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The Challenge of Proving Medical Malpractice by Doctors in Georgia Emergency Rooms

March 14, 2015

While all medical professionals from primary care doctors to brain surgeons can be found liable for medical negligence, the challenge of proving a medical malpractice can vary substantially based on the situation.  The evidentiary standard for proving medical negligence by doctors in an emergency room can be especially challenging.  A slight departure from the standard of care by doctors with similar training in the geographic area might be sufficient to justify liability against a doctor in another setting.  However, Georgia law requires a plaintiff to establish “gross negligence” if the alleged malpractice occurred when the patient was treated in an emergency room.

OCGA § provides: “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.” (Emphasis added).

While this standard is more difficult to satisfy than medical negligence in non-emergency care situations, the Georgia Supreme Court has recognized cases where a jury might find a physician has exhibited this more egregious form of negligence.  In the 2013 case of Johnson v. Omondi, 751 SE 2d 288 – Ga: Supreme Court 2013, the court reversed summary judgment for a doctor who failed to order the proper diagnostic tests to rule out a pulmonary embolism.

Thelma Johnson brought her 15-year-old son Shaquille to the emergency department of a hospital.  Shaquille had undergone arthroscopic knee surgery a week prior to the visit.  When he visited the ER, the boy informed the nurse he had chest pain.  Dr. Ormondi ordered the administration of pain medication, an EKG and a chest X-ray.  He also inquired into the teen’s medical and family history before conducting a physical examination.  Dr. Ormondi diagnosed the boy with pleurisy and indicated he should come back if the symptoms persisted.  Two weeks after this exam, Shaquille returned to the ER, but he died of a bilateral pulmonary embolism.

Dr. Ormondi moved for summary judgment based on OCGA § 51-1-29.5(c) after he was sued for medical malpractice.  The trial judge granted summary judgment and the appellate court upheld the trial court’s ruling.

The Georgia Supreme Court began its analysis by noting the higher standard for proving medical malpractice cases brought against doctors providing medical treatment in an emergency room.  The court pointed out that any evidence of a deviation from the applicable standard of care would be sufficient to defeat summary judgment in an ordinary medical practice case. However, Dr. Ormondi could not be liable unless gross negligence was established by clear and convincing evidence. 

Although the statute did not define “gross negligence”, the court indicated that the term carried the general meaning set forth in OCGA § 51-1-4 which defines the term as the absence of even slight diligence.  Slight diligence is defined in the same provision as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.”  The court indicated that this definition essentially refers to a “failure to exercise even a slight degree of care.”

While this standard might seem virtually impossible to satisfy, the Georgia Supreme Court reversed the lower court decision ruling that a reasonable jury could find Dr. Ormondi grossly negligent based on a clear and convincing standard.  The Court observed that Dr. Ormondi recognized pulmonary embolism as part of his differential diagnosis.  He ruled out this possibility because of the age of the patient, normal vital signs and the patient’s lack of shortness of breath.  He also indicated that his diagnosis of pleurisy was confirmed because pain medication relieved the symptoms.  Dr. Ormondi claimed that the pain medication would not have relieved symptoms of a pulmonary embolism.

The evidence presented by the boy’s mother included expert testimony that Dr. Ormondi’s conduct was a departure from the appropriate standard of care and that the physician failed to take appropriate steps to rule out a pulmonary embolism.  The expert testimony characterized the symptoms as “classical” indications of a pulmonary embolism.  The expert also contended that the diagnostic methods used to rule out this medical condition “did nothing to prove or disprove the presence” of pulmonary embolism.  The expert also characterized the use of the pain medication to diagnose the patient as “totally irrelevant” and “ridiculous.”  The appropriate method to rule out a pulmonary embolism would have been to order a CT scan or lung scan according to the expert.

Put Our Law Firm's Over 39 Years of Legal Experience to Work For Your Claim!

While the standard for proving medical malpractice in a Georgia emergency room is tough to satisfy, the Georgia Supreme Court found that the evidence in this case was sufficient to withstand summary judgment.   If you have been injured by medical negligence in an emergency room, it is essential to seek prompt legal advice because these cases are typically extremely complex.  Our Georgia medical malpractice attorneys at Montlick and Associates have been representing those who suffer serious injuries throughout Georgia for over thirty years.  No matter where you are located our attorneys are just a phone call away, and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333).  You can also visit us online at and use our Free Case Evaluation Form or 24-hour Live Online Chat. 


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All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.

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