Last week, the Georgia Court of Appeals issued an en banc opinion in Wilson v. Inthachak that further elaborated on the types of medical providers covered by O.C.G.A § 51-1-29.5 (c), Georgia's ER Statute.  The Court held that the ER Statute, which protects emergency care providers by requiring Plaintiffs to prove "gross negligence" by "clear and convincing evidence," applied to medical providers physically providing emergency medical care remotely (i.e., providing care from a different physical location), so long as the emergency care was rendered to a patient who was present in the emergency department or one of the other physical locations covered by the Statute. Wilson v. Inthachak, A23A0398, 24 WL 3322882 (Ga. Ct. App. July 8, 2024).

Wilson v. Inthachak involved the care and treatment of Dorothy Warren, a nursing home resident, who presented to the emergency department via nonemergency transportation after experiencing a fall where she struck her head. Upon presenting to the emergency department, her vital signs were normal, and she was given a “routine” priority level. Id at 1. During Ms. Warren’s examination, a routine CT scan was ordered and Dr. Inthachak, the Defendant in the case, read the scan and provided his opinion remotely. Following this consultation, the family opted for comfort measures only. This resulted in Ms. Warren passing several days later. It was later alleged that Dr. Inthachak misdiagnosed the scan.

Plaintiff, Ms. Warren’s child and administrator, filed suited against Dr. Inthachak alleging that he breached the standard of care by misdiagnosing Ms. Warren. Dr. Inthachak moved for summary judgment, arguing that a gross negligence standard of care applied under the ER Statute and his recommendation regarding treatment would have been the same despite the misdiagnosis. Plaintiff responded arguing that the ER Statute did not apply because, in part, Dr. Inthachak was not physically present in the hospital's ER Department. Following a hearing, the trial court granted Defendant’s summary judgment; Plaintiff appealed.

By way of background, the ER Statute, O.C.G.A § 51-1-29.5 (c), provides a heightened gross negligence standard to physicians where there is a: (1) health care liability claim, (2) arising out of emergency medical care, (3) in a hospital emergency department, obstetrical unit or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.  In other words, the statute is "location dependant.  However, the ER Statute does not explicitly say whether it is dependent on the location of the physician, the patient, or both.

In Wison, a majority of the Court held that it was the location of the patient not the physician that controlled (note that five of the 15 judges dissented on this specific point of the case; more on this in a moment).  In other words, a physician located outside of the emergency department providing emergency care remotely to a patient inside the emergency department is still entitled to protection under the ER Statute. Given this, the Court affirmed the trial court on this issue.  Dr. Inthachak was providing care "in" a hospital emergency department, despite not being physically in the hospital, because that is where his patient was located.

It is worth noting that the Court of Appeals' decision on the location element of the ER Statute was not the end of the analysis.  The Plaintiff also contested the trial court's finding that Dr. Inthachak was poviding "bona fide" emergency medical care at the time of the alleged negligence, which is a question that turns on whether the patient was truly experiencing a sudden, acute, and serious medical problem.  On that question, the Court held that a genuine issue of material fact still existed.  The Court ruled that it was the role of the factfinder to determine whether the symptoms the patient presented with were acute and sufficiently severe to show that a patient had a medical or traumatic condition that could reasonably be expected to seriously impair her health if not attended to immediately. 

Also, as noted above, five judges disagreed with the majority on the "physical location" question.  These judges agreed with the Court's decision overall, finding that a question of fact existed as to the "bona fide" emergency medical care question, thereby requiring a reversal of the trial court's ruling.  But, these judges interpreted the ER Statute as being applicable only to those doctors who physically provide care inside one of the locations listed in the statute.  Under the Court of Appeals' Rule 33.2(a)(1), the majority's opinion still counts as binding precedent, even despite this dissent from several of the justices.  But, this is an issue that could receive attention from the Georgia Supreme Court.

A copy of the opinion can be found HERE.

By: Breonna Glover