Motions: Barnett PSJ A — Daniel E. Holloway, Attorney

This is a medical malpractice case. The main acts of negligence occurred in an emergency room. Normally, medical malpractice cases involve a “regular” standard for negligence: Any deviation below the standard of care — large or small — makes the defendant liable for any harm caused by the deviation. But Georgia law creates a special “gross negligence” standard for a narrow subset of emergency department care. The law creates multiple requirements that must be met, in order for the jury to apply the gross-negligence standard, rather than the regular standard.

The Defense obviously wants the jury to apply the gross-negligence standard, because that standard makes the case harder for a plaintiff, easier for a defendant. As the proponent of the gross-negligence standard, the Defense bears the burden of presenting evidence that the requirements are met, for applying that standard.

The undisputed evidence, however, is that in this case the requirements are not met. So Plaintiff asks the Court to grant partial summary judgment, finding that requirements for applying the gross-negligence standard are not met, and ordering that the jury must apply the “regular” negligence standard.

———

Georgia law — at OCGA 51-1-29.5 — creates multiple requirements that must be met in order to give the defendant the benefit of the special “gross negligence” standard. The two main requirements before applying the gross-negligence standard are: (i) a location requirement, and (ii) a severity requirement. The location requirement is straightforward: As relevant here, the statute requires that the medical care at issue was provided in an emergency room. Plaintiff agrees that the location requirement is met in this case.

But the statute also imposes a severity requirement, before giving the defendant the benefit of the gross-negligence standard. The severity requirement is not met in this case. As anyone who has been to an emergency department knows, the vast majority of “emergency” patients do not have highly time-sensitive emergencies. ED waiting rooms are filled with people waiting hours to see a physician. Georgia law does not give defendants the benefit of the gross-negligence standard for all those patients. Instead, OCGA 51-1-29.5 limits the gross-negligence standard only to the most extreme emergencies — those in which any delay of medical attention would likely cause serious harm:

OCGA 51-1-29.5(a)(5).

This statutory definition encompasses only the most extreme of emergencies — a gunshot wound to the chest; a femoral artery sliced open and the patient bleeding out; a patient choking and unable to breathe; etc. In situations like that, even a delay of 60 seconds is likely to cause serious harm. Such ultra-extreme emergencies represent only about 1% of all ED patients.

Most ED patients can tolerate a delay of hours. And even patients with serious, time-sensitive emergencies — like a stroke — can usually tolerate a delay of at least a few minutes.

Our Supreme Court recognizes, of course, that to apply the gross-negligence standard, the jury must find that the statutory requirements for applying the standard are met. In this case, the severity requirement is not met. Jennifer Barnett was not in the small class of patients who required immediate medical attention because any delay could be expected to cause serious harm.

Furthermore, the undisputed evidence shows affirmatively that the severity requirement is not met here. With this motion, Plaintiff submits an affidavit by Dr. Martin Lutz, a veteran ED physician. He testifies that Jennifer Barnett could tolerate some delay of medical attention with no likelihood of serious risk for the delay. Jennifer was not in the small category of patients for whom any delay of medical attention, even a delay of a few minutes, was likely to cause serious harm.

The Defense has no contrary evidence. Additionally, in email correspondence, the Defense has indicated they do not intend to present any such evidence (presumably because they cannot find a medical expert willing to give that testimony).

Accordingly, there is no evidence on which the jury could find that the requirements are met, to apply the gross-negligence standard. So the jury cannot apply that standard. Plaintiff asks the Court to enter an order granting partial summary judgment on that issue.

THE LAW

OCGA 51-1-29.5

The statute creates a special liability standard for cases of “Emergency Medical Care.” Sub-section c of the statute reads:

(c) 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.

The statute limits the gross-negligence standard to cases of “emergency medical care.”

The statute defines “emergency medical care” in sub-section a. That definition includes multiple factual requirements, including the severity requirement:

(5) “Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of IMMEDIATE medical attention could reasonably be EXPECTED to result in placing the patient’s health in SERIOUS JEOPARDY, serious IMPAIRMENT to bodily functions, or serious DYSFUNCTION of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

The key words are familiar, but Merriam-Webster defines them as follows:

Immediate: “occurring, acting, or accomplished without loss or interval of time: instant”[1]

Expect: “to consider probable or certain”[2]

Serious: “having important or dangerous possible consequences” (e.g., “a serious injury”)[3]

Jeopardy: “exposure to or imminence of death, loss, or injury: danger.”[4]

The statute thus limits the gross-negligence standard to situations in which even a short delay of medical attention is likely to cause serious danger or harm.

