Georgia court finds emergency department physician not "grossly negligent" in malpractice lawsuit

The Georgia Court of Appeals held September 4 that an emergency room physician was entitled to summary judgment in a medical malpractice action because the plaintiff could not show the physician was "grossly negligent" as required under the relevant statute.

This material originally appeared in the September 19, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (

The Georgia Court of Appeals held September 4 that an emergency room physician was entitled to summary judgment in a medical malpractice action because the plaintiff could not show the physician was “grossly negligent” as required under the relevant statute.

Plaintiff Marshall Lee Smith was taken to the Floyd Medical Center emergency room after sustaining injuries in a motorcycle crash.

He was treated there by Jill Pottinger, MD, an emergency room physician, who performed various tests for internal injury, including a cranial CT scan, spinal x-rays, and x-rays of the tibia and fibula in Smith’s left leg.

The x-rays were read by Joseph Burch, MD, a radiologist, who found “a minimally displaced fracture of the left fibular head” and “no other fracture or subluxation.”

According to Pottinger, because the fracture found by the radiologist was not to a weight-bearing bone, no consult with an orthopedic surgeon was required in the emergency room, and she did not request one.

After discharge, Smith continued to experience severe pain in his leg and he eventually saw an orthopedic surgeon. The orthopedic surgeon examined the x-rays taken at the emergency room and found not only the fibular fracture, but an additional serious fracture that required surgery to correct.

Smith sued Pottinger, Burch, Floyd Medical Center and others for medical malpractice.

The affidavit of Smith’s physician expert stated that (based on review of the certified medical records) all three physicians acted below the standard of care.

Pottinger moved for summary judgment under Ga. Code Ann. § 51-1-29.5, which provides that “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 trial court denied the motion and Pottinger appealed.

On appeal, Pottinger argued she met the standard of care, pointing to evidence that she immediately ordered x-rays on Smith’s injured leg; that the x-rays were read by a radiologist; that she relied on the radiologist’s finding that the x-rays did not show a serious fracture, and that, based on this finding, there was no need for an orthopedic surgeon to consult in the emergency room about Smith’s leg injury.

The appeals court agreed. “Even assuming there was evidence sufficient to create a jury issue as to whether Pottinger’s actions were negligent, there is no evidence, and certainly no clear and convincing evidence, by which a jury could reasonably conclude that Pottinger failed to exercise even slight care and was therefore grossly negligent,” the appeals court held.

Pottinger v. Smith, No. A08A1461 (Ga. Ct. App. Sept. 4, 2008).