05 LC
14 9018
House
Bill 233
By:
Representatives O`Neal of the
146th,
Keen of the
179th,
Burkhalter of the
50th,
Fleming of the
117th,
Cooper of the
41st,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 51 of the Official Code of Georgia Annotated, relating to torts, so
as to change provisions relating to establishment of liability and standard of
care in claims arising out of the provision of emergency medical care; to
provide for other related matters; to provide for an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
51 of the Official Code of Georgia Annotated, relating to torts, is amended by
adding after Code Section 51-1-29.4 a new Code Section 51-1-29.5 to read as
follows:
"51-1-29.5.
(a)
As used in this Code section, the term:
(1)
'Affiliate' means a person who, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with a
specified person, including any direct or indirect parent or
subsidiary.
(2)
'Claimant' means a person, including a
decedent́s
estate, who seeks or has sought recovery of damages in a health care liability
claim. All persons claiming to have sustained damages as the result of the
bodily injury or death of a single person are considered a single
claimant.
(3)
'Control' means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of the person, whether
through ownership of equity or securities, by contract, or
otherwise.
(4)
'Court' means any federal or state court.
(5)
'Emergency medical care' means bona fide emergency services provided after the
onset of a medical or traumatic condition manifesting itself by acute symptoms
of sufficient severity, including severe pain, such that the absence of
immediate medical attention could reasonably be expected to result in placing
the
patient́s
health in serious jeopardy, serious impairment to bodily functions, or serious
dysfunction of any bodily organ or part. The term does not include medical care
or treatment that occurs after the patient is stabilized and is capable of
receiving medical treatment as a nonemergency patient or care that is unrelated
to the original medical emergency.
(6)
'Emergency medical services provider' means any person providing emergency
medical care.
(7)
'Health care' means any act or treatment performed or furnished, or that should
have been performed or furnished, by any health care provider for, to, or on
behalf of a patient during the
patient́s
medical care, treatment, or confinement.
(8)
'Health care institution' means:
(A)
An ambulatory surgical center;
(B)
A personal care home licensed under Chapter 7 of Title 31;
(C)
An institution providing emergency medical services;
(D)
A hospice;
(E)
A hospital;
(F)
A hospital system;
(G)
An intermediate care facility for the mentally retarded; or
(H)
A nursing home.
(9)
'Health care liability claim' means a cause of action against a health care
provider or physician for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, health care, or safety or
professional or administrative services directly related to health care, which
departure from standards proximately results in injury to or death of a
claimant.
(10)
'Health care provider' means:
(A)
Any person, partnership, professional association, corporation, facility, or
institution duly licensed, certified, registered, or chartered by the State of
Georgia to provide health care, including but not limited to:
(i)
A registered nurse;
(ii)
A dentist;
(iii)
A podiatrist;
(iv)
A pharmacist;
(v)
A chiropractor;
(vi)
An optometrist; or
(vii)
A health care institution; and
(B)
Any person who is:
(i)
An officer, director, shareholder, member, partner, manager, owner, or affiliate
of a health care provider or physician; or
(ii)
An employee, independent contractor, or agent of a health care provider or
physician acting in the course and scope of the employment or contractual
relationship.
(11)
'Hospice' means a facility licensed as such under the 'Georgia Hospice Law,'
Article 9 of Chapter 7 of Title 31.
(12)
'Hospital' means a facility licensed as such under Chapter 7 of Title
31.
(13)
'Hospital system' means a system of hospitals located in this state that are
under the common governance or control of a corporate parent.
(14)
'Medical care' means any act defined as the practice of medicine under Code
Section 43-34-20.
(15)
'Nursing home' means a facility licensed as such under Chapter 7 of Title
31.
(16)
'Pharmacist' means a person licensed as such under Chapter 4 of Title
26.
(17)
'Physician' means an individual licensed to practice medicine in this state, a
professional association organized by an individual physician or group of
physicians, or a partnership or limited liability partnership formed by a group
of physicians.
(18)
'Professional or administrative services' means those duties or services that a
physician or health care provider is required to provide as a condition of
maintaining the
physiciańs
or health care
provideŕs
license, accreditation status, or certification to participate in state or
federal health care programs.
(b)
Any legal term or word of art used in this chapter, not otherwise defined in
this chapter, shall have such meaning as is consistent with the common
law.
(c)
In an action involving a health care liability claim arising out of the
provision of emergency medical care 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, 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
provideŕs
actions showed willful or wanton misconduct.
(d)
In an action involving a health liability claim arising out of the provision of
emergency medical care 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, the court shall instruct the jury to
consider, together with all other relevant matters:
(1)
Whether the person providing care did or did not have the
patient́s
medical history or was able or unable to obtain a full medical history,
including the knowledge of preexisting medical conditions, allergies, and
medications;
(2)
The presence or lack of a preexisting physician-patient relationship or health
care provider-patient relationship;
(3)
The circumstances constituting the emergency; and
(4)
The circumstances surrounding the delivery of the emergency medical
care."
SECTION
2.
This
Act shall become effective July 1, 2005, and shall apply with respect to causes
of action arising on or after that date. Prior causes of action shall be
governed by prior law.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.