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Abdel-Samed v. Dailey

Although the Court of Appeals erred in finding a question of fact as to the applicability of O.C.G.A. § 51-1-29.5 subsection c because the care the defendants provided clearly constituted emergency medical care, a question of fact remained regarding whether the defendants acted with gross negligence pursuant to that statute.

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We granted a writ of certiorari in Dailey v. Abdul-Samed, 319 Ga. App. 380 736 SE2d 142 2012,1 to determine whether the Court of Appeals erred in this medical malpractice action by reversing the trial court’s grant of summary judgment in favor of the defendants.2 Because we conclude there exists a question of fact for jury determination, and therefore, the defendants were not entitled to summary judgment, we affirm.

Viewed in a light most favorable to the non-moving parties, Ryan and Cindy Dailey, the evidence shows that Ryan Dailey arrived at Spalding Regional Medical Center SRMC just after midnight on December 11, 2005, seeking treatment after he accidently shot paint thinner into his finger with a high pressure paint sprayer. Mark Epps, a physician’s assistant, examined Ryan and concluded he needed an immediate referral to a hand surgeon and emergency surgery. SRMC did not have a hand surgeon on call and Epps told Ryan and his wife, Cindy, that the on-call orthopedic surgeon did not like to be disturbed during the night. As a result, Epps stated surgery would have to wait until the morning. Meanwhile, Dr. Abdel-Samed, who had been informed of Ryan’s presence in the emergency room and of Epps’ diagnosis, was talking to Dr. John Seiler, a hand surgeon at Piedmont Hospital, about a different hand surgery patient she was transferring to him. In the course of this conversation, Dr. Abdel-Samed mentioned that she might have a second hand surgery patient, i.e., Ryan, to send him. Dr. Seiler responded that he would be willing to take and treat Ryan.

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