We recently wrote about the Georgia state case Johnson et al. v. Omondi et al., in which plaintiffs filed medical malpractice and wrongful death claims arising out of treatment their son received in a hospital emergency room (“ER”). Plaintiffs brought their son to the ER after he complained of pain on the left side of his chest that was worse in a recumbent position. Two weeks after being discharged, he died from a bilateral pulmonary embolism. The case was resolved in defendants’ favor when the Court of Appeals affirmed summary judgment, holding that plaintiffs had presented insufficient evidence that defendants committed gross negligence. The Court applied Georgia’s emergency care statute, O.C.G.A. § 51-1-29.5.

Earlier this week, plaintiffs petitioned the Georgia Supreme Court to review the constitutionality of applying the statute to their case. They noted in their petition that although the Supreme Court “upheld the statute against facial constitutional challenges in Gliemmo v. Cousineau, 287 Ga. 7 (2010), it has never reviewed an actual application of the statute.” The petition requests the Court to clarify a number of aspects regarding the statute, including the definition of “gross negligence” as used by the statute, the use of expert witness testimony in meeting the gross negligence standard, and how the statute’s “clear and convincing evidence” standard relates to the summary judgment standard of O.C.G.A. § 9-11-56.