Nisbet v. Davis
327 Ga. App. 559
| Ga. Ct. App. | 2014Background
- Mrs. Davis underwent laparoscopic pelvic surgery on Sept. 10 and was discharged; the surgeon inadvertently perforated her bowel twice (not discovered during surgery).
- On Sept. 11 she presented to Gwinnett Medical Center ER in septic shock: very low BP, labored breathing, vomiting, distended/tender abdomen, and acute renal failure.
- ED physician Dr. Buchanan ordered imaging and labs; he paged Dr. Rachel Nisbet (on-call critical care/pulmonary) who first evaluated Mrs. Davis in the ER at 8:51 p.m.
- Dr. Nisbet diagnosed septic shock due to aspiration pneumonia, declined an abdominal CT (patient unstable), did not obtain a surgical consult, ordered ICU admission, then went home; Mrs. Davis deteriorated overnight and underwent emergency surgery early morning Sept. 12, which revealed bowel perforation and gangrene; she died later that day.
- The surviving spouse sued Dr. Nisbet for wrongful death alleging failure to obtain a timely surgical consult; defendants moved for summary judgment asserting Georgia’s emergency medical care statute (OCGA § 51-1-29.5(c)) applied and required plaintiff to prove gross negligence by clear and convincing evidence.
- Trial court held the statute did not apply because Nisbet was a critical-care physician (not ED staff) and had admitted the patient to ICU; the Court of Appeals reversed that statutory interpretation but affirmed denial of summary judgment because a jury question remained whether plaintiff could prove gross negligence by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 51-1-29.5 applies | Davis: statute applies because care was provided in the ER to an emergent patient | Nisbet: statute does not apply because Nisbet was a critical-care physician and patient became ICU patient under her orders | Held: statute applies — “in a hospital emergency department” refers to patient’s physical location (ER), not physician’s department |
| Standard of proof required | Davis: must show gross negligence by clear and convincing evidence (if statute applies) | Nisbet: even under statute plaintiff cannot meet clear-and-convincing gross negligence standard; summary judgment warranted | Held: statute’s clear-and-convincing gross negligence standard governs, but genuine factual dispute exists whether plaintiff can meet it; summary judgment denied |
| Whether Nisbet’s failure to obtain surgical consult and delayed reexams constituted gross negligence | Davis: failure to consult surgeon and leaving while patient deteriorated was gross deviation from standard of care that a jury could find by clear and convincing evidence | Nisbet: she performed appropriate tests, examined the patient, and reasonably diagnosed aspiration pneumonia; lack of classic surgical signs refutes gross negligence | Held: Evidence (expert testimony, nursing notes, concessions by defense experts) creates a jury question on gross negligence — summary judgment improper |
| Proper interpretation of statutory phrase "in a hospital emergency department" | Davis: plain meaning is the patient’s physical location; statute covers any physician treating an ER patient | Nisbet: statute should be read by physician’s departmental role (ED vs ICU/critical care) | Held: plain meaning controls — refers to physical location (ER); physician specialty/department is irrelevant to statute’s applicability |
Key Cases Cited
- Abdel-Samed v. Dailey, 294 Ga. 758 (Ga. 2014) (treatment requiring emergency surgery can constitute "emergency medical care" under OCGA § 51-1-29.5)
- Quinney v. Phoebe Putney Mem. Hosp., 325 Ga. App. 112 (Ga. Ct. App. 2013) (care of patient in serious jeopardy in ER falls under emergency medical care statute)
- Gliemmo v. Cousineau, 287 Ga. 7 (Ga. 2010) (definition and standards for gross negligence in medical malpractice)
- Johnson v. Omondi, 294 Ga. 74 (Ga. 2013) (application of gross-negligence standard under OCGA § 51-1-29.5)
- Pottinger v. Smith, 293 Ga. App. 626 (Ga. Ct. App. 2008) (summary judgment appropriate where physician ordered proper diagnostic test and relied on another professional to evaluate results)