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Mark Bello
Mark Bello
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Georgia ER Gross Negligence Requirement Bars Recovery To Paralyzed Medical Malpractice Victim

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Tort reform strikes again! The Georgia Supreme Court has upheld a recent change in the law that requires a patient to prove that an emergency room physician is "grossly negligent" in order to maintain a successful medical malpractice action against that physician. Gross negligence is a much higher standard than the ordinary negligence standard that is required in all other types of personal injury and medical malpractice litigation.

In a 4-3 decision, the high court affirmed a lower court ruling that the woman, who suffered a brain hemorrhage and subsequent paralysis, failed to meet the higher standard of proof; as a result, her lawsuit was dismissed. The woman showed up at a Georgia Hospital emergency room indicating that she felt a "snapping in her head". She was diagnosed with "greatly increased blood pressure". An ER doctor prescribed Valium and released her. A CT scan ordered two days later, by her family physician, revealed the brain hemorrhage and subsequent paralysis.

The ER doctor should have, at the very least, ordered an EEG or CT Scan during the ER visit, right? This is a case worthy of signficant compensation, right? Wrong! The ER doctor and the hospital moved to dismiss the woman’s lawsuit because of the 2005 "special exception". Plaintiff’s lawyers argued that the exception was unconstitutional because it carved out a special exception for emergency medical care providers, whereas an ordinary negligence standard applied to all other fields of health care. The high court, incredibly, disagreed stating that the ER exception is not "special" because:

“it operates uniformly upon all health care liability claims arising from emergency medical care.”

The dissent argued for common sense. Justice Robert Benham opined that the provision was "special" because it applies to a limited class of health care providers who enjoy a "lower standard of care" and a higher burden of proof". This, for all practical purposes, makes ER doctors immune from suit.

The 2005 legislation didn’t stop there; it also provided a damages cap in all medical malpractice cases. The justification for this nonsense? "Skyrocketing" liability awards were driving up medical malpractice insurance premiums. So…let’s re-train the doctors, right? Let’s take the licenses away from the repeat offenders, OK? Let’s make sure medical and hospital protocol is strictly followed, yes? NOOOOOOOOOO! Why? Because the medical community doesn’t want to! With the help of the powerful insurance lobby and their own medical industry lobby, they can pass laws that simply punish the already victimized patient, by denying them fundamental fairness in the courtroom! Now, they can all go on committing medical error after medical error without concern of liability. How nice for doctors and insurance companies! How tragic for a paralyzed victim….

Lawsuit Financial, the pro-justice lawsuit funding company asks: How does this solution improve safety? How does it decrease incidents of medical mistake? How does it weed out bad doctors who make repeated medical errors that cause serious injury and death to real patients? These are real people, folks, not statistics. A correct diagnosis in this case, perhaps, prevents paralysis for this unfortunate woman. Tort reform has, once again, made all of us less safe, and that is the bottom line. The citizens of Georgia should be outraged. Instead of an appropriate verdict, this woman is not only paralyzed, but the doctor, hospital and insurance company that accepted the risk of her treatment and responsibiliy for its outcome, walk away from that responsibility and leave it to the taxpayers. Again, we ask: Is that justice?