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BABY'S DEATH HIGHLIGHTS INJUSTICE OF GEORGIA TORT REFORM


Posted on Jun 09, 2006

BABY'S DEATH HIGHLIGHTS INJUSTICE OF GEORGIA TORT REFORM: ER Negligence May Not be Accountable Atlanta, GA. -- On September 19, 2005 Christian Stratton, a 5 month old bubbly baby boy, awoke at 6:00 AM to his mother’s loving smile. Just 12 hours later at 6:00 PM, Christian was strapped to a gurney in a helicopter, comatose, with a breathing tube, being life-flighted to a local high-level hospital for children. He was brain-dead. Two days later he died 20 minutes after life-support was withdrawn. That morning Christian fell and injured his neck. An emergency room (ER) doctor missed his neck injury, and, as result, Christian died 2 days later. Under new Georgia tort reform laws, it may be difficult for Christian’s parents to hold the ER doctor accountable for Christian’s death. New Georgia tort reform laws require victims of emergency room negligence to prove “gross negligence” by a “clear and convincing” degree, instead of proving “negligence” by a “preponderance of the evidence” as is the case in all other cases of medical malpractice…a much lower requirement. Doctors at the emergency room where Christian was examined after his fall failed to “clear” his cervical spine. That failure to diagnose the cervical injury caused his death. The morning of September 19, 2005 Christian’s father drove him to his day care. An eye-witness saw the fall. With the baby bag on one shoulder, the baby in that arm and while reaching for the baby car seat, Christian wriggled and slipped out of his dad’s arm. The baby struck his head on the bottom door frame and then his head hit the pavement. Immediately after the fall, the baby began to vigorously cry, which prompted his dad to take him to the emergency room at Emory Eastside Medical Center in Snellville, GA. At the emergency room, Christian’s father told the nurses and the doctor, Dr. Kamlesh S. Gandhi, the details of Christian’s fall. The doctor examined Christian and noted a bruise and swelling on the back of his head. The doctor even did a head CT scan to rule out a skull fracture or bleeding on the brain. But, there were two basic things that the doctor did not do…secure the baby’s neck with a collar and make sure that there was no injury to his cervical spine. Christian was released from the ER at 12:00 PM. Christian’s dad took him home. At about 4:30 PM Christian had been napping for about 2 hours. When his dad went to check on him, the baby was limp, cold, blue and wasn’t breathing. Frantically, the dad immediately started CPR and called 911. EMS arrived, continued CPR, put a cervical collar on the baby’s neck and rushed Christian back to the Emory Eastside ER. Although Christian did not have a heart beat when EMS arrived, they were able to get his heart beating again. When Christian arrived via helicopter from Emory Eastside at the more advanced hospital, an x-ray of his neck showed that he had a large traumatic separation between the second and third bones of his cervical spine. The trauma from the fall that morning had pulled Christian’s neck and bruised his spinal cord. An autopsy revealed that subsequent swelling of his spinal cord caused decreased blood flow to the baby’s brain causing severe irreversible brain damage. When a patient who does not have the ability to communicate (i.e. unconscious, infants, intoxicated, demented, etc.) has a significant head injury, steps must be taken to make sure that the patient’s cervical spine has not been injured. The patient’s cervical spine must be “cleared” of injury, meaning that a cervical collar must be applied and x-rays must be taken looking for neck injury. Had the ER doctor from Christian’s first visit at Emory Eastside simply done what any reasonably competent doctor would have done…namely “clear” the cervical spine, the cervical and spinal injuries would have been diagnosed. Christian would have been admitted to the hospital, and any complications from the injury would have been properly treated in the hospital. Christian would not have died. In February 2005 the governor of Georgia signed into law a comprehensive “tort reform” bill aimed at relieving doctors and hospitals from the financial consequences of malpractice suits. Among other things, the law puts caps on the amount of damages for victims of medical negligence, allows doctors to move malpractice cases to their home counties, penalizes victims who win at trial but who refused to settle, and insulates ER doctors from suit. Georgia law 51-1-29.5 (c) states the following: “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 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 “gross negligence” and “clear and convincing” requirement for victims of ER negligence is a much higher burden of proof than required for other victims of medical negligence. This ER gross negligence requirement risks creating a lower quality of health care due to ER doctors not having to meet the same standards as other doctors. The practical consequence of the new law is that in Georgia practically all ER doctors can commit negligence resulting in death and catastrophic injury without any accountability to their victims or their families. Today, Roderick Edmond and Craig Jones, attorneys for the parents of Christian Stratton, filed a medical malpractice suit in DeKalb County State Court against the Emory Eastside ER doctor who first treated Christian, Dr. Kamlesh S. Gandhi, and against his ER doctors’ group. Christian Stratton is dead, and Georgia law, to the financial benefit of doctors and insurance companies, may prevent his parents from getting any degree of accountability for their baby’s tragic and preventable death.

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