New Case Clarifies Emergency Room Standard in Georgia: What Level of Care are Patients Entitled To?

If you or a family member go to an Emergency Room in Georgia, what level of care do you expect to receive?  Some lawyers for doctors and hospitals say that you are only entitled to receive something called “slight care” which is lower than the historical standard of “ordinary care” or reasonable care” that we’ve operated under for many years in Georgia medical malpractice cases.

This lowering of the standard of care was done without a lot of public participation, and my guess is that most folks who go to the E.R.- or take their children or family members there – expect to receive a reasonable level of care.  Nonetheless, in 2005 a new law was passed in Georgia that attempted to lower the standard of care to the level of “slight care” in ERs, at least in some circumstances.  The truth of the matter is that this is a terrible law, and puts our families at greater risk when we go to ERs.  Seems to me that we deserve better care than that.

The law in question generally says that the “slight care” standard – also known as “gross negligence” ( a doctor is grossly negligent when he does not use slight care, these are two sides of the same coin) – only applies to patients who are not stable.  The idea seems to be that if a patient is stable, then that patient is entitled to the same care they would get if they went to a regular doctor’s office or received other types of medical care in a non-emergency situation.  In other words, emergency room doctors should only get the benefit of this low standard of care when there is a real emergency and little time for reflection or for getting a complete history of the patient.

But few cases had addressed this issue of stability.  A new case has done that and made it clear that a jury will often have to decide if a patient is stable, thus triggering application of the ordinary negligence standard.  In Bonds v. Nesbitt, 13 FCDR 1342, Case Number A13A0348the Court made this rather clear:

The statute provides that a doctor’s conduct becomes subject to the more rigorous ordinary negligence standard of care rather than the gross negligence standard when the patient’s condition improves, or at least stabilizes. In other words, the statute provides that the condition of the patient controls, not the opinion of the physician. If a physician or health care provider mistakenly concludes that a patient has become “stabilized” and “capable of receiving medical treatment as a nonemergency patient” and therefore stops providing emergency care to that patient—notwithstanding that the patient still needs emergency care—and if the patient is injured or killed as a result of the withdrawal of emergency care, the physician or health care provider is entitled to claim the protection of the gross negligence standard.

The Court went on to say that in the context of the  factual circumstances of the Bonds’s case “that claim must be made to the jury.”  This case is very important because it pays close attention to the actual words of the statute, and clarifies that the issue of stability is an issue to be determined by the jury, at least in cases where there are facts in dispute about it.

Supreme Court Closes Courthouse Doors to Patients Harmed by Generic Drugs

Karen Bartlett took a generic drug called sulindac that her doctor prescribed to her for shoulder pain.  About three weeks later,  her skin began to peel off due to a reaction to the drug.  She is now left with burn-like lesions over two-thirds of her body and she is nearly blind.   She spent months in a burn unit in a medically induced coma.  Her burn doctor described her condition as “hell on earth.”   She cannot read or drive or work, and she will likely lose all vision.  She sued the drug maker – Mutual Pharmaceuticals – and her case proceeded to trial and resulted in a New Hampshire jury returning a verdict of $21 million.  Many of us would applaud the good sense of a jury in returning this verdict to help this lady in such great need.  But the highest court in the land wasn’t so happy about Karen’s victory.

A majority of the United States Supreme Court reversed the jury’s verdict, leaving Karen with nothing.  Justice Sotomayor wrote a dissent that called the majority decision “frankly astonishing.”  Along with several other decisions from our highest Court, this decision prompted Andrew Cohen at the Atlantic to derisively refer to it as a “great day for corporations.”  The majority does seem to go out of its way – and well beyond the professed originalism of Scalia and others – to lend a helping hand to corporations.   Here’s a link to Andrew Cohen’s Atlantic article and a blog entry on the Pop Tort about the case.

But the majority’s loving embrace of corporations didn’t really surprise me – that is what the majority seems to do so often. It’s something else that frightens me:  this drug was allowed to be sold to patients despite evidence  – as reported in the Pop Tort’s blog post – that Mutual Pharmaceuticals knew that sulindac’s rate of life-threatening conditions was comparable to the rate for a drug that the FDA had recommended for removal from the market.  Why are drugs with these sorts of risks being sold to patients?  And why isn’t full information given to patients, at the very least?

One answer is provided in books like Overdosed America by Dr. John Abramson.  He shows that the research and approval process for drugs is often flawed, in large part because of the fact that much of the drug research is done by institutions or individuals with financial ties to the pharmaceutical industry.   Even many doctors unwittingly rely on studies that are flawed, as shown in his well-researched book.  With this sort of “fox guarding the hen house” situation, it is predictable that dangerous drugs will get FDA approval despite a lack of good research supporting their safety.  As corporate money continues to infiltrate universities and research groups, this situation get worse.  And it is magnified further when a majority of the Supreme Court moves in lockstep with corporate power.


John Stossel on Lawsuits: Good for Him, Bad for the Rest of Us?

John Stossel, host of “Stossel” on the Fox Business Network, likes to rant about lawsuits and lawyers.  Seems he hates both, unless he’s the one who’s doing the suing.  Stossel once interviewed wrestler Dave Schultz, and when Stossel told Schultz he thought it was all fake, Schultz slapped Stossel a couple times.  Stossel’s reaction?  Filed a lawsuit.  According to Eric Turkewitz’s blog entry about it, Stossel got a rather hefty settlement.

According to Turkewitz, Stossel is the same reporter who once said that organic produce was worse than conventional produce, a claim for which he had to apologize when it was revealed that his research was flawed.

So why has Stossel, who was once a consumer reporter, now become a shrill hater of lawsuits (except his own) and lawyers?  It’s one of oldest reasons:  money.  The Washington Post reported the following about Stossel’s switch:  “…back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, “I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”

Good reporters are wedded to truth and fact; In Stossel’s world, both take a backseat to money.  No wonder Stossel hates juries;  juries often hold dangerous corporations accountable for their actions when the truth is revealed in a courtroom.  He’d rather close the courthouse doors, for everyone but himself.