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Southwestern Emergency Physicians, P.C. v. Nguyen

Court of Appeals of Georgia

November 21, 2014

SOUTHWESTERN EMERGENCY PHYSICIANS, P.C. et al.
v.
NGUYEN et al

Reconsideration denied December 4, 2014 -- Cert. applied for.

Emergency medical care; immunity. Dougherty Superior Court. Before Judge Marshall.

Watson Spence, C. Richard Langley, Huff, Powell & Bailey, Jeffrey D. Braintwain, Erica S. Jansen, for appellants.

Flynn Peeler Phillips, Paul G. Phillips, Brown & Scoccimaro, Ralph O. Scoccimaro, for appellees.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Branch, Judge

After six-month-old Keira Pech's treatment in July 2007 at the emergency room of Phoebe Putney Memorial Hospital, Keira's parents, Thu Carey Nguyen and Khoeun Pech, brought this negligence action against the hospital, the emergency room physician, the physician's assistant Michael J. Heyer, and Southwestern Emergency Physicians, P.C. (collectively, " defendants" ). Plaintiffs moved for partial summary judgment, arguing that because defendants did not supply " emergency medical care" as defined in OCGA § 51-1-29.5 (c) as a matter of law, they would be liable for any ordinary negligence in the case. The trial court granted the motion. We granted defendants' application for interlocutory review of this ruling,[1] and we now reverse.

Page 819

" Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555 (588 S.E.2d 441) (2003) (citations and punctuation omitted). A trial court's [330 Ga.App. 157] grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12 (530 S.E.2d 477) (2000).

Although we would view the record in favor of defendants as the nonmovants, the relevant facts are not in dispute. On the afternoon of July 7, 2007, while in the care of a babysitter, six-month-old Keira fell off a bed and hit her head on a suitcase. Because Keira's mother was alarmed by an apple-sized, red-purple lump on the right side of the baby's head, the mother took Keira to the Phoebe Putney Memorial emergency room. At or soon after 5:50 p.m., a paramedic employed by the hospital noted a hematoma on Keira's head. At 6:02 p.m., Heyer, the physician's assistant, diagnosed a " minor injury" consisting of a " scalp contusion," and did not call in the attending emergency room doctor or order radiology studies. Keira was discharged from the emergency room at 6:10 p.m. Three days later, Keira developed respiratory distress and was readmitted to the same hospital. A CT scan showed that a " very large subdural hematoma" was putting substantial pressure on Keira's brain. Keira eventually suffered severe and permanent neurological injuries.[2]

Plaintiffs moved for partial summary judgment on the ground that because none of the emergency providers who saw Keira on July 7 believed that her symptoms presented a medical emergency, she did not receive " emergency medical care" as defined in OCGA § 51-1-29.5 (a), with the result that defendants can be held liable for ordinary negligence in the case. The trial court granted partial summary judgment to plaintiffs on this ground.

1. Defendants' principal argument on appeal is that the trial court erred in granting plaintiffs partial summary judgment because a question of fact remains as to whether Keira was provided " emergency medical care" such that defendants may claim the protections of the " gross negligence" standard set out in OCGA § 51-1-29.5 (c). We agree.

OCGA § 51-1-29.5 (a) (5) defines " emergency medical care" as

bona fide emergency services provided after the onset of a 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 expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or [330 Ga.App. 158] serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized ...

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