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Nursing law case on point.

Georgia Supreme Court Affirmed 'Gross Negligence' Standard.

CASE ON POINT: Gliemmo v. Cousineau, SO9A1807 (3/15/2010) So.2d -GA

ISSUE: Is it constitutional to require a finding of gross negligence before certain nurses and physicians can be held liable for their errors?

CASE FACTS: Carol and Robert Gliemmo brought a medical malpractice suit against Dr. Mark Cousineau, Emergency Medical Specialists of Columbus, PC., and St. Francis Hospital, Inc., (Appellees). After the Appellees answered the Appellants' complaint, Appellants filed a challenge to the constitutionality of the Georgia Law which provides: 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 beheld liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence. The trial court rejected the constitutional challenge, but issued a certificate of immediate review. The Appellants applied for an interlocutory review, and the Supreme court of Georgia granted the application to consider the constitutionality of the statute in question. The Appellants filed a timely notice of appeal. The Appellants contended that the law in question was a special law that violated the uniformity clause of the Georgia Constitution because it set forth a gross negligence standard of liability only for certain emergency care providers. The uniformity clause provides: Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws. Thus, the Appellants contended that: "[T]o violate [this] constitutional provision, the statute in question must either be a general law which lacks uniform operation throughout the state or a special law for which provision has been made by existing general law." Several Georgia cases were cited. Among them was Terrell County v. Albany Hosp. Auth., 256 Ga. 627, 630 (6) (352 S.E.2d 378) (1987), in which the court stated in pertinent part that there is no civil liability thereunder unless a physician, nurse,... has been grossly negligent in the provision of such services. ..." However, the lower courts held that provision was enacted as part of the legislation that was expressly found not to be a special law.

COURT'S OPINION: The Supreme Court of Georgia affirmed the judgment of the lower court, finding that the statute was, in fact, constitutional. The court held, inter alia, that the Appellants misconstrued the holding of the court in Terrell County, and that the case expressly held that an attack on the Hospital Care for Pregnant Women Act as special legislation must fail because that Act, like the statute in the case at bar, operated uniformly throughout the state and did not make an arbitrary or unreasonable classification. Accordingly, the court concluded that the statute was not a special law, stating: "our State Constitution only requires a law to have uniform operation; and that means that it shall apply to all persons, matters, or things which it is intended to affect. If it operates alike on all who come within the scope of its provisions, constitutional uniformity is secured. Uniformity does not mean universality. This constitutional provision is complied with when the law operates uniformly upon all persons who are brought within the relations and circumstances provided by it."

LEGAL COMMENTARY: A vigorous dissenting opinion was written. The Chief Justice and one other justice also dissented. The major premise of the dissent was that the Georgia Constitution prohibits the General Assembly from enacting a "local or special law ... in any case for which provision has been made by an existing. ... law. ..." The dissenting opinion found that the broad objective of the constitutional provision is "to insure that once the legislature entered a field by enacting a general law, that field must thereafter be reserved exclusively to general legislation and could not be open to special or local laws." The dissent defined a "special law" as one which "affects a limited area or class." It went on to observed that while the state constitution does not prohibit special laws per se, the legislature cannot enact special laws affecting special classes, "if it has previously legislated in that area by general law, nor may it do so if the classification of those affected is unreasonable." The dissent concluded that the law enacted in 2005, affected a limited class of health care providers, with that limited class defined by what health care they provided and/or where they provide it, which the dissent found to be unconstitutional. Nurses in all states should be wary that they are not led, or misled, into believing that they are protected by such legislation, which might, in some states, be declared to be unconstitutional. All nurses should have their own professional liability insurance. In fact, nurses should never practice nursing without having their own professional liability insurance!
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Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:Mar 1, 2010
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