The jury finds the facts

Unsurprisingly, our Supreme Court makes clear that the jury must decide whether the requirements are met, for applying the gross-negligence standard:

The patient’s actual medical or traumatic condition is determinative — but only as that condition is revealed by the patient’s symptoms. The factfinder must consider the evidence regarding the symptoms the patient presented and determine whether those symptoms were acute and sufficiently severe to show that the patient had a medical or traumatic condition that could reasonably be expected to seriously impair her health if not attended to immediately. …

…

As we recently reiterated in a case that involved the “gross negligence” element of OCGA § 51-1-29.5: “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge….”

Nguyen v. Sw. Emergency Physicians, P.C., 298 Ga. 75 (2015).

As the proponent of applying the gross-negligence standard, the Defense bears the burden of showing the requirements for applying it are met.

The Defense is the proponent of the gross-negligence standard. It is the Defense that wants the jury to apply the gross-negligence standard. So it is the Defense’s burden to present evidence showing that the requirements for applying that standard have been met. Cf:

· Wilson v. State, 312 Ga. 174 (2021) (“Because the State was the proponent of this evidence, the State bore the burden of producing evidence on the issue of Wilson’s capacity.”)

· State v. Hamilton, 308 Ga. 116 (2020) (“The unavailability of a witness, therefore, is a statutory prerequisite that a proponent of hearsay evidence has the burden of proving….”)

· Gibson v. State, 300 Ga. 494 (2017) (“But the burden was on the proponent of the evidence to establish that the victim’s prior acts involved violence and were therefore relevant to a claim of justification.”).

As the proponent of the gross-negligence standard, the Defense bears the burden of presenting evidence that the requirements for applying the standard are met.

The medical consequence of a delay in medical attention is an expert issue, requiring testimony by medical experts.

“What danger would likely be caused by a delay in medical attention?” That is a question of medical causation. It requires knowing how severe a medical condition is, what harms the condition can cause, how fast those harms are likely to occur, whether the harms are reversible, whether medical attention would likely prevent those harms from occurring in the first place, and (if so) the time-scale on which medical attention would prevent the harm (so that even a short delay of attention would likely cause serious danger). Answering these questions requires medical expertise.

Our Supreme Court has long held that questions of medical causation are beyond the ken of a lay jury. The proponent of causation — the party with the burden of proof — must present expert testimony to support causation. Without expert testimony on the issue, the proponent cannot meet its burden, and summary judgment is appropriate. E.g., Cowart v. Widener, 287 Ga. 622 (2010):

[I]n Gilbert, we expressly noted that the plaintiff’s cause of action was for simple negligence and not medical malpractice, but we nonetheless held that medical questions are raised, requiring expert evidence. In short, even in simple negligence cases, plaintiffs must come forward with expert evidence to survive a defense motion for summary judgment, where “medical questions” relating to causation are involved.

See also, e.g., Ellis v. Hartford Run, 335 Ga. App. 118, 122 (2015) (same); Wong v. Chappell, 333 Ga. App. 422, 425 (2015) (same); Nixon v. Pierce County, 322 Ga. App. 745, 748 (2013) (same); Ladner v. Northside Hospital, 314 Ga. App. 136, 138 n.5 (2012).

On questions of medical causation, the proponent of causation cannot rely on the jury’s common sense. The proponent of causation cannot rely on lawyer rhetoric, no matter how emphatic, impassioned, or theatrically scornful of the opposing side. Expert testimony is the sine qua non for medical causation.

Here, as the proponent of the gross-negligence standard, the Defense bears the burden of presenting expert testimony that the requirements for applying the standard are met.

Partial summary judgment is appropriate on an issue, where there is no genuine dispute as to that issue.

A party is entitled to summary judgment on an issue, if there is no genuine dispute about it. See OCGA 9-11-56(d). It is rare for a plaintiff to be granted summary judgment on an entire claim — because the plaintiff carries the burden of proof. But on the issue here, the Defense, not Plaintiff, bears the burden of proof.

THE FACTS

The evidence is undisputed that the care given to the Jennifer Barnett did not meet the statutory definition of “Emergency Medical Care.” Plaintiff presents expert testimony that the requirements of that definition are not met here. The Defense presents no expert testimony on the issue. So partial summary judgment is appropriate.

