Lead Opinion
This Court granted a writ of certiorari to the Court of Appeals in Johnson v. Omondi,
As set forth in the plurality opinion of the Court of Appeals, and as revealed in the record, Thelma Johnson took her 15-year-old son Shaquille to the emergency department at Phoebe Putney Memorial Hospital on December 29, 2007; a week earlier, Shaquille had undergone arthroscopic knee surgery. Shaquille complained of chest pain; was first seen by a nurse; and then examined by Dr. Price Paul Omondi. Dr. Omondi ordered that Shaquille be administered pain medication, an electrocardiogram (“EKG”), and a chest x-ray; he interpreted the results of the EKG and x-ray himself. Dr. Omondi noted that Shaquille had undergone arthroscopic knee surgery a week earlier; he inquired about Shaquille’s medical history and family history and conducted a physical examination. Dr. Omondi ruled out asthma, pericarditis, myocardial infarction, pneumothorax, and, specifically, pulmonary embolism
Thelma Johnson and her husband (“the Johnsons”) sued Dr. Omondi and Southwest Emergency Physicians, PC., Dr. Omondi’s employer (collectively, “Dr. Omondi”), for medical malpractice. Dr. Omondi moved for summary judgment, which the trial court granted. On appeal to the Court of Appeals, in a plurality opinion, that Court looked, to OCGA § 51-1-29.5 (c), held that there was no genuine issue of material fact to dispute Dr. Omondi’s argument that he could not be liable under that statute, and affirmed the trial court.
It is certainly true that OCGA § 51-1-29.5 (c) controls this case. That subsection of the Code sets forth:
In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant.
And, there is no dispute that Dr. Omondi was acting as a physician, providing emergency medical care, in a hospital emergency department, as contemplated by OCGA § 51-1-29.5 (c). Thus, this is one of those cases in which the General Assembly has placed a higher evidentiary burden on plaintiffs such as the Johnsons, namely, that any departure from accepted standards of medical care must be shown, by clear and convincing evidence, to be gross negligence.
As noted, the trial court granted Dr. Omondi summary judgment.
A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. [Cit.] The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. [Cit.]
Ansley v. Raczka-Long,
In an ordinary medical malpractice action, some evidence that Dr. Omondi violated the standard of care would generally serve to defeat his motion for summary judgment on that issue. See, e.g., Aleman v. Sugar loaf Dialysis, LLC,
In regard to the trial court’s role in evaluating a motion for summary judgment when a heightened evidentiary burden such as “clear and convincing” has been imposed, we find instructive the opinion of the United States Supreme Court in Anderson v. Liberty Lobby, Inc.,
Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall,and these standards and boundaries are in fact provided by the applicable evidentiary standards.
Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. [Cit.]
Id. at 254-255 (II) (B). And, the heightened evidentiary burden imposed in cases falling under OCGA § 51-1-29.5 (c) must necessarily be considered on a motion for summary judgment. When faced with such a heightened burden, “a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability....” Id. at 254. “The appropriate summary judgment question is ‘whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown [the required element] by clear and convincing evidence or that the plaintiff has not.’ ” Howard v. Pope,
At trial, the conduct that the Johnsons would bear the responsibility to show by clear and convincing evidence was that Dr. Omondi’s treatment of Shaquille constituted gross negligence under OCGA § 51-1-29.5 (c). Although many terms used in OCGA § 51-1-29.5 are defined therein, that Code section does not contain a definition of “gross negligence.” However, this Court has previously recognized that, as “gross negligence” is not specifically defined in OCGA § 51-1-29.5, the term carries the general meaning set forth in OCGA § 51-1-4. Gliemmo v. Cousineau,
gross negligence is the absence of even slight diligence, and slight diligence is defined in [OCGA § 51-1-4] as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” In other words, gross negligence has been defined as “equivalent to (the) failure to exercise even a slight degree of care” ([cits.]), or “lack of the diligence that even careless men are accustomed to exercise.” [Cit.]
Gliemmo, supra at 12-13 (4).
Dr. Omondi’s own testimony was that he recognized the potential for pulmonary embolism and that it was part of his differential diagnosis, but that he ruled it out because: Shaquille was not of an age in which that condition was common; his vital signs were normal, including his pulse oximetry which was “perfect”; and he did not have shortness of breath. Dr. Omondi also testified that he diagnosed pleurisy because, when he ordered that Shaquille be given an injection of the pain medication Toradol, Shaquille responded
The Johnsons submitted expert testimony that Dr. Omondi’s actions did not meet the standard of care “in the medical profession generally under like and similar circumstances,” and that he did not take action that would be appropriate to exclude pulmonary embolism from his diagnosis of Shaquille’s condition and treatment thereof. And, expert testimony specifically noted that the symptoms Shaquille presented were “classical” indications of pulmonary embolism and that the diagnostic measures that Dr. Omondi took in response to those symptoms “did nothing to prove or disprove the presence” of pulmonary embolism. Rather, Shaquille’s response to the administration of Toradol was termed “totally irrelevant” to investigating whether he had pulmonary embolism, and Dr. Omondi’s reliance on it to exclude pulmonary embolism was termed “ridiculous.” There was expert testimony that, in order to exclude pulmonary embolism from his diagnosis, the standard of care required Dr. Omondi to administer a CT scan, or a lung scan, which he did not do.
