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Bonds v. Nesbitt

A jury question remained as to whether the decedent at some point became stable and capable of receiving non-emergency services, thereby triggering an exception to O.C.G.A. § 51-1-29.5—providing that the plaintiff must prove gross negligence by clear and convincing evidence to recover in a medical malpractice action arising out of the provision of emergency medical services.

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Deborah Bonds sued Dr. Reginald Charles Nesbitt for the death of her husband, alleging that Dr. Nesbitt failed to provide necessary emergency treatment. The trial court granted Dr. Nesbitt partial summary judgment, ruling that OCGA § 51-1-29.5 applies. Under that statute, a plaintiff must prove gross negligence by clear and convincing evidence to recover in medical malpractice actions arising out of the provision of emergency medical services.

Bonds appeals, arguing that the cause of action does not arise out of the provision of emergency services but instead out of Dr. Nesbitt’s failure to provide appropriate emergency services. Consequently, she argues, the statute does not apply, she need only prove her case by a preponderance of the evidence, and a jury may hold Dr. Nesbitt liable if it finds that he acted negligently. Bonds also challenges rulings allowing testimony of a defense expert witness, excluding testimony of one of her expert witnesses, and allowing Dr. Nesbitt to depose a plaintiff’s expert for a second time.

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