Plaintiff’s Evidence

Plaintiff presents an affidavit by Dr. Martin Lutz, a veteran ED physician. (Exhibit 1.) Dr. Lutz testifies that Jennifer could tolerate a modest delay of medical attention, without being likely to suffer any serious danger or harm because of the delay. That is, the care provided to Jennifer did not meet the statutory definition of “Emergency Medical Care” in OCGA 51-1-29.5. Dr. Lutz testifies that:

1. Plaintiff’s counsel has asked me to address an issue I have not yet addressed in this case: Whether the care provided to Jennifer Barnett meets the following definition of “Emergency Medical Care”:

“Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

2. In short, the answer is No.

3. To be sure, Jennifer Barnett was having a brainstem stroke when she arrived at the hospital, and Jennifer therefore was suffering a time-sensitive emergency. Medical providers must respond to a stroke as fast as they can — immediately, if possible. Even so, the care provided to Jennifer Barnett does not meet the definition of “Emergency Medical Care” stated above.

4. The reason is that Jennifer did not have “a medical or traumatic condition MANIFESTINGitself by acute symptoms of sufficient severity, including severe pain, such that the absence of IMMEDIATE medical attention could reasonably be EXPECTED to result in placing the patient’s health in SERIOUS JEOPARDY, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”

. . .

33. Emergency departments get patients with widely varying degrees of “emergencies.” At the low end, we get patients who use the ED essentially as a substitute for primary care. At the high end, we get patients with ultra-extreme emergencies. The vast majority of patients are somewhere in between.

34. Most ED patients do not need, and do not receive, immediate medical attention.

35. However, a small percentage of ED patients are likely to suffer serious harm if immediate medical attention is delayed by even a few minutes. For example: a patient with a gunshot wound to the chest, a patient who has completely lost her airway and cannot breathe, a patient with a severed femoral artery, a patient whose heart has stopped pumping, and so on. For these patients, a delay of even one minute is likely to cause serious harm. Indeed, if a patient goes into cardiac arrest, in most contexts it would be extreme negligence, if not willful misconduct, for a nurse or physician to intentionally wait 60 seconds before calling for help and taking action.

36. Such ultra-extreme emergencies occur with only a small percentage of ED patients.

37. This sort of ultra-extreme emergency roughly corresponds to a level 1 patient on the 5-level Emergency Severity Index (“ESI”) supported by the US Agency for Healthcare Research and Quality.

38. The ESI Handbook states that ESI 1 patients account for only about 1-3% of all ED patients.

. . .

44. When Jennifer Barnett arrived at AMC South hospital, she was not suffering the sort of ultra-extreme emergency for which even a short delay was likely to cause serious harm.

45. Jennifer was suffering an ischemic stroke. An ischemic stroke is a potentially catastrophic, time-sensitive emergency. But it is not in the category of ultra-extreme emergencies such that even a short delay is likely to cause serious harm.

46. An ischemic stroke causes harm over a course of hours, by restricting or blocking blood flow to part of the brain. Serious harm does not occur immediately. To illustrate, in “transient ischemic attacks,” blood flow is restored spontaneously after a substantial amount of time, with no discernible harm to the patient.

47. The treatment window for stroke is generally at least 4-1/2 hours (for medical thrombolysis).

48. Aspirationally, emergency departments should set a goal of responding to any potential stroke as fast as possible — immediately, if possible. But that does not mean even a short delay of medical attention is likely to cause serious harm.

49. As a medical, factual matter, the care Dr. Hamilton provided to Jennifer Barnett does not meet the definition of “Emergency Medical Care” stated above.

50. Jennifer Barnett did not have “a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”

51. This is partly why I have concluded that it was not gross negligence for Dr. Hamilton to move slowly in diagnosing Jennifer — because Jennifer did not exhibit such an ultra-extreme emergency.

52. If Jennifer had exhibited such an ultra-extreme emergency, comparable to cardiac arrest, then it would have been flagrantly, outrageously negligent — even raising a question of willful misconduct — for Dr. Hamilton to allow hour after hour to go by, without obtaining a plausible diagnosis and facilitating treatment. In fact, however, I draw no such conclusion, because Jennifer did not exhibit an ultra-extreme emergency.

Defense’s Lack of Evidence

The Defense has no evidence — zero — that Jennifer Barnett manifested a condition such that any delay in medical attention was likely to cause serious harm. In the several years this case has been pending, the Defense has never disclosed any expert opinion on that issue. In a letter dated Feb 3, 2017, the Defense disclosed their current experts. They gave the same disclosure for their two ED physician experts. The disclosure included nothing about the requirements for applying the gross-negligence standard.

(Exhibit 2.) Nor did the experts give any testimony about the issue in their depositions.

Over a month before filing this motion, Plaintiff’s counsel asked Defense counsel if they intended to obtain and present any expert testimony about whether the requirements were met, for applying the gross-negligence standard. Defense counsel would not give a straight answer, so the exchange dragged on. At the end of the exchange, however, it appears clear that the Defense does not have any expert testimony on the issue and does not anticipate getting any. (Exhibit 3.)

