The Georgia Court of Appeals reversed the dismissal of an estate’s EMTALA claim for disparate treatment against a hospital. The decedent presented to the hospital in kidney failure. The estate alleged that the hospital’s emergency department did not perform a medical screening exam to determine whether the decedent had an emergency medical condition, did not order labs, did not admit the patient, and sent the patient to home, where she died. The estate alleged negligence, violation of EMTALA, gross negligence, and failure to maintain medical records. The hospital filed a motion to dismiss for failure to state a claim and failure to file an expert affidavit. The trial court granted the motion.

The Court of Appeals reversed the dismissal of the EMTALA claim, holding that failure to perform a medical screening exam is not an action for professional negligence for which an expert affidavit is required. Rather, EMTALA requires a hospital to have a practice in place to ensure that patients with similar medical emergencies are treated the same and are not dumped or discharged when others would be treated, admitted, or transferred. The Court reasoned that EMTALA does not turn on the exercise of professional judgment or how a reasonable hospital would act. Rather, the EMTALA claim turns on whether the patient was treated the same as similarly situated patients, not whether the care was reasonable, met the standard of care, or negligent.

In part 2, the Court held that a claim for gross negligence under Section 51-1-29.5 requires an expert affidavit. Section 51-1-29.5 (the emergency medical care statute) is an evidentiary statute, while Section 9-11-9.1 is a pleading requirement.

Take-home: the result is correct, but some of the Georgia precedent on which the Court relied dealt with a different issue (national standard v. community standard). As this was a motion to dismiss and not summary judgment, there is still an open question as to whether there is a cause of action under EMTALA. See e.g., Correa v. Hosp. San Francisco, 69 F.3d 1184 (1^st Cir. 1995).

The case is Estate of Tomlinson v. Houston Healthcare, ___ S.E.2d ___, 2024 WL 3768594 (August 13, 2024).