Nguyen v. Southwestern Emergency Physicians, P.C.Nguyen v. Southwestern Emergency Physicians, P.C.
This сase involves the application, on motion for summary judgment, of Georgia’s so-called “ER statute,”
1. The record in this case shows the following. On the afternoon of July 7, 2007, Keira Pech, who was then six months old, was at her home in Albany with a babysitter when she fell off a bed and hit her head on some luggage. The babysitter called Keira’s mother, Thu Carey Nguyen, and told her about the fall. Nguyen came home from work, and when she saw the large bump on the back of Keira’s head, which Nguyen described in her deposition as reddish-purple in color and the size of an “apple” or “another head,” she drove Keira to the emergency department at Phoebe Putney Memorial Hospital.
Khoeun Pech, Keira’s father, joined them at the hospital. While they waited in the emergency room, Keira was a little fussy, crying some and sleeping some. Keira was first seen by Roy Evans, a paramedic employed by the hospital to triage patients. At about 5:50 p.m., Evans conducted an examination of Keira lasting around three minutes. At his deposition, he testified that, although he could not remember Keira’s exam, he would have, by habit, palpated the area of the bump on her head, observed the way she moved her extremities, and tested if she had normal infant grasping reflexes. Evans noted on Keira’s medical chart that she had a hematoma and that she did not appear to be experiencing any pain. He assigned her a priority level 4, which he said meant that “if no emergency medicine is applied, this person is not going to die оr suffer serious injury.” Keira was sent to the “fast track” area of the emergency department, the area for “non-emergency” patients.
Keira was then examined for about ten minutes by Michael Heyer, a physician’s assistant employed by Southwestern Emergency Physicians. Heyer learned from Nguyen that Keira had fallen from a bed and hit her head. He conducted a series of routine exams, including neurological and musculoskeletal, and he testified at his deposition that based on all of the exams, Keira appеared normal, with the exception of the contusion on her head. Contrary to Nguyen’s description of the size of the swelling, Heyer described it as “moderate,” which he explained meant “a small area.” He also noted that the child was interacting with her parents normally. Heyer concluded that Keira did not display any signs that she needed to be examined by a doctor or needed more testing, such as a skull x-ray or head CT scan. In her medical chart, Heyer recorded Keira’s “symptom and problem” as “Local soft tissue swelling/injury posterior occipital scalp injury at home/environs Fall from bed.” Her condition was recorded as “stable,” and she was discharged from the ER at 6:10 p.m. with instructions to return in three to five days or immediately if she started vomiting or her symptoms worsened.
Nguyen and Pech (collectively, “Parents”), as the parents of Keira, filed this medical malpractice lawsuit against Southwestern Emergency Physicians, Phoebe Putney, and Heyer (collectively, “Providers”), alleging that the ER health care providers failed to properly evaluate, diagnose, and treat Keira on July 7, 2007, and due to this “malpractice, negligence, and gross negligence,” Keira suffered permanent brain injuries. The Parents later mоved for partial summary judgment, asking the trial court to rule that
2.
(a) We look first at the location component of the ER statute. The Providers
“we must presume that the General Assembly meant what it said and said what it meant.” To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
Deal v. Coleman,
It is clear that the ER statute applies only when the medical care at issue was provided “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.”
(b) As used in
bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including sevеre pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.
In interpreting this definition, the trial court construed “bona fide emergency services” as services that are provided in “good faith,” meaning that the health care provider must have had “a good faith belief that he was providing emergency care.” In a decision issued after the trial court’s order, however, this Court held that “bona fide emergency services,” read in context, means “genuine or actual emergency services.” Abdel-Samed v. Dailey,
Indeed, other language in
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 cаre, 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.
Thus, the “bona fide emergency services” element precludes a health сare provider from benefitting from the protections of the ER statute with regard to care that, viewed objectively, was not emergency service, such as giving routine flu shots at a clinic set up in an ER. But medical services commonly provided in an emergency department, like evaluating, classifying, and treating patients who come in asserting that they require emergency care, will generally be “bona fide emergency services,” even if the result of those services is that the patient is diagnosed as not needing (or no lоnger needing) emergency treatment. See Howland,
(c) Similarly, whether the condition of the patient meets the definition of “emergency medical care” is an objective, rather than subjective, test. See Bonds,
medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be еxpected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.
