Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals reversed the denial of summary judgment to an obstetrician for care related to a delivery complicated by shoulder dystocia. Plaintiff presented to Wellstar Kennestone Hospital for labor and delivery. Although the opinion is light on details, the inference is that the labor was uncomplicated until delivery of the shoulders. After shoulder dystocia was encountered, the obstetrician resolved it within 40 seconds using generally accepted maneuvers. The baby suffered injuries and the parents sued for medical malpractice.

Defendants moved for summary judgment, arguing that the gross negligence standard under O.C.G.A. §51-1-29.5 should apply. That statute reads, in part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

Defendants argued that all emergency medical care provided in an obstetrical unit is governed by the gross negligence standard. Defendants further argued that the limiting phrase “immediately following the evaluation or treatment of a patient in a hospital emergency department” only modifies “in a surgical suit” and not “obstetrical unit.” The Court agreed and reversed.

Take-home: This is a significant change in the application of this statute. Virtually all “birth injury” cases involve allegations of obstetrical emergency and applying the higher standard of care and burden of proof of Section 51-1-29.5 will provide additional protection to obstetrical providers. It remains to be seen whether Plaintiffs petition for certiorari and, if so, whether it is granted.

The case is Ob-Gyn Associates, P.A. v. Brown, __ S.E.2d ___ 2020 WL 6253453 (Ga.Ct.App. October 23, 2020).

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