So the undisputed evidence is that the requirements for applying the gross-negligence standard are not met in this case. Accordingly, Plaintiff asks the Court to enter partial summary judgment on that issue.

THE DEFENSE ARGUMENT

As the Court can see in Exhibit 3, instead of evidence, the Defense offers argument. The argument fails. The Defense says that before the case was transferred to this Court from Bibb County, the prior judge ruled that the gross-negligence standard would apply as a matter of law; and the Defense says that ruling is the law of the case and therefore binding on this Court. The Defense argument fails for two reasons: First, the Bibb County judge made no such ruling. Second, Georgia long ago abolished the doctrine of “law of the case,” so even if the Bibb County judge had made such a ruling, it would not have been binding on this Court. And it would have been reversible error.

The Prior Ruling

In Bibb County, Plaintiff filed a pretrial motion requesting specific jury instructions on the application of OCGA 51-1-29.5 and its gross-negligence standard. On December 27, 2022, the Bibb County Court entered the following order on that motion:

(Exhibit 4.)

The Defense then filed a motion to reconsider that ruling. In response, on January 1, 2023, the Bibb County Court sent the parties an email saying,

“I am applying OCGA 51-1-29.5 as a matter of law. I will just cite the statutes rather than plaintiff’s language.”

(Exhibit 5.)

Even if an informal email had the effect of a formal order (which it does not), the Bibb County Court did not rule that the jury would be required to apply the gross-negligence standard. That Court merely ruled that the jury would be instructed on the language of the statute. That statutory language would then require the jury to make a factual finding as to whether the requirements were met, for applying the gross-negligence standard. If the jury found the requirements were not met, then the instruction would be not to apply the gross-negligence standard.

The Bibb County Court’s order was that the court would instruct the jury using the language of the statute. If the Bibb County Court had — as the Defense supposes — ruled that the jury would be required to apply the gross-negligence standard, that would have been reversible error guaranteeing another trial, in the event of a defense verdict. The Defense presented no evidence that all requirements for the gross-negligence standard were met. And the Bibb County Court certainly made no factual findings that all requirements were met. If the Bibb County Court had made the ruling the Defense postulates, it would have been an utterly unsupported partial summary judgment. But the Bibb County Court made no such ruling.[5]

Law of the Case

Georgia abolished the law-of-the-case doctrine over 50 years ago. See OCGA 9-11-60 (“The law of the case rule is abolished.”). Rulings by the Court of Appeals or the Supreme Court bind the trial court in the same case. But trial court rulings are not binding on the trial court. The trial judge is free to reconsider its own rulings or those of another trial judge. Id.

Even if the Bibb County Court had entered the non-existent order the Defense posits, such an order would be reversible error that this Court could and should reconsider. But again, all the Bibb County Court ordered was that the jury would be instructed on OCGA 51-1-29.5 using the statute’s language.

No prior proceedings in this case relieve the Defense of the burden of presenting evidence to support the gross-negligence standard.

CONCLUSION

The Defense is the proponent of the gross-negligence standard. The Defense has the burden of presenting evidence that the requirements are met, for applying that standard. The requirements include a question of medical causation — the likely consequences of any delay of medical attention. Evidence on that issue of medical causation must come in the form expert testimony. The Defense has no such evidence.

Plaintiff therefore asks the Court to enter partial summary judgment on this issue. We ask the Court (a) to find that no evidence has been offered to show that all requirements are met, for application of the gross-negligence standard, (b) to conclude that the gross-negligence standard therefore cannot apply in this case, and (c) to order that the jury will not be instructed on the gross-negligence standard.

February 20, 2023

Respectfully submitted,

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

(404) 249-6764 (fax)

bell@BellLawFirm.com

Attorneys for Plaintiffs

State Court of Cobb County

State of Georgia

Jennifer Barnett,

Plaintiff,

— versus —

Richisa Johnson, MD. and George Brown III, R.N,

Defendants.

Civil Action

File No. 23-A-526-6

Hon. Diana Simmons

Certificate of Service

The undersigned has served the foregoing document on all counsel of record, by filing the document with the Court’s efiling system.

February 20, 2023

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

[1] https://www.merriam-webster.com/dictionary/immediate.

[2] https://www.merriam-webster.com/dictionary/expect.

[3] https://www.merriam-webster.com/dictionary/serious.

[4] https://www.merriam-webster.com/dictionary/jeopardy.

[5] Had the case gone to trial in Bibb County, at the end of the Defense case, Plaintiff planned to move for a directed verdict on the issue of the gross-negligence standard.

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