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Next Week at the Court

May 8, 2015

On Monday and Tuesday, the Supreme Court of Georgia will hear oral argument in nine cases, four of which appear to be within the scope of our coverage. The Court will also issue opinions, and we will summarize them after they have been released. Summaries of the pertinent cases to be argued are below.

Monday, May 11, 2015, 10:00 am sitting

S15G0621 Nguyen v. Southwestern Emergency Physicians, P.C., et al.

This case is a medical malpractice claim directed at emergency medical providers by the parents of a child who suffered brain damage. After a six-month old baby fell off a bed, her mother took her to the emergency room. There, a physician’s assistant diagnosed a “minor injury” consisting of a “scalp contusion” without consulting a physician or ordering radiology studies. Several days later, however, on a return visit, the injury was identified as a large subdural hematoma.

The trial court granted Nguyen’s motion for partial summary judgment, holding that the physician’s assistant did not provide medical emergency care. OCGA § 51-1-29.5 establishes that claims arising from the provision of “bona-fide emergency services” provided in a “hospital emergency department” must be “proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” Under the trial court’s ruling, Nyugen’s claims would be evaluated under an ordinary negligence standard.

The Court of Appeals unanimously reversed, holding that whether the medical providers provided “emergency medical care” presented a question of fact. Pointing to the Supreme Court of Georgia’s decision in Abdel-Samed v. Dailey, 294 Ga. 758, 755 S.E. 2d 805 (2014), the Court of Appeals observed that actual or genuine examination and diagnosis in an emergency room setting could constitute emergency medical care even if the diagnosis was incorrect. At the very least, it was up to a jury to consider the circumstances reflecting the emergency and the delivery of care.

S15G0321 Foster v. Georgia Regional Transportation Authority

This case arises from Foster’s fall on a commuter bus owned and operated by the Authority. She contends that the driver accelerated unexpectedly. The accident occurred on August 16, 2011, Foster provided ante litem notice of her intent to file suit on February 10, 2012, and she filed suit on September 18, 2013.

OCGA § 50-2-27 establishes a two-year statute of limitations for tort actions against state government entities. OCGA § 36-33-5 allows for the tolling of the statute of limitations for claims against local government entities, like municipalities, while the claim for payment is pending.

The trial court denied the Authority’s motion for judgment on the pleadings which was based on the contention that the statute of limitations was not tolled, but ran in August 2013, two years after the accident. The Court of Appeals reversed, holding that the Georgia Tort Claims Act “allows for the application of tolling provisions found elsewhere in the [Georgia] Code to the GTCA only if those tolling provisions can be harmonized with the express purposes of the GTCA.” (emphasis in original) Because State entities do not have to respond to ante litem notices and municipalities do, the court concluded that it could not impose a duty of response on the State. “Rather, the GTCA squarely places the burden on the complainant to timely file suit within the limitation period, even though a notice of claim remains pending.”

15A0816 Borders, et al. v. City of Atlanta, et al.

This case involves a class action filed by firefighters and employees of the City of Atlanta over changes to their pension programs. In June 2011, the City increased the contributions required from the firefighters and employees to their pension plans from those required when they signed up. The plaintiffs contend that the change unconstitutionally impairs their contracts in violation of the Georgia Constitution. The trial court rejected those claims and ruled in favor of the City. In addition, the trial court denied a motion for new trial based on a 2009 letter in which then-Mayor Shirley Franklin told the President of the City Council, “As you will recall from previous discussions on pensions, the City cannot legally decrease the benefits provide [sic] to current City employees.”

Monday, May 11, 2015, 2:00 pm sitting

S15A0833 Cochran v. Kendrick, et al.

This case involves a claim of racial discrimination by a white woman arising from the termination of her job by the Tax Commissioner of Augusta-Richmond County. In 2010, the Tax Commissioner, who is African-American, reorganized the office eliminating ten positions, creating three new ones, and restructuring eight others. In particular, he consolidated Cochran’s job of Director of Motor Vehicles and the Deputy Director of Motor Vehicles into a single position of Division Manager of Motor Vehicles. That new position required a Bachelor’s Degree in business, accounting, or a related field.

Cochran did not have such a degree, and her former deputy, who is African-American, had a college education. The African-American candidate got the new job, and Cochran filed suit. She contended that the elimination of her position violated the applicable procedures and that her termination “was motivated by racial prejudice.” The trial court granted Kendrick’s motion for summary judgment, concluding that Kendrick was immune from suit and that there was insufficient evidence of racial motivation in the decision to terminate Cochran’s employment.

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