05 LC 14
9167S
The
Senate Judiciary Committee offered the following substitute to SB
232:
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 determination of the standard of care and
determination of whether that standard has been breached in deciding certain
actions relating to the provision of emergency medical services by a hospital or
health care provider; to define terms; to state findings; to provide for factors
to be considered and practice and procedure; to provide for related matters; to
provide for construction with respect to other Acts; 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 a new Code section immediately following Code Section 51-1-29.4, to be
designated Code Section 51-1-29.5 to read as follows:
"51-1-29.5.
(a)
As used in this Code section, the term:
(1)
'Dedicated emergency department' means any department or facility of the
hospital located on the main hospital campus that meets one of the following
requirements:
(A)
It is held out to the public, by name, posted signs, advertising, or other
means, as a place that provides care for emergency medical conditions on an
urgent basis without requiring a previously scheduled appointment;
or
(B)
During the calendar year immediately preceding the calendar year in which a
determination under this Code section is being made, based upon a representative
sample of patient visits that occurred during that calendar year, it provided at
least one-third of all of its outpatient visits for the treatment of emergency
medical conditions on an urgent basis without requiring a previously scheduled
appointment.
(2)
'Emergency medical condition' means:
(A)
A medical 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:
(i)
Placing the health of the individual, or, with respect to a pregnant woman, the
health of the woman or her unborn child, in serious jeopardy;
(ii)
Serious impairment to bodily functions; or
(iii)
Serious dysfunction of any bodily organ or part; or
(B)
With respect to a pregnant woman who is having contractions:
(i)
That there is inadequate time to effect a safe transfer to another hospital
before delivery; or
(ii)
That transfer may pose a threat to the health or safety of the woman or the
unborn child.
(3)
'Health care provider' means any person licensed under Chapter 9, 10A, 11, 11A,
26, 28, 30, 33, 34, 35, 39, or 44 of Title 43 who provides care or assistance to
an individual within the scope of such health care provider´s licensure,
either voluntarily or at the request of a hospital, including but not limited to
any health care provider who is 'on call' to a hospital.
(4)
'Hospital' means a facility which has a valid permit or provisional permit
issued by the Department of Human Resources under Chapter 7 of Title 31 and
which operates a dedicated emergency department that provides care or
assistance, including but not limited to emergency care, to individuals seeking
medical treatment. Such term shall also include any employee of such hospital
who provides care or assistance to such individuals within the scope of his or
her employment, whether or not such person is a health care
provider.
(b)
The General Assembly makes the following findings: Georgia hospitals operating
dedicated emergency departments are required by both state and federal law to
provide examination and treatment to individuals who come to a dedicated
emergency department, without regard to the financial or insurance status of
such individuals. Hospitals and other health care providers have complied with
these laws to their financial detriment and under the well-founded apprehension
of increased liability. Due in large part to fear of such liability, hospitals
are experiencing extreme difficulty attracting a sufficient number of physicians
and other health care professionals to maintain an effective team of
professionals, including on-call physicians, to provide needed care and
assistance to citizens of this state. As a result, many hospitals are being
forced to close their emergency departments or forgo other needed improvements
in order to financially support such emergency services and their attendant
liability. The shortage of these emergency providers poses a serious threat to
the health, welfare, and safety of the citizens of Georgia. Nevertheless, it is
also recognized that patients who have been injured by negligence must be
afforded appropriate access to legal remedies for their injuries. The General
Assembly therefore concludes that certain steps must be taken to preserve
Georgia citizens´ access to emergency care on the one hand, while on the
other hand providing appropriate remedies for patients who are negligently
injured.
(c)
Without waiving or affecting and cumulative of any existing immunity from any
source, unless it is established that injuries or death were caused by willful
or wanton misconduct, in deciding whether a hospital or health care provider
that renders care or assistance in or at the request of a hospital or a health
care provider to an individual who comes to a dedicated emergency department or
other facility provided by a health care provider for treatment of an emergency
medical condition, whether such care or assistance is rendered gratuitously or
for a fee, shall be held liable for damages to or for the benefit of any
claimant arising out of any act or omission in rendering such care or
assistance, the finder of fact must determine whether the hospital or health
care provider met the applicable standard of care for treatment of such patients
or conditions or both in an emergency department setting under similar
conditions and like surrounding circumstances. In making such a determination, a
jury shall be charged with the duty to consider all relevant circumstances that
the hospital or health care provider faced when treating the patient or
condition or both, including, but not limited to:
(1)
Whether the person providing care did or did not have the patient´s 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.
(d)
Notwithstanding any other law to the contrary, a cause of action alleging a
breach of the applicable standard of care by a hospital or health care provider
in the care and treatment of an emergency medical condition must be proven by
clear and convincing
evidence."
SECTION
2.
It
is the intention of the General Assembly that this Act control over any
conflicting provisions of any other Act enacted at the 2005 session of the
General Assembly. It is specifically the intention of the General Assembly that
the provisions of this Act control over any conflicting provisions of SB 3 from
the 2005 session of the General Assembly and that new Code Section 51-1-29.5 be
as provided in this Act rather than as provided in SB 3.
SECTION
3.
(a)
This Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
(b) Code Section 51-1-29.5, as enacted by this Act, shall apply only with respect to causes of action arising on or after the effective date of this Act, and any prior causes of action shall continue to be governed by prior law.
(b) Code Section 51-1-29.5, as enacted by this Act, shall apply only with respect to causes of action arising on or after the effective date of this Act, and any prior causes of action shall continue to be governed by prior law.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.