Nguyen v. Southwestern Emergency Physicians PC

A jury question remained as to whether a 6-month-old, who was misdiagnosed as having a minor injury in a hospital emergency room as opposed to the serious injury she actually suffered, was provided emergency medical care such that the medical defendants could claim the protections of the gross negligence standard provided in O.C.G.A. § 51-1-29.5 subsection c.

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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 § 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 § 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.

Nguyen v. Southwestern Emergency Physicians PC

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