Johnson v. Omondi
318 Ga. App. 787
| Ga. Ct. App. | 2012Background
- The Johnsons sued Omondi for medical malpractice after Shaquille Johnson died from a pulmonary embolism two weeks after an emergency department visit.
- Shaquille presented with chest pain after recent knee surgery; Omondi examined him, ordered a chest x-ray and an EKG, and discharged him with a diagnosis of pleurisy.
- Omondi interpreted the tests, considered multiple potential etiologies, and ultimately discharged Shaquille despite concerns raised by the record and expert testimony.
- OCGA § 51-1-29.5(c) creates a higher evidentiary standard (clear and convincing) and a lower standard of care (gross negligence) for emergency department care.
- The trial court granted summary judgment for Omondi; the majority affirmed, while a dissent argued there were genuine issues of material fact requiring a jury.
- Key authorities and the record are discussed to determine whether Omondi’s actions constitute gross negligence under the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 51-1-29.5(c) requires clear and convincing evidence of gross negligence. | Johnsons contend evidence supports gross negligence. | Omondi argues the standard is clear and convincing and met only if gross negligence is shown. | Yes; the statute sets the burden as clear and convincing evidence of gross negligence. |
| Whether there were genuine issues of material fact about Omondi’s care that preclude summary judgment. | Experts show omissions and misdiagnosis. | Record shows Omondi provided slight care and followed reasonable steps. | No genuine issues; record supports summary judgment for Omondi. |
| Whether Pottinger controls or Knight clarifies the proper standard for emergency care immunity. | Pottinger/ Knight require jury review of alleged negligence. | Pottinger supports summary judgment where no slight care was lacking. | Pottinger controls; case is appropriate for summary judgment here. |
Key Cases Cited
- Pottinger v. Smith, 293 Ga.App. 626 (Ga. App. 2008) (interprets gross negligence standard under OCGA § 51-1-29.5 and supports summary judgment when no slight care shown)
- Knight v. Roberts, 316 Ga.App. 599 (Ga. App. 2012) (emergency physician not immune; CT scan considerations and failure to diagnose a dissection can preclude summary judgment)
- Gliemmo v. Cousineau, 287 Ga. 7 (Ga. 2010) (establishes constitutional basis for emergency care standard and jury instruction considerations)