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The Georgia Supreme Court Further Erodes Emergency Medical Care Statute O.C.G.A. § 51-1-29.5

In Abdel -Samed v. Dailey, No. S13G0657 (Ga. Sup. Ct, February 24, 2014), the Court held under the facts of this case a question of fact existed as to whether the defendant physician exercised gross negligence. Most importantly, the Court defined gross negligence in the medical malpractice context such that it will almost always be a question of fact for a jury.

The Court acknowledged the definition under O.C.G.A. §-51-1-4 is the absence of even slight diligence, which is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances." The Court continued that in a medical malpractice case, liability would be authorized only where "the evidence, including admissible expert testimony, would permit a jury to file by clear and convincing evidence that the defendants caused harm by grossly deviating from the applicable medical standard of care."

Negatively, it continued that as a general rule "when facts alleged as constituting gross negligence such there is room for difference of opinion between reasonable people as to whether or not negligence can be inferred, and if so, whether the negligence amounts to gross negligence, the right to draw the inferences is within the exclusive province of the jury."

Richard Tisinger, Jr.

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