Gross Negligence in OB Cases – Georgia Supreme Court Confirms Weathington’s Groundbreaking Victory

  • Jul 7 2021

On July 7, 2021, the Georgia Supreme Court denied certiorari in Brown v. OB-GYN Associates, 359 Ga. App. 655 (2020), finalizing the Court of Appeals’ groundbreaking ruling that malpractice suits involving medical emergencies occurring in obstetrical units are subject to a gross negligence standard. Weathington’s appellate team, led by David Hanson along with Zach Fuller, successfully argued that the plain language of the so-called “ER Statute” was not just limited to emergency room lawsuits, but also included medical emergencies arising in the obstetrical unit.

“This ruling is a game changer for obstetricians across the state of Georgia” said Paul Weathington. “Birth trauma cases are the primary lawsuit threat faced by Georgia’s obstetricians and this ruling significantly raises the threshold for any Plaintiff considering filing suit against an OB/GYN. David and Zach did an outstanding job identifying this issue, shepherding this case through the appellate process, and ultimately achieving a massive victory not only for our client, but all obstetricians in Georgia.”

The Georgia Legislature enacted O.C.G.A. 51-1-29.5 as part of Georgia’s tort reform package in 2005, extending a gross negligence standard to medical emergencies occurring 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.” O.C.G.A. 51-1-29.5(c). For over a decade following passage, the bench and bar colloquially referred to the statute as the “ER statute” with an implicit assumption that it only applied in emergency room cases. Several years ago, Weathington attorneys identified the potential to extend the protections to the obstetrical unit even in cases where the patient never came through the emergency room.

After evaluating numerous pending birth trauma cases at the firm, David and Zach identified the Brown case as the perfect vehicle to challenge the conventional wisdom on the “ER Statute” and argue for its extension to the obstetrical unit. On October 23, 2020, the Court of Appeals agreed, issuing their original opinion holding that (1) the gross negligence standard applies in the obstetrical unit even if the patient never went to the ER and (2) that a shoulder dystocia is the type of classic medical emergency intended to be covered by the statute. By denying certiorari on July 7, 2021, the Supreme Court confirmed that this ruling will be the binding law throughout Georgia.

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