Given this evidence, a reasonable jury could find, by clear and convincing evidence, that in addressing Shaquille’s symptoms, Dr. Omondi acted with gross negligence, i.e., that he lacked “the diligence that even careless men are accustomed to exercise.” Gliemmo, supra; Howard, supra. Thus, this case is unlike Pottinger v. Smith,
It was error for the trial court to grant Dr. Omondi’s motion for summary judgment, and the judgment of the Court of Appeals affirming that decision must be reversed.
Judgment reversed.
Notes
There was testimony that Shaquille’s recent surgery increased the possibility of pulmonary embolism occurring.
The dissent in the Court of Appeals takes issue with what it terms the plurality’s “suggestion that immunity applies as long as some care is provided...Johnson, supra at 799 (Miller, P. J., dissenting). Of course, the requirement to exercise a “slight degree of care” does not mean that Dr. Omondi was required to provide merely “some medical care” so as to avoid liability under O CGA § 51 -1 -29.5 (c). Rather, exercising “a slight degree of care” and acting with “slight diligence” means exercising “that degree of care which every man of common sense, however inattentive he maybe, exercises under the same or similar circumstances.” Gliemmo, supra.
Concurrence Opinion
concurring.
I concur fully in the opinion of the Court. I write separately, however, to more fully explain my understanding of “gross negligence,” as that standard is applied in medical malpractice cases. I also write separately to share some additional thoughts about summary judgments in cases in which OCGA § 51-1-29.5 applies.
1. “Gross negligence” is a familiar standard in our law, see Peavy v. Peavy,
[G]ross negligence is the absence of even slight diligence, and slight diligence is defined... as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of the diligence that even careless men are accustomed to exercise.
Gliemmo v. Cousineau,
The problem with these definitions is not that they are wrong, but that they were written for a very different context and time. Gross negligence appears to have found its way into our law in the Nineteenth Century as the measure of the fault by which a gratuitous bailee was liable for the loss of a bailment, see Merchants Nat. Bank v. Guilmartin,
But medical malpractice cases are different. The practice of medicine requires years of professional training and specialized education, and most ordinary citizens do not practice medicine — or even observe its practice — as a part of their daily routines. Judges, lawyers, and jurors usually need help to assess the fault of a physician. See Summerour v. Lee,
By its enactment of OCGA § 51-1-29.5, the General Assembly did not divorce the generally accepted standards of medical care from the cases to which the statute applies. Indeed, OCGA § 51-1-29.5 itself makes this point quite plainly, insofar as it applies only with respect to “health care liability claim[s],” OCGA § 51-1-29.5 (c), andit expressly defines a “health care liability claim” as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care ____”
We find the beginnings of such a definition in the Georgia precedents. In a number of cases, our Court of Appeals has said that “gross negligence” is “carelessness manifestly materially greater than want of common prudence.” See, e.g., Rider v. Taylor,
These precedents suggest a more helpful definition, one that focuses less on the care provided by the emergency physician as compared to no care at all, and one that focuses more on the degree of deviation from the applicable standard of care, a standard that necessarily must be supplied by evidence of the generally accepted practices of the medical profession in similar circumstances, just as the plain terms of OCGA § 51-1-29.5 contemplate. In the words of the precedents, “gross negligence” in the medical malpractice context means “carelessness manifestly materially greater than want of” the “degree of skill and care the medical profession generally would have exercised under similar circumstances.” Put in plainer terms — just as the plaintiffs in this case put it —
[liability is authorized under OCGA § 51-1-29.5 (c) where the evidence of record, including the admissible testimony of qualified experts, would permit a reasonable jury to find by clear and convincing evidence that the defendant caused harm by grossly deviating from the applicable medical standard of care.4
As other jurisdictions have recognized,
No one should understand this concurring opinion to suggest that “gross negligence” means something different in OCGA § 51-1-29.5 than elsewhere in the Code and case law. To the contrary, this opinion only suggests that we articulate the “gross negligence” standard in a different way in medical malpractice cases, so as to focus more explicitly upon the accepted standards of medical care against which “gross negligence” must be measured in such cases. Such an articulation would be more helpful to judges, lawyers, and jurors than the articulation that the Court offers today. But with the understanding that the opinion of the Court is perfectly consistent with such an articulation — the Court does not say so expressly, but it looks in its opinion to the accepted standard of medical care in the circumstances in which Dr. Omondi found himself, and it finds some evidence in the record of a substantial and gross deviation from that standard by Dr. Omondi — I am content to join that opinion.
