Suppose a two-year old gets into the babysitter’s methadone, but at least the babysitter manages to rush the child to the emergency room. The emergency-room doctor observes the child for a few hours, then sends the child home; the child soon stops breathing, is brought back to the hospital and dies. These are the essential facts of Adrian Christian’s last hours. Who is responsible for this child’s death?
The law of this situation has some complexities that vary from state-to-state, but generally speaking, the negligent doctor’s action is deemed an independent intervening cause. An independent intervening cause is a separate act or omission that breaks the direct connection between a tortfeasor’s actions and an injury to another person. In this case, the doctor’s negligence in sending Adrian home while he was still suffering methadone poisoning is an independent intervening cause that breaks the connection of the babysitter’s negligence who negligently allowed Adrian to get into her methadone. In this set of circumstances, the law allows the victim to sue either the babysitter or the doctor or both. A Birmingham Alabama jury just awarded Adrian’s mother $2.4 million to be paid by the doctor or his insurer.
Let’s change one fact: Suppose Adrian lived in Atlanta instead of Birmingham but otherwise everything happened the exact same way. Unfortunately for Adrian’s mother, she probably would have had a hard time finding an attorney to represent her. If she managed to find a lawyer, the judge would probably have thrown the case out before it went to the jury. If the case somehow had gotten to the jury, the doctor would almost certainly have been found to have no liability.
Is the law so crazy that the same facts result in a large verdict in Birmingham and a boot in the pants in Atlanta? You bet it is.
In 2005, the Georgia legislature whooped through a tort-reform package, called SB3, that was supposed to solve the state’s so-called malpractice crises. Medical malpractice reform was suppose to help beleaguered doctors who were supposedly being crushed by out-of-sight insurance premiums. Now that the facts are in, however, you don’t hear much about this crisis any more. Why? Malpractice-insurance premiums never went down, far fewer medical malpractice lawsuits were filed, i.e., fewer victims were compensated for their injuries, and malpractice-insurance-company profits soared. The only people who couldn’t foresee this outcome for SB3 in 2005 were Georgia physicians.
One of the major elements of SB3, which has survived a Supreme Court challenge, is a special standard of care for Georgia emergency-room physicians. To hold a Georgia emergency-room physician liable for medical malpractice, a victim must prove gross negligence by clear and convincing evidence. To hold any other Georgia physician liable under identical facts requires only ordinary negligence proved by a preponderance of the evidence. Some observers believe this absurdity was put into Georgia law because rural hospital administrators complained that their hospitals could very well go under unless the legislature ran interference for their incompetent emergency-room doctors. It is, after all, difficult to find doctors to cover these emergency rooms and administrators take what they can get — patients be damned.
I don’t know how many other states, if any, have enacted rural hospital administrator job-security acts like SB3, but Alabama has certainly not. Obviously, no court can bring Adrian back, but at least the Alabama court compensated Adrian’s mother in the only way that a court can. In Georgia, Adrian’s mother wouldn’t get a dime.
6065 Roswell Rd.
Sandy Springs, GA 30328
Phone: (404) 255-3282