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Albany wrongful death suit to proceed

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ALBANY, GA (WALB) -

With information from the Supreme Court of Georgia-

The Supreme Court of Georgia has ruled that a lawsuit stemming from the 2007 death of a young Albany football player may move forward.

 In the case of Johnson et al. V. Omondi et al. (s13g0553), the Supreme Court of Georgia has reversed a Georgia Court of Appeals decision and ruled in favor of 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 and Sheldon Johnson sued Dr. Price Paul Omondi, an emergency room physician, for medical malpractice.

At issue in the Dougherty County case is whether the physician acted with "gross negligence," and the case should be tried by a jury.

With the unanimous decision by the high court, the case can now proceed to jury trial.

The Supreme Court of Georgia provided this release-

According to the record, on Dec. 29, 2007, Thelma Johnson took Shaquille to the emergency room at Phoebe Putney Memorial Hospital. Eight days earlier, Shaquille had undergone arthroscopic knee surgery to repair a football injury.

At the hospital, Shaquille complained of pain on the left side of his chest that was worse when he took a deep breath or was lying down. Omondi spent several minutes in the exam room with Shaquille and his mother, asking what brought them to the E.R., examining the boy, and ordering a chest x-ray and an 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. He also interpreted the EKG and determined it was normal, ruling out heart rhythm disturbances, heart attack, and pericarditis. Omondi specifically testified that the EKG did not suggest that a pulmonary embolism was the cause of Shaquille's pain. Omondi noted that Shaquille also did not have shortness of breath, had normal vital signs, and had perfect pulse "oximetry," which measures oxygenation of the blood, according to briefs filed in the case.

Omondi said that because 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 Shaquille's lungs. He determined that Shaquille was suffering from pleurisy and prescribed Naprosyn for pain before discharging the boy. Two weeks later, on January 13, 2008, Shaquille complained of chest pain and difficulty breathing. He was transported by ambulance to the hospital, where he died from a bilateral pulmonary embolism, i.e. he had blood clots in both lungs.

The Johnsons sued Omondi and Southwest Emergency Physicians, P.C., for medical malpractice, claiming that the care and treatment their son received Dec. 29 deviated from the proper standard of care and caused his death. The Johnsons presented affidavits and deposition testimony from two emergency medicine specialists who stated that 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 Omondi's favor by granting him "summary judgment."

(A judge grants summary judgment when he 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 (Official Code of Georgia § 51-1-29.5), 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 that 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 (1) a higher evidentiary standard (clear and convincing evidence), and (2) a lower standard of care (gross negligence.)"

The Court of Appeals ruled that for this 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 Johnsons then appealed to the state Supreme Court.

In today's opinion, the high court concludes: "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."

The opinion states 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."

This 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.

"Accordingly, on his motion for summary judgment, Dr. Omondi was required to show that there was no genuine issue of material fact, and that a reasonable jury would be unable to find, by clear and convincing evidence, that he was grossly negligent. This he cannot do."

In his own testimony, Omondi said he recognized the potential for pulmonary embolism but he ruled it out due to Shaquille's age, vital signs and his favorable response to Toradol, which would not have eliminated the symptoms of pulmonary embolism.

However, the opinion points out, 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…." Specifically, "to exclude pulmonary embolism from his diagnosis, the standard of care required Dr. Omondi to administer a CT scan, or a lung scan, which he did not do."

"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.'"

In a 15-page concurrence, Justice Keith Blackwell writes that he agrees with the opinion, but he emphasizes that the application of the "gross negligence" standard is different in medical malpractice cases than in other types of 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," Justice 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."

As the Johnsons said in their lawsuit, liability can be established under § 51-1-29.5 "where the evidence of record, including the admissible testimony of qualified experts, would permit a reasonable jury to find by clear and convincing evidence that the defendant caused harm by grossly deviating from the applicable medical standard of care," the concurrence says.  

Attorneys for Appellants (Johnsons): Leighton Moore, Darren Summerville, Roderick Edmond, Keith Lindsay

Attorneys for Appellees (Omondi): R. Page Powell, Jr., Jeffrey Braintwain