Under current Georgia law, emergency room (ER) physicians cannot be held liable for committing medical malpractice unless they act with gross negligence. As the result of "tort reform" laws passed in 2005, people injured by errors in the ER are practically shut out of the courthouse; the laws are so favorable to ER doctors that it is nearly impossible for injured victims to successfully pursue legal claims.
This past fall, the Georgia Supreme Court agreed to review the constitutionality of this law.
Gliemmo v. Cousineau
In Gliemmo v. Cousineau, 57-year-old Carol Gliemmo went in 2007 to the St. Francis Hospital emergency room in Columbus, Georgia, complaining of severe headaches. According to Gliemmo, the emergency-room physician, Dr. Cousineau, told Gliemmo that her headaches were caused by stress, gave her a prescription for valium and sent her home, even though she was still screaming in pain.
Dr. Cousineau, however, offered a different version of events. According to Dr. Cousineau, he ordered an EKG and blood tests for Gliemmo and then diagnosed her with hypertensive urgency and increased blood pressure. The ER physician then said he treated the patient for high blood pressure and gave her a valium prescription for her stress. He remembered that the nurse told him three times that the patient was feeling better before he discharged her and that the patient personally thanked him prior to leaving the ER.
Two days after Gliemmo left the ER, she went to see her family physician who ordered a CT scan. The CT scan revealed that Gliemmo had suffered a brain hemorrhage, which resulted in paralysis and neurological impairment. Gliemmo then filed a medical malpractice suit against Dr. Cousineau and the St. Francis Emergency Department for failing to order the CT scan.
In his defense, Dr. Cousineau asserted that the plaintiff had failed to produce clear and convincing evidence that he had committed gross negligence, as required by OCGA §51-1-29.5, the ER provision of the 2005 tort reform laws.
Arguments Before the Georgia Supreme Court
The main question before the Georgia Supreme Court in Gliemmo is whether the ER provision is a special law that violates the uniformity clause of the Georgia state constitution. Under the uniformity clause, no special or local law can be passed as a general law by the state legislature.
Gliemmo's attorney argued that the ER provision is a special law because it only applies to a small subset of physicians and hospitals, rather than applying generally across the board to all physicians. He also asserted that the provision effectively eliminates the ability of medical malpractice victims to bring suits against ER physicians and ER departments; gross negligence is so difficult for the plaintiff to prove by clear and convincing evidence it gives ER physicians and hospitals an "unconscionable and inequitable advantage."
Dr. Cousineau's attorney argued that the law was not a special law but an exception to a general law because it applied uniformly across the state to every patient entering an emergency room for emergency care. In oral arguments, the doctor's attorney focused largely on public policy reasons for upholding the law, including the need to keep medical malpractice insurance premiums low in order to attract new emergency room physicians to Georgia hospitals.
Conclusion
The Georgia Supreme Court is expected to release its decision on the constitutionality of the ER provision in the coming weeks. Their decision, however, many not be the final say on Georgia's tort reform laws. Key state legislators, including House Majority Leader Jerry Keen (R-St. Simons Island) are promising to rewrite the laws should they be found unconstitutional by the state's high court.
