Emergency Room Malpractice Law Challenged in GA Supreme Court

Carol Gilemmo screamed in pain as doctors discharged her from the emergency room. Earlier that evening she had rushed to the emergency room at St. Francis Hospital in Columbus, Georgia after feeling a sudden snap inside her head and an unusual throbbing behind her eye. According to Gilemmo, when Dr. Mark Cousineau saw her, he blamed her headache on stress, prescribed valium, and sent her home. Gilemmo ultimately suffered from a stroke with paralysis as the result of Cousineau’s medical malpractice.

That’s the story as Gilemmo, 56, told it to the Georgia Supreme Court earlier this month. Lawyers for Dr. Cousineau and St. Francis Hospital contend that Cousineau merely prescribed medication for the client’s blood pressure and Valium for stress. They also contended that nurses reported back that Gilemmo was feeling better and that she even thanked the doctor before she left the hospital.

Gilemmo’s story and Cousineau’s argument are just one small part of a larger legal issue – Georgia’s 2005 tort reform law. Lawyers for both sides were arguing about one portion of this law which requires a plaintiff to establish that an ER doctor committed “gross negligence” in order to prove that medical malpractice occurred. The stakes were high because “gross negligence” – carelessness in reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people's rights to safety – is almost impossible to prove in a court of law.

Medical malpractice plaintiffs like Gilemmo want the state to loosen the tort reform law that currently puts so much burden of proof on the plaintiff. But the state of Georgia has a vested interest in keeping the law in place. This is in part to attract talented emergency room physicians, who often have to make critical patient care decisions in a tense environment, many times without any knowledge of the medical histories of their patients. With this law in place, emergency room doctors feel more comfortable relocating to Georgia and practicing their profession.

The plaintiff’s lawyer, Michael Terry, contended that lawmakers included this portion of the law simply to assuage certain medical corporations and insurance companies with strong lobbying presence in the state capitol.

“It’s the practical elimination of any [medical malpractice] claims,” Terry told the justices. The provision gives hospitals and ER physicians “an unconscionable and inequitable advantage.”

This is not the first time Georgia’s tort reform law has been challenged. Last month, the Georgia Supreme Court heard the case of 75-year-old former real estate agent Betty Nestlehutt, who’s face was left permanently disfigured after undergoing plastic surgery by Atlanta physician Harvey (Chip) Cole. Terry also served as Nestlehutt’s lawyer, and in that case, he stated that caps on jury awards in medical malpractice case are saying, “We can’t afford full justice. We can’t afford full compensation for our most injured victims. We know that’s not right.”