By Bill Rankin - The Atlanta Journal-Constitution

Emergency room doctors make rapid-fire, life-or-death decisions in a chaotic environment, often without knowing the medical histories of their patients.

The Georgia Supreme Court’s justices were reminded of that Tuesday by lawyers defending a key provision of the state’s tort reform law. It requires a plaintiff to establish by “clear and convincing evidence” that an ER doctor committed “gross negligence” — an almost insurmountable legal threshold — to prove medical malpractice.

The case in question involves a woman who went to the ER in Columbus complaining of serious pain behind her eye; she says a doctor sent her away with a prescription and failed to diagnose her real, disabling illness.

The Legislature passed the tort reform law in 2005. With ER doctors facing an increased threat of malpractice suits, lawmakers sought to make sure Georgia could still attract the best physicians into the state’s emergency rooms, Wade Copeland, a lawyer representing a Muscogee County doctor, told the court.

But Atlanta lawyer Michael Terry said lawmakers improperly carved out a radical exception for hospitals and insurance companies that lobbied for it at the expense of those injured by medical negligence.

“It’s the practical elimination of any [medical malpractice] claims,” Terry told the justices. The provision gives hospitals and ER physicians “an unconscionable and inequitable advantage.”

MAG Mutual, which insures most of Georgia’s doctors, has seen a significant reduction in the number of malpractice lawsuits against emergency room physicians because of the law, the company’s president, Darrell Grimes, said Tuesday. Grimes noted that the cost of insurance premiums also has fallen.

Robert Roll, an Atlanta lawyer specializing in medical malpractice cases, said trial lawyers are now extremely reluctant to bring suits involving ER care, even those that involve clear-cut cases of negligence. “It’s just an impossible standard,” Roll said of the ER statute.

Tuesday’s arguments involve a pre-trial appeal pursued by Carol Gliemmo, who went to the emergency room at St. Francis Hospital in Columbus on April 22, 2007, after experiencing a sudden snapping in her head and a throbbing behind her eye.

The hospital and the patient offer starkly different versions of what treatment Gliemmo, then 56, received and how she felt when she was allowed to leave.

Gliemmo’s lawyers say that, instead of giving their client a CAT scan, the ER doctor blamed her headache on stress and high blood pressure. He prescribed her Valium and sent her home, even though Gliemmo was screaming in pain as she left, her lawyers say.

In fact, Gliemmo’s lawsuit says, she had suffered a brain aneurysm that would have been detected by a CAT scan. She ultimately suffered a stroke causing permanent paralysis and neurological damage, according to her lawsuit.

In an interview, Copeland defended ER physician Mark Cousineau’s care. Cousineau prescribed a low dose of medication for Gliemmo’s high blood pressure and Valium for her stress, the lawyer said.

Before Gliemmo was discharged, nurses reported on three occasions that she was feeling much better, and she thanked the doctor when leaving, Copeland said.

In Tuesday’s arguments, Terry contended that the ER statute is the kind of “special law” the Georgia Constitution forbids. In this case, the special law gives unfair preferences and exemptions to the few, as opposed to general laws that govern all tort cases, he said.

In 1989, Terry noted, the [Georgia] state Supreme Court struck down a state law that gave special treatment to property claims against asbestos manufacturers.

Justice David Nahmias, who peppered lawyers from both sides with questions, told Terry the asbestos case appeared to be the best precedent to support his position. But Nahmias noted that a host of state laws grant special exemptions and credits under the tax code. Are they all unconstitutional? Nahmias asked.

“They may be,” Terry replied.

Copeland contended the ER statute is not a special law because it covers an entire segment of the healthcare industry — hospital emergency rooms.

When tort reform law was passed, according to legal briefs submitted by Copeland, 144 hospital emergency departments were operating in Georgia and collectively treated more than 3.6 million patients.