Georgia Supreme Court sends Dougherty malpractice case to jury

ALBANY — In an opinion released Monday, the Georgia Supreme Court unanimously ruled in favor of some Dougherty County medical providers who were sued by the parents of a baby who suffered permanent brain damage after she was treated and released from the Phoebe Putney Memorial Hospital emergency center.

The opinion for Nguyen et al. v. Southwestern Emergency Physicians, P.C., et al., written by Justice David Nahmias, upholds a ruling by the Georgia Court of Appeals and determined the issue must proceed to trial and be decided by a jury. At issue is whether the hospital medical staff provided the baby with “emergency medical care,” which under Georgia law gives medical providers a greater degree of protection from liability.

Paul Phillips, an attorney representing the family, said the plaintiffs are arguing that the law should be applied as it is in any other case — and that the question as to whether the law applies should be determined by a court before it gets to a jury.

“Nobody has won or lost anything,” Phillips said. “We are trying to make clear what applies and what doesn’t.”

The facts of the case, according to State Supreme Court documents, show that, on July 7, 2007, 6-month old Keira Pech fell off a bed and hit her head on a suitcase. A large, reddish purple swollen area on the right side of the baby’s head that the mother, Thu Carey Nguyen, said was the size of an “apple” or “another head” appeared. She took the infant to Phoebe, where at 5:50 p.m., she was seen by a triage paramedic.

After the paramedic noted a hematoma on the baby’s head she was seen and examined by Michael Heyer, a physician’s assistant employed by Southwestern Emergency Physicians, P.C. Heyer diagnosed a “moderate” sized scalp contusion, recorded her condition as stable and concluded it was not necessary to call in the attending emergency room doctor or order radiology studies.

Three days later, Keira was brought back to the hospital by ambulance after she stopped breathing. A scan revealed a subdural hematoma putting substantial pressure on her brain. She was taken to surgery where her skull was opened to remove the blood and relieve the pressure, the opinion said.

She was transferred to the pediatric intensive care unit at the Medical Center of Central Georgia where a neurosurgeon concluded the subdural hematoma had been developing for days or weeks. The baby suffered permanent brain damage, and at 8 years old, is reportedly unable to walk or talk.

“We feel strongly (the medical providers) should have done more … if they had done that, they could have caught the subdural hematoma and treated it before there were tragic consequences,” Phillips said.

The family filed a motion for summary judgment on the grounds that she did not receive “emergency medical care” as defined in the statute, and therefore the medical providers can be held liable for ordinary negligence in the case. The medical providers argued they did provide emergency medical care through examining, triaging, and diagnosing the baby and therefore they are liable only if there is clear and convincing evidence they were grossly negligent.

Key to this case, the opinion said, is the emergency medical care statute which states that in a lawsuit involving the provision of emergency medical care, “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.”

Gross negligence is commonly defined as the failure to exercise even the slightest amount of care, as opposed to ordinary negligence, which is the less serious failure to use ordinary care. This provision of the statute provides a measure of greater protection from lawsuits for those medical personnel who provide emergency medical care in a hospital setting, the opinion said.

The trial court ruled in the parents’ favor, agreeing the baby received no emergency medical care and granting their motion for partial summary judgment. On appeal, the Court of Appeals reversed the trial court’s ruling, finding the state Supreme Court had previously ruled that emergency room personnel provide “bona fide emergency services” to a patient when they examine and diagnose a patient.

A message to C. Richard Langley, one of the attorneys for Southwestern, was not returned Monday. Phoebe officials declined to comment on the ruling.