2. About summary judgment, Dr. Omondi and several of the amici curiae worry in their briefs that, if summary judgment is not warranted in this case, it will be no more available in cases in which OCGA § 51-1-29.5 applies than in ordinary medical malpractice cases. And if that is so, they say, the legislative purpose of OCGA § 51-1-29.5 will have been frustrated. But the change worked by the enactment of OCGA § 51-1-29.5 is a real one. It always will be harder to prove “gross negligence” than “ordinary negligence,” and it always will be harder to prove fault by clear and convincing evidence than by a mere preponderance of the evidence. For that reason, there will be some cases to which the statute applies in which summary judgment is warranted, notwithstanding that a plaintiff in an ordinary malpractice case might survive summary judgment on the same record. See, e.g., Pottinger v. Smith,
Viewing the record in this way is required by OCGA § 9-11-56 (c), and nothing in OCGA § 51-1-29.5 purports to modify the usual standard for summary judgment. More important, even if the General Assembly sought to make summary judgments more common in emergency malpractice cases, its power to do so is limited. After all, viewing the record as we must on motions for summary judgment is required not only by OCGA § 9-11-56 (c), but also in large part by the Constitution, which commits the adjudication of genuine disputes of material fact to the jury, and which safeguards the constitutional prerogatives of the jury against legislative and judicial encroachments alike. See Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a) (“The right to trial by jury shall remain inviolate. . . .”). See also Atlanta Oculoplastic Surgery v. Nestlehutt,
That OCGA § 51-1-29.5 may not produce many more summary judgments, however, does not mean that it is insignificant. The statute essentially tells a jury to put one thumb on the scale for the defendant as to “gross negligence,” and to put the other thumb as well on the scale for the defendant as to “clear and convincing” proof. Unlike at summary judgment, these thumbs on the scale may produce far more defense verdicts at trial than in ordinary malpractice cases. In criminal cases, after all, the prosecution must prove guilt beyond a reasonable doubt, a burden even heavier than the burden to prove fault by clear and convincing evidence. Yet, we do not see criminal cases routinely decided by directed verdicts of acquittal. Most criminal cases go to the jury, but juries — when charged with their obligation to acquit unless the evidence proves the guilt of the defendant beyond a reasonable doubt—render defense verdicts in no small number of cases. No one should be surprised if medical malpractice cases under OCGA § 51-1-29.5 turn out in much the same way.
I am authorized to state that Justice Nahmias joins this opinion.
Several of the amici curiae in this case seek to divorce the generally accepted standards of emergency medical care from the emergency medical malpractice cases to which the statute applies. They urge, for instance, that expert medical testimony is wholly irrelevant, inasmuch as judges, lawyers, and lay jurors can assess for themselves whether a physician has exercised “slight care” or has done what a “man of common sense” would do. These arguments strike me as rather silly, especially in light of the plain language of OCGA § 51-1-29.5, which makes perfectly clear that the generally accepted standards of medical care still have a significant role to play in cases to which the statute applies. But our continuing reliance on archaic definitions of “gross negligence” that do not expressly account for accepted standards of medical care may invite such silliness.
As amicus curiae, the Medical Association of Georgia argues that OCGA § 51-1-29.5 “imposes a ‘gross negligence’ standard, not a ‘gross deviation from the standard of care’ standard.” That the statute sets up “gross negligence” as the standard of liability is true enough. But the question is whether “gross negligence” in this context means something other than a “gross deviation from the standard of care.” As I have noted several times, the statute contemplates that it will apply only in certain cases in which a physician or other medical provider is alleged to have deviated from the generally accepted standards of medical care. So, those generally accepted standards must be a part of the proof of “gross negligence.” And as evidenced by the precedents that I have cited, our courts have traditionally defined “gross negligence” in terms of, among other things, a substantial, gross, or “manifestly materially greater” deviation from the standard of care. The definition of “gross negligence” urged by the plaintiffs is the one that reconciles the traditional understandings of “gross negligence” with the statutory command that the accepted standards of medical care still count for something in the emergency room.
Long before the enactment of OCGA § 51-1-29.5, Georgia law accounted to some extent for the emergency circumstances in which an emergency physician might find himself by limiting the medical standard of care to that standard generally accepted in the medical profession in the same or similar circumstances. See Bennett, Ga. Medical Torts — Physicians § 3-8, p. 37 (1981).