Emergency room malpractice claims in Georgia and O.C.G.A. § 51-1-29.5

Section 51-1-29.5(c) requires clear and convincing evidence of gross negligence for emergency medical care in a hospital emergency department, an obstetrical unit, or a surgical suite immediately after emergency evaluation. A patient in one of those settings can still bring a claim, but ordinary malpractice proof will not carry it. The first question is whether the act at issue meets the statute’s definition, because care after stabilization falls outside it.

Where the rule applies and where it stops

Situation	Effect	Text
Emergency medical care in a hospital emergency department	Heightened standard	§ 51-1-29.5(c)
Emergency medical care in an obstetrical unit	Heightened standard	§ 51-1-29.5(c)
A surgical suite immediately after emergency department evaluation or treatment	Heightened standard	§ 51-1-29.5(c)
The patient is stabilized and can be treated as a nonemergency patient	Not emergency medical care	§ 51-1-29.5(a)(5)
Care unrelated to the original emergency	Not emergency medical care	§ 51-1-29.5(a)(5)

The definition in (a)(5) covers “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 serious dysfunction of any bodily organ or part.”

Two statements about this statute do not match the text. It does not ask whether the condition arose “suddenly and unexpectedly”. It asks about acute symptoms and what the absence of immediate attention could be expected to do. And a prior relationship between patient and provider does not remove the standard. Being in the emergency department also does not settle the question, because the same visit can include care before and after stabilization.

What the jury must be told to consider

In a case under the statute, subsection (d) says the court “shall instruct the jury to consider, together with all other relevant matters”:

1. whether the person providing care had, or could obtain, the patient’s medical history, including preexisting conditions, allergies, and medications;
2. the presence or lack of a preexisting physician-patient or provider-patient relationship;
3. the circumstances constituting the emergency; and
4. the circumstances surrounding the delivery of the emergency medical care.

These factors tell both sides what to develop. If a patient’s history was in the same hospital’s chart, the first factor may help the patient. If the department had no way to reach it, the factor may help the provider.

Gross negligence and clear and convincing evidence

Section 51-1-29.5 does not define gross negligence. The term takes its meaning from O.C.G.A. § 51-1-4, which calls slight diligence “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances”, and calls its absence gross negligence. In Gliemmo v. Cousineau, 287 Ga. 7, the Supreme Court upheld subsection (c) against a challenge that it was an unconstitutional special law. It also described gross negligence as “equivalent to” the failure to exercise even a slight degree of care.

The evidence standard is a separate hurdle. Proof has to reach the clear and convincing level, and the conduct proved has to reach gross negligence.

What got past summary judgment in Johnson v. Omondi

Johnson v. Omondi, 294 Ga. 74, is the Supreme Court decision to read first. A 15-year-old came to an emergency department with chest pain a week after knee surgery. The physician testified that he considered a pulmonary embolism and ruled it out, and that the patient’s response to a pain injection supported a diagnosis of pleurisy.

The plaintiffs’ experts called the symptoms “classical” indications of pulmonary embolism and said the response to the injection was “totally irrelevant” to that question. The Court said some evidence of a standard-of-care violation would normally defeat summary judgment in an ordinary case, and that this standard requires more. On this record, it held that a reasonable jury could find gross negligence, and it reversed.

The Court contrasted Pottinger v. Smith, 293 Ga. App. 626, where the physician ordered an x-ray suited to the symptoms and relied on another professional’s reading of it. Taken together, the comparison suggests a question: did the steps the provider took address the condition the symptoms pointed to? Doing something does not end the inquiry, and neither does a bad outcome. Omondi also says courts may resolve gross negligence as a matter of law in “plain and indisputable cases”, so this stays fact-specific.

Experts and pleading

The affidavit rule in § 9-11-9.1 and the qualification rule in § 24-7-702 apply here as they do in other malpractice cases. The expert affidavit page has the mechanics. In Omondi, the opinion describes experts addressing the standard of care and why the diagnostic steps failed to test for the condition, and the Court drew the gross negligence conclusion from that evidence for summary judgment purposes. How much an expert must say about gross negligence by name in a given case is a matter for counsel to check.

Records that matter in an emergency case

• Triage notes with the complaint and the assigned acuity.
• Time stamps for arrival, physician contact, orders, results, and discharge.
• What history was available, because of (d)(1).
• Which test was ordered for which suspected condition.
• Any note marking stabilization or a change in the patient’s status, because of (a)(5).
• Discharge instructions and return precautions.

Time-sensitive treatment questions, such as how long a stroke treatment remains available, should come from the expert for the specific patient. A general article should not supply them.

The federal screening law is a separate claim

The Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd, requires a participating hospital with an emergency department to provide “an appropriate medical screening examination” and to stabilize or appropriately transfer a person with an emergency condition. It allows a person who suffers personal harm as a direct result of a violation to bring a civil action against the participating hospital, within two years after the date of the violation. That claim is against the hospital. It is not a substitute for a malpractice theory against a physician, and its elements differ from negligence.

Order of analysis

1. Pin down each act and where it happened.
2. Decide whether the patient was in emergency care or already stabilized at that moment.
3. Separate acts on each side of that line, because the proof may differ.
4. Ask an expert what the steps actually tested for, and what was missed.
5. Check the deadline under limitation and repose, and the notice rules if the hospital is public.

The heightened standard can decide the case, so it should be tested act by act and never assumed from the department’s name on the bill. Help given at a roadside or other scene raises a different rule, covered in Good Samaritan immunity. How a malpractice claim works covers the steps that apply to any provider.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-71, 9-11-9.1, 24-7-702, 51-1-4, 51-1-29.5
• Johnson v. Omondi, 294 Ga. 74
• Gliemmo v. Cousineau, 287 Ga. 7
• 42 U.S.C. § 1395dd

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.