Dailey v. Abdul-Samed
319 Ga. App. 380
Ga. Ct. App.2012Background
- Dailey and wife sued Dr. Abdul-Samed, PA-C Epps, and ACS Primary Care for medical malpractice over alleged delay in transferring Mr. Dailey to a hand surgeon and resulting partial finger amputation.
- Defendants moved for summary judgment arguing OCGA § 51-1-29.5 (c) applies because Mr. Dailey presented to the emergency room and the evidence lacked clear and convincing proof of gross negligence.
- The trial court granted summary judgment; Daileys appealed contending § 51-1-29.5 is vague and that fact questions remain as to liability, fiduciary duties, and bad faith.
- Mr. Dailey presented to Spalding Regional Hospital ER around midnight; a nurse referred to poison control and to a hand surgeon.
- Dr. Abdul-Samed approved an immediate hand-surgeon referral and attempted transfer to Piedmont Hospital; multiple hospitals were contacted and timing of transfers was disputed.
- Medical Center of Central Georgia and Piedmont Hospital timelines conflicted; delays in contacting an available hand surgeon and in coordinating transfer allegedly worsened Mr. Dailey’s prognosis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 51-1-29.5 (c) applies | Dailey argues requests involve emergency care; statute applies with heightened standard. | Defendants contend immunity under § 51-1-29.5 (c) applies when emergency care is involved and care was provided. | Genuine fact questions exist about whether emergency medical care was provided; summary judgment improper. |
| Whether the evidence raises material fact questions about emergency medical care and gross negligence | Delay in transfer worsened prognosis; evidence supports gross negligence under § 51-1-29.5 (c). | Even if emergency care occurred, no clear and convincing proof of gross negligence exists. | There are factual disputes about actions during the ER stay and transfer efforts; cannot grant summary judgment. |
Key Cases Cited
- Crewey v. American Medical Response of Ga., 303 Ga. App. 258 (2010) (emergency-care immunity analysis under related statute for response timing)
- Gliemmo v. Cousineau, 287 Ga. 7 (2010) (upholds constitutionality of emergency-care statute)
- Focus Entertainment Int'l v. Bailey, 256 Ga. App. 283 (2002) (preservation and appeal of constitutional challenges in summary judgment context)
- Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70 (1995) (definition framework for health care liability terms)
- Johnson v. Omondi, 318 Ga. App. 787 (2012) (gross negligence standard defined)
- Beasley v. Northside Hosp., 289 Ga. App. 685 (2008) (summary judgment standards and deference to nonmovant evidence)