Nguyen v. Sw. Emergency Physicians, P.C.

• Decision Date: 02 November 2015
• Docket Number: No. S15G0621.,S15G0621.
• Citation: 779 S.E.2d 334,298 Ga. 75
• Parties: NGUYEN et al. v. SOUTHWESTERN EMERGENCY PHYSICIANS, P.C. et al.
• Court: Georgia Supreme Court

298 Ga. 75

779 S.E.2d 334

NGUYEN et al.

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

No. S15G0621.

Supreme Court of Georgia.

Nov. 2, 2015.

Paul Graham Phillips, Flynn Peeler Phillips, LLC, Ralph O. Scoccimaro, Brown & Scoccimaro, P.C., Albany, for appellant.

Carl Richard Langley, Walton Spence, LLC, Albany, Jeffrey Daniel Braintwain, Erica S. Jansen, Huff, Powell & Bailey, LLC, Atlanta, for appellee.

Sidney Leighton Moore, III, Summerville Moore, PC, Darren Wade Penn, Harris Penn Lowry, LLP, Atlanta, for amicus appellant.

Henry D. Green, Jr., Daniel J. Moriarty, Green & Sapp, LLP, Atlanta, for amicus appellee.

NAHMIAS, Justice.

This case involves the application, on motion for summary judgment, of Georgia's so-called "ER statute," OCGA § 51–1–29.5, which requires that plaintiffs who bring malpractice claims based on "emergency medical care" provided in a hospital emergency department must meet a higher standard and burden of proof to prevail. In this case, the plaintiffs took their infant daughter, who had fallen off a bed, to the emergency room with what the child's mother described as a huge discolored bump on her head—a lump the size of an "apple" or "another head." The plaintiffs' lawsuit is based on allegations that the emergency room personnel committed malpractice in failing to properly evaluate the child and releasing her from the ER without diagnosing and treating her subdural hematoma

and skull fracture, which led a few days later to severe brain damage. The trial court granted partial summary judgment to the plaintiffs, holding that OCGA § 51–1–29.5 did not apply to their claim, but on appeal the Court of Appeals reversed. As explained below, we conclude that the Court of Appeals reached the right result, because the trial court misapplied OCGA § 51–1–29.5 as well as the summary judgment standard of review. We therefore affirm.

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 Pheobe 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 extremeties, 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 or 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 appeared 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.

Over the next two days, Keira appeared fine. On July 10, however, she stopped breathing. The babysitter called an ambulance and Keira was taken back to Pheobe Putney. Doctors there determined that she had a skull fracture

and a large subdural hematoma that was pressing on her brain, and they performed emergency surgery to relieve the pressure. Keira was then transferred to the pediatric ICU at the Medical Center of Central Georgia. A treating neurosurgeon testified in his deposition that the fluids in Keira's brain indicated that the subdural hematoma had been developing for days or weeks, and also said that he was surprised Keira had such a large skull fracture"from what was described as not much of an event." As a result of the subdural hematoma, Keira suffered severe brain damage. According to her parents' brief, she is now eight years old and unable to walk or talk.

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 moved for partial summary judgment, asking the trial court to rule that OCGA § 51–1–29.5 does not apply in this case. On October 8, 2013, the trial court granted the motion, concluding that "emergency medical care" as defined in OCGA § 51–1–29.5(a)(5)"requir[es] both the provider's belief that he was providing emergency care, and the patient's prior sudden and severe symptoms manifesting a medical or traumatic condition that objectively requires immediate medical attention," and that neither requirement was met in this case. The Providers appealed, and the Court of Appeals reversed, holding that although Keira was not diagnosed with a serious condition, there was some evidence that she had a medical condition that triggered the ER statute, so it is a question for the jury whether OCGA § 51–1–29.5 applies. See Southwestern Emergency Physicians, P.C. v. Nguyen, 330 Ga.App. 156, 160, 767 S.E.2d 818 (2014). We granted the Parents' petition for certiorari.

2. OCGA § 51–1–29.5(c) provides that for certain health care liability claims based on "emergency medical care," health care providers will be liable only if the plaintiffs prove by "clear and convincing evidence," rather than the usual preponderance of the evidence, that the "provider's actions showed gross negligence," rather than the usual ordinary negligence. See Johnson v. Omondi, 294 Ga. 74, 76, 751 S.E.2d 288 (2013). Subsection (d) of the statute then lists several things the jury in such a case must be instructed to consider, including whether the health care provider knew the patient's medical history or had a preexisting relationship with the patient and the circumstances of the emergency and the delivery of the emergency care.¹ To determine whether the Parents' claim in this case comes under the purview of this statute, we must examine several of the statute's elements.

(a) We look first at the location component of the ER statute. The Providers

contend that all, or almost all, claims based on treatment received in an emergency room should be subject to the higher proof standards of OCGA § 51–1–29.5(c) because the purpose of the General Assembly in enacting this provision, which was part of the Tort Reform Act of 2005, see Ga. L. 2005, p. 1, was to limit the tort exposure of health care providers in Georgia, and emergency care providers in particular. That may have been the overarching desire of many of the legislators who voted for the tort reform legislative package, but in construing the purpose of a particular statutory provision enacted into law,

"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, 294 Ga. 170, 172–173, 751 S.E.2d 337 (2013) (citations omitted). "[I]f the statutory text is ‘clear and unambiguous,’ we attribute to the statute its plain meaning, and our search for statutory meaning is at an end." Id. at 173, 751 S.E.2d 337.

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." OCGA § 51–1–29.5(c) and (d). But that is not the only requirement for the statute to apply. If it were, the statute would have been much shorter (as would this opinion). Instead, both subsections (c) and (d) specify that they apply in "action[s] involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department...." And, as we will discuss next, the statute provides a definition of "emergency medical care" that requires more than simply "care provided in an emergency department."

(b) As used in OCGA § 51–1–29.5, "emergency medical care" is defined as

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