- Medical Malpractice
In a recent appellate case, a husband and wife sued a hospital claiming professional negligence and violations of the Federal Emergency Medical Treatment and Labor Act (EMTLA). They claimed the defendants did not provide the husband with necessary medical treatment while he was in the ER.
The husband had gone into the hospital to have a neurosurgeon implant a spinal cord stimulator in his back for a neuropathic condition. A few days after he was discharged, he woke with severe pain. One of his legs was so weak he couldn’t stand. He started screaming in pain and his wife called 911. By the time the ambulance got there, the husband was unable to move one of his legs.
In the ER, he was triaged by a nurse who categorized him as a “level 2” patient, which meant there could be serious complications if he didn’t receive immediate medical attention. The husband rated his pain at 9 out of 10.10 signified the worst pain. A doctor examined him to evaluate his alertness, orientation, his nerve responses and motor deficits. The doctor didn’t perform a complete neurologic examination.
Instead he conducted a CT scan of the man’s spine. The radiologist did not find an abscess or abnormal fluid in the place where the man’s spine had been implanted with a stimulator. The doctor, however, did not realize that the man had not laid on his back for the CT scan. Although the man remained symptomatic, the doctor didn’t perform more examinations. He concluded it wasn’t possible that the problem was an abscess or hematoma.
The doctor called the neurosurgeon that had implanted the stimulator to talk about the man’s status. The doctor ordered the man to be transferred to the neurosurgeon’s location for further examination by him. The man’s vital signs were worse when the doctor discharged him than they were when he was admitted.
By the time he arrived at the medical center to see the neurosurgeon, the man was irreversibly paralyzed. He had suffered spinal compression from a spinal canal hematoma.
He sued the hospital where the emergency was and the doctor who had ruled out a hematoma. The defendants moved for summary judgment, arguing that they were immune from suit because the negligence claims arose from emergency care. The trial court granted summary judgment. Because the negligence claim arose from emergency care, the plaintiffs had to show clear and convincing evidence of gross negligence under OCGA § 51-1-29.5. The man appealed, claiming he had not received emergency services.
A Georgia appellate court explained that the statute’s definition of emergency services are situations in which there are acute symptoms, including severe pain, such that failing to receive medical attention could result in serious jeopardy, impairment or dysfunction. The husband and wife argued that the husband was wrongfully treated as a stable patient, and therefore the statute covering emergency care should not apply to their cause of action
The appellate court explained that the defendants began caring for the plaintiff in the ER using techniques of emergency medical care until he was “stabilized.” Therefore the plaintiff had to meet a higher evidentiary burden to show gross negligence. The appellate court cited the statute’s definition of gross negligence as the absence of even slight diligence. In an ER context, this definition was problematic because it was not clear what “slight” care was for a physician.
In this case, the plaintiff had submitted an expert affidavit in which a doctor had attested that the ER doctor and the hospital had not met accepted standards of care. The appellate court noted that the ER doctor had known of facts that called into question the CT scan’s reliability, such as the plaintiff’s inability to lie down for the scan. The appellate court reversed the lower court’s grant of summary judgment.
If you are seriously injured by a doctor’s negligence, you may have grounds for a lawsuit. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