Although the health care provider’s subjective opinion about the patient’s condition is not controlling, it is relevant as evidence of the patient’s condition. See Howland,
On the other hand, symptoms that the patient developed or manifested after the emergency department care at issue are not relevant to this question, even if those later symptoms reveal that at the time the patient was in the ER, she was actually suffering from a life-threatening condition. “Emergency medical care” is limitеd to “services provided after the onset” of the condition manifesting itself by acute and severe symptoms.
3. We now apply these principles to the facts of this case, recognizing that we do so in the context of a summary judgment order.
“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. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only requirеd to present evidence that raises a genuine issue of material fact.” Our review of the grant or denial of a motion for summary judgment is de novo.
Johnson,
It is undisputed that Keira’s care was provided “in a hospital emergency department.” The evidence also shows that Keira was given “bona fide emergency services,” when that phrase is properly understood to focus on the services provided rather than, as the trial court erroneously understood it, to focus on the Providers’ belief that Keira did not require emergency care. See Division 2 (b) above. Keira was examined and diagnosed by two health care providers tasked with triaging and treating patients in the emergency department. The fact that she was given a non-emergency ranking when classified by paramedic Evans and treated as a non-emergency patient when examined by physician’s assistant Heyer does not prevent these evaluations from being “bona fide emergency services” under the ER statute.
As to the evidence of Keira’s manifested symptoms, both Evans and Heyer classified her as a non-emergency case. Heyer testified that she was interacting normally with her parents, and all of the evidence from the Providers indicates that the injury to Keira’s head was not severe, including her medical chart and Heyer’s testimony characterizing Keira’s head contusion as “small.” Based on this evidence, the trial court concluded that “there is no evidence that Keira had severe pain, or any other severe symptoms” bringing this case within the scope of
The record includes evidence that the Providers knew that Keira was a six-month-old child who had been brought to the ER after falling from a bed onto her head. Those were relevant facts. As the Parents’ medical expert explained in his affidavit, the risks of severe injuries from such a fall are greater for children under two years of age. But more importantly, and not mentioned in the trial court’s order, rather than characterizing the bump on the back of Keira’s head as “small,” Keira’s mother, Nguyen, described the injury in her deposition as a reddish-purple swelling the size of an “apple” or “another head.” Evidence that an infant fell on her head and suffered a bruise that had
Of course, a jury might also disbelieve Nguyen’s description of Keira’s head injury, which seems at the least exaggerated and is contradicted by testimony from two medical professionals that is supported by contemporaneous medical records. Nevertheless, that is a determination to be made by a jury, not a court applying the summary judgment standard of review. As we recently reiterated in a case that involved the “gross negligence” element of
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.
Johnson,
When a court considers a motion for summary judgment [underOCGA § 9-11-56 (c) ], it must view the pleadings and evidence in the light most favorable to the nonmoving party, it must accept the credibility of the evidence upon which the nonmoving party relies, it must afford that evidence as much weight as it reasonably can bear, and to the extent that the moving party points to conflicting evidence, it must discredit that evidence for purposes of the motion. Thus, if a defendant in a case like this one moves for summary judgment and points to the favorable testimony of a dozen winners of the Nobel Prize for Medicine (all of whom say that he did not deviate at all from the accepted standard of medical care), but the plaintiff responds with the admissible testimony of a barely qualified medical expert (who shows that the defendant substantially and grossly deviated from the accepted standard of medical care), the trial court must assume — as unlikely as it may be — that the jury will believe the plaintiff’s expert and disbelieve the expert array offered by the defendant. For purposes of the motion for summary judgment, the trial court would consider the testimony of the plaintiff’s expert, but not the conflicting testimony of the Nobel Prize winners.
Johnson,
In sum, the record shows a genuine issue of material fact as to whether the heightеned proof standards set forth in
Judgment affirmed.
Notes
(c) 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.
(d) In an action involving a health 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, the court shall instruct the jury to consider, together with all other relevant matters:
(1) Whether the person providing care did or did not havе the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;
(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;
(3) The circumstances constituting the emergency; and
(4) The circumstances surrounding the delivery of the emergency medical care.
In finding the evidence sufficient to trigger
We are not oblivious to the ironies produced by the evidence in this case and by the ER statute in general. Due to the summary judgment standard of review, the defendant Providers are avoiding a pre-trial ruling that
In the Court ofAppeals, the Providers argued that they are entitled to summary judgment that