Panel Adds Piece to ER Puzzle
Court of Appeals rules gross negligence standard applies but lawsuit should go to jury; revives EMTALA claim
As it wrapped up its end-of-term cases last month, the Georgia Court of Appeals added another piece to the puzzle that the new standard for medical malpractice cases against emergency room personnel has created for the courts.
The Nov. 21 decision by a three-judge panel said a Dougherty County judge was correct that the 2005 statute, which is supposed to make it harder for plaintiffs to win ER cases, applied to the case of a man who became irreversibly paralyzed by the time he arrived at another medical center to which Phoebe Putney Memorial Hospital's ER transferred him. But the panel reversed the grant of summary judgment to the defense, saying the plaintiffs should be able to argue to a jury that they met the new standard, which 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, a higher burden for plaintiffs than the usual negligence standard. At issue in the case is both when the gross negligent standard applies and what consttutes gross negligence.
Whether and when it's appropriate for a jury to decide either of those questions has been a source of much debate in the appellate courts. But the Nov. 21 decision added another wrinkle, reviving the plaintiffs' additional claim under a federal statute that says a hospital generally cannot transfer a patient unless the patient's condition has stabilized.
Jeffrey Braintwain, a lawyer at Huff, Powell & Bailey in Atlanta who was unable to persuade the Court of Appeals to affirm the grant of summary judgment for a doctor and others who saw Douglas Quinney at Phoebe Putney's ER in 2009, said the state's appellate courts have produced different lines of decisions on ER cases, and that's frustrating to him as a practitioner. "To me," he said, "even though we're getting some guidance, there's plenty of questions still out there."
But Macon attorney Virgil Adams, who represents Quinney and his wife, said the courts have answered the big questions: The gross negligence standard does not automatically apply in a malpractice case that stems from treatment in an ER, and, even when it does apply, a defendant isn't necessarily entitled to summary judgment. Quinney's case, Adams said, simply presented questions of fact for a jury.
According to the appeals court ruling, evidence favorable to the plaintiffs showed that a Columbus neurosurgeon implanted a spinal cord stimulator to relieve a neuropathic condition in Quinney's feet. A few days later, when Quinney was screaming with back pain and told his wife he could not feel his legs, an ambulance brought him to the ER at Phoebe Putney in Albany.
After examining Quinney and reviewing the results of a CT scan, a physician at the Phoebe Putney ER, Raymond Gutierrez, decided Quinney did not have a spinal canal abscess or hematoma. According to the appeals court opinion, however, Gutierrez was not aware that Quinney could not lie on his back for the CT scan, even though it was noted in medical records; Gutierrez later testified he did not know if this fact would have changed his mind about the results of the scan.
Gutierrez called the Columbus neurosurgeon who had performed the spinal cord stimulator implant surgery. After Gutierrez reported the results of a general neurological examination and the CT scan both were normal, the Columbus surgeon agreed to have Quinney transferred to him at a medical center in Columbus.
About three hours after Gutierrez ordered the transfer, Quinney was discharged and transported by ambulance to the medical center in Columbus. When Quinney arrived there about two-and-a-half-hours later, the appeals court opinion said, he was irreversibly paralyzed from a spinal cord compression caused by an expanding spinal cord hematoma.
Quinney and his wife sued Phoebe Putney, Southwestern Emergency Physicians, Gutierrez and two nurses responsible for Quinney's care. Dougherty County Superior Court Judge Stephen Goss granted the defendants' motions for summary judgment under the gross negligence standard adopted by the General Assembly as part of the 2005 tort reform package.