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Gross Negligence for Georgia ER Negligence Cases

In Georgia, by statute, a plaintiff must prove gross negligence, rather than just ordinary negligence, in order to prevail in a medical malpractice case alleging negligence in a hospital Emergency Room. Gross negligence is a higher standard than ordinary medical negligence, making it more difficult for a plaintiff to establish and, therefore, prevail in their case.

In Pennsylvania, medical negligence is established where a medical professional has deviated from or breached the applicable medical standard of care. The standard of care that applies to a particular medical decision or procedure must be established by experts who practice in the applicable medical specialty. For example, if the claim is that a radiologist delayed the diagnosis and treatment of a patient’s cancer by failing to properly interpret a finding on a CT scan, the plaintiff must present testimony from an expert radiologist as to what the standard of care required of the defendant radiologist under the circumstances. If the defendant radiologist failed to meet, or deviated from, that standard of care, he would have committed medical malpractice and will be liable to the plaintiff if it is proven that his medical negligence caused, or increased the risk of, harm to the plaintiff.

Gross negligence, on the other hand, requires something more; the plaintiff must prove that the defendant grossly deviated from the applicable standard of care. Again, this is a much higher burden for the plaintiff.

The George ER law states that the gross negligence standard applies to “emergency medical care in a hospital emergency department.” Therefore, the fact that the care occurred in the ER alone, does not trigger the use of the higher standard – the care must also be of an emergent nature. In other words, non emergency care that happens to occur in the ER, would not be subject to the gross negligence standard. If you presented to a Georgia ER with common-cold like symptoms that did not require emergency treatment, any care you received in that ER would not be subject to the gross negligence standard.

Recently, the Georgia Supreme Court unanimously decided that, when determining whether “emergency medical care” was involved, and therefore the ER gross negligence standard applies, an objective test must be applied. This means, simply, that it does not matter what the medical providers involved were thinking or intending at the time the treatment was rendered; their subjective belief about the kind of care they were providing is irrelevant. What matters, the Georgia Supreme Court explained, is the patient’s medical symptoms and whether they warranted emergency services.

COPYRIGHT © 2022, STARK & STARKNational Law Review, Volume V, Number 329
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About this Author

Michael C. Ksiazek, Personal Injury Attorney, Stark Law Firm
Shareholder

Michael C. Ksiazek is a Shareholder and member Stark & Stark’s Accident & Personal Injury Group in the Yardley, Pennsylvania office. Mr. Ksiazek concentrates his practice on catastrophic injury and wrongful death claims, including those caused by medical malpractice, nursing home neglect and abuse, premises liability, motor vehicle accidents and construction site accidents.

Prior to joining Stark & Stark, Mr. Ksiazek practiced with law firms in Philadelphia and Boston, including a Philadelphia firm where his practice focused on the defense of medical negligence and...

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