A Kenyan doctor Malpractice case opinion reversed by Georgia Supreme Court


The Supreme Court of Georgia has reversed a Georgia Court of Appeals decision and ruled in favor of the parents of a teenage boy who died in Albany two weeks after he was treated in a hospital emergency room.

Following the death of their 15-year-old son, Shaquille, Thelma Johnson and Sheldon Johnson sued Dr. Price Paul Omondi, an emergency room physician, for medical malpractice. At issue in the case was whether Omondi acted with “gross negligence” and if it should be tried by a jury.

With Thursday’s unanimous decision, written by Presiding Justice P. Harris Hines, the case may now proceed to jury trial.

According to court records, on Dec. 29, 2007, Thelma Johnson took Shaquille to the emergency room at Phoebe Putney Memorial Hospital eight days following arthroscopic knee surgery to repair a football injury. Shaquille complained of pain on the left side of his chest that worsened when he took a deep breath or was lying down. Omondi spent several minutes in the exam room with Shaquille and his mother while examining the boy and ordered a chest X-ray and electrocardiogram (EKG).

Omondi testified at his deposition that he reviewed the triage nurse’s record and findings, inquired about past medical history and family history, including any past diagnoses of pulmonary embolism or pneumonia, and was aware of Shaquille’s recent knee surgery and chief complaint. Omondi examined the X-ray and found no evidence of an enlarged heart, pneumothorax, pneumonia or skeletal injury, court documents show.

The court said he also interpreted the EKG and determined it was normal, ruling out heart rhythm disturbances, heart attack and pericarditis. Court records say Omondi specifically testified the EKG did not suggest a pulmonary embolism was the cause of the boy’s pain. He also noted Shaquille did not have shortness of breath, had normal vital signs and had perfect pulse “oximetry,” briefs filed in the case state. Omondi further said, since the Toradol he prescribed completely resolved Shaquille’s pain, and because Toradol would not treat pain from a pulmonary embolism, he concluded this was further proof there was no blood clot in the teen’s lungs. Court documents say the physician determined he was suffering from pleurisy and prescribed Naprosyn for pain before discharging him.

On Jan. 13, 2008, Shaquille complained of chest pain and difficulty breathing. He was transported by ambulance to Phoebe, where he died from a bilateral pulmonary embolism.

The Johnsons sued Omondi and Southwest Emergency Physicians, P.C. for medical malpractice, claiming the care and treatment their son received at the initial hospital visit deviated from the proper standard of care, causing his death. They presented affidavits and deposition testimony from two emergency medicine specialists who stated Shaquille’s symptoms and history constituted a “classic” presentation of pulmonary embolism and Omondi failed to order the tests that would have uncovered it.

The trial court ruled in the doctor’s favor by granting him “summary judgment.”

A summary judgment is issued when a judge determines a jury trial is unnecessary because the facts of the case are undisputed and the law falls squarely on the side of one of the parties. In this case, the trial court relied on Georgia’s emergency medical care statute, which states that in “an action involving a health care liability claim arising out of the provision of emergency medical care 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.” The Court of Appeals upheld the lower court’s ruling, finding the statute “clearly distinguishes the actions of emergency department physicians from other healthcare providers in negligence cases, including medical malpractice cases not involving emergency department care, by mandating a higher evidentiary standard and a lower standard of care.”

The Court of Appeals ruled, that for the case to be tried by a jury, the Johnsons “must demonstrate that a genuine issue of material fact existed not as to whether Omondi exercised ordinary care … but rather, they must show the existence of ‘clear and convincing’ evidence that Omondi did not exercise even slight care.” The case was then appealed to the state Supreme Court.

In Thursday’s opinion, the high court concluded “It was error for the trial court to grant Dr. Omondi’s motion for summary judgment, and the judgment of the Court of Appeals affirming that decision must be reversed” and that “this is one of those cases in which the General Assembly has placed a higher evidentiary burden on plaintiffs such as the Johnsons, namely, that any departure from accepted standards of medical care must be shown, by clear and convincing evidence, to be gross negligence.”

The state’s highest court has previously defined gross negligence as “the absence of even slight diligence, and slight diligence is defined … as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of the diligence that even careless men are accustomed to exercise,” the opinion says.

On his motion for summary judgment, Omondi was required to show there was no genuine issue of material fact, and a reasonable jury would be unable to find, by clear and convincing evidence, that he was grossly negligent, which he has been unable to do, court officials say. In his own testimony, he said he recognized the potential for pulmonary embolism but ruled it out due to the patient’s age, vital signs and favorable response to Toradol. However, the opinion states, the Johnsons submitted expert testimony that Omondi’s actions “did not meet the standard of care,” and “he did not take action that would be appropriate to exclude pulmonary embolism …” — which would have included the administration of a computed tomography scan, or a lung scan.

“Given this evidence, a reasonable jury could find, by clear and convincing evidence, that in addressing Shaquille’s symptoms, Dr. Omondi acted with gross negligence, i.e., that he lacked ‘the diligence that even careless men are accustomed to exercise,’” the opinion states.

In a concurrence, Justice Keith Blackwell wrote that he agrees with the opinion, but he emphasizes the application of the “gross negligence” standard differs in medical malpractice cases.

“For medical malpractice cases, we need another definition of ‘gross negligence,’ one that accounts for the generally accepted standards of medical care in the medical profession. The practice of medicine requires years of professional training and specialized education, and most ordinary citizens do not practice medicine — or even observe its practice — as a part of their daily routines,” Blackwell writes in his concurrence, which is joined by Justice David Nahmias. “Judges, lawyers and jurors usually need help to assess the fault of a physician.”


Albany Herlad



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