Medical procedures are an integral part of healthcare, providing patients with treatments and interventions that can save lives and improve their quality of life.
However, the healthcare industry is not immune to errors, and medical procedure errors can have serious consequences.
In this article, we will delve into the topic of medical procedure errors, exploring their causes, prevention strategies, and the legal implications that healthcare professionals may face when such errors occur.
Damages in a medical malpractice case are no different from those in a typical personal injury case. A plaintiff is entitled to recover both general and special damages. General damages, obviously, include compensation for physical and mental pain and suffering, both past and future, as well as a diminished capacity to work, labor, and earn money. These are elements encompassed in the definition of pain and suffering as well.
Because pain and suffering is considered an element of general damages, it is awarded to a plaintiff to compensate for non-pecuniary losses and hardships whether mental, physical, or both. The measure of such damages is the enlightened conscious of fair and impartial jurors. Roberts v. Chapman, 228 Ga. App. 365, 492 S.E. 2d 144 (1997). If a plaintiff can show that he or she will likely continue to suffer physical and mental pain as a result of injuries into the future, then the jury may award damages for future pain and suffering. Bennett v. Haley, 132 Ga. App. 512, 208 S.E. 2d 302 (1974). Again, a plaintiff’s diminished capacity to labor and earn money is an additional element of general damages which can be included in a pain and suffering award. Baxter v. Bryan, 122 Ga. App. 817, 178 S.E. 2d 724 (1970).
Special damages in a medical malpractice case can be extensive. If malpractice occurs and a plaintiff is hospitalized for weeks, if not months (and we have had cases where the plaintiff was hospitalized for over a year) the medical expenses can be extraordinary. Such damages, of course, are deemed to be special damages under O.C.G.A. § 51-12-2. Special damages include medical expenses, past, present and future, lost wages, future earnings and lost profits.
In most instances, medical malpractice cases in Georgia are subject to a two-year statute of limitations from the date of injury or death. See O.C.G.A. § 9-3-71(a). Medical malpractice cases differ from automobile cases and other types of tort cases in that it typically takes much longer to prepare and file suit. In many instances, it takes a minimum of three months from when the case first comes in to 1) obtain certified medical records, 2) find an expert to review the case, 3) prepare the Complaint and expert Affidavit and 4) file and serve the defendant(s). In any medical malpractice case where the relevant statute of limitations will expire in six months or less, a practitioner should carefully scrutinize the potential case and act quickly in either moving forward with the case or notifying the potential client in writing, preferably via certified mail or using some other verified service method, that they will not accept the case.
While the typical medical malpractice case is subject to a two-year statute of limitations, there are exceptions:
In “foreign object” cases involving leaving objects inside patients during surgery, such as sponges, needles, broken scalpels, etc., may be brought any time within one year of discovery of the object. See O.C.G.A. § 9-3-72.
Prior the COVID-19 pandemic, in order to successfully bring a medical malpractice claim in Georgia, a plaintiff was required to offer expert medical testimony to the effect that the defendant physician or healthcare provider failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances. See Boling v. Foster, 254 Ga. App. 374 (2002). The legal duty owed by medical professionals was to exercise “a reasonable degree of care and skill.” See O.C.G.A. § 51-1-27. This is the standard that applied in the vast majority of medical malpractice cases. A narrow exception existed for the provision of emergency medical care in a hospital emergency department or obstetrical department, where it is necessary to prove by “clear and convincing evidence” that the physician or healthcare provider’s actions showed “gross negligence.” See O.C.G.A. § 51-1-29.5(c).
This threshold for proving liability in Georgia medical malpractice cases changed with Governor Kemp’s Executive Order entered April 14, 2020 concerning the Covid-19 crisis. Executive Order 04.14.20.01, limits liability for any harm done by the employees, staff, and contractors of healthcare institutions and medical facilities during the “Public Health State of Emergency” as to negligence, but not gross negligence, regardless of whether such service is related to the Public Health State of Emergency. “Gross negligence” is the absence of even slight diligence, and slight diligence is defined as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” Gliemmo v. Cousineau, 287 Ga. 7 (2010). The Executive Order applies to all clinics, hospitals, nursing & assisted living facilities, as well as ambulatory surgical centers.
The Executive Order further provides that “The employees, staff, and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to Code Section 38-3-35.” O.C.G.A. § 38-3-35(b) provides that auxiliary emergency management workers are immune from liability for harm, including death, sustained by persons as a result of “emergency management activity”, unless such emergency activity causing the harm was due to willful misconduct, gross negligence, or bad faith. O.C.G.A. § 38-3-3(2) defines “emergency management” broadly, as “the preparation for the carrying out of all emergency functions … to prevent, minimize, and repair injury and damage resulting from emergencies … These functions include, without limitation … emergency medical services … together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.” This means that “auxiliary emergency management workers” are immune from liability even if they acted negligently in providing medical care to a patient in Georgia. Instead, in order to recover a plaintiff must prove that the medical care provided constituted gross negligence.
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