woman whose legs were amputated a few days after she was sent home from the emergency room. The jury decided the 2005 gross negligence standard that's supposed to make it harder for plaintiffs to win ER cases didn't apply in this case and came back with a $5 million award.
The 2005 statute says no health care provider can be held liable for "emergency medical care in a hospital emergency department" unless the provider is shown to have committed gross negligence; other med-mal cases require plaintiffs to prove that defendants committed only negligence.
Plaintiffs' lawyers have in some ER cases argued that because defendants didn't treat the patients' situations as emergencies, an ordinary negligence standard, not the gross negligence standard, should apply.
During the past year, the Court of Appeals has issued a handful of opinions indicating juries may be called on to decide what standard applies. But last week's ruling appears to be the first examining a post-verdict appeal of a trial judge's decision to have the jury pick the standard.
"What this case confirms is what we've been saying all along," said lawyer Virgil Adams of Macon, who tried the case for the plaintiff and argued the appeal with Fort Valley lawyer Charles R. Adams III (no relation). "And that is whether a patient receives emergency care or is stable is a jury question....The beauty of this case, too, is it went to the jury on both ordinary negligence and gross negligence."
The latest ruling is a win for plaintiff Ellen Rebecca Wadsworth, who in November 2008 woke up in pain at her home in Warner Robins and was taken by ambulance to Houston Medical Center. Age 61 at the time, Wadsworth reported painful feet.
According to Wadsworth's lawyers, physician's assistant Gregory Howland ruled out vein problems by conducting an ultrasound, and he eliminated the possibility of an acute arterial problem because he felt a pulse, albeit a weak one, in her feet. Howland determined that Wadsworth had a skin infection and sent her home with antibiotics and pain medications. Paul Paustian, the supervising doctor, consulted with Howland but never examined Wadsworth, according to the appeals court ruling.
About 12 hours later, Wadsworth was found unresponsive at her home and was transported back to the hospital by ambulance. Blockages were found in both legs, which had to be amputated below the knee a few days later.
Wadsworth sued Howland, Paustian and their employer Georgia Em-I Medical Services. The suit was filed in Gwinnett because the registered agent of the employer was located there.