News

Busbee Prevails in Signicant Medical Immunity Appeal

On July 8, 2009, Owen Gleaton partner Annarita M. Busbee received a significant win from the Georgia Court of Appeals which will affect state-employed physicians treating patients covered by Medicare or Medicaid.  Although all state employees are entitled to official immunity for work performed in the scope of their employment under the Georgia Tort Claims Act (GTCA), state-employed physicians have not been afforded immunity since 1997 pursuant to the Georgia Supreme Court's decision in Keenan v. Plouffe, 267 Ga. 791 (1997).  In Keenan, the court concluded that state-employed physicians exercising independent medical discretion in the treatment of private pay patients were not entitled to immunity.

However, in its opinion in Porter v. Guill, the Georgia Court of Appeals affirmed the trial court's grant of summary judgment to Ms. Busbee's client, a physician at the Medical College of Georgia.  Specifically, the court found  that the doctor was entitled to immunity because 1) she was obligated to treat the patient in her capacity as a faculty member at MCG; 2) the case involved a Medicaid patient, therefore, the doctor's decisions were impacted by governmental guidelines and called into play the allocation of the government's resources; and 3) the legislature did intend to provide immunity to state-employed physicians who treat indigent or Medicaid patients.

The ruling is the first appellate opinion to limit the scope of Keenan and to reinstate immunity for state-employed physicians.  The opinion also could impact private physicians treating Medicare, Medicaid, and indigent patients, as the court looked to the 2005 Health Share Act--which extends immunity to private physicians treating such patients-- to demonstrate that the legislature intended to extend immunity to physicians treating such populations.  The court emphasized the important policy reasons behind granting immunity in such circumstances, citing with approval this language of the Health Share Act:  "a significant proportion of the residents of this state who are uninsured or Medicaid recipients are unable to access needed health care because health care providers fear the increased risk of medical negligence liability."  O.C.G.A. Section 31-8-191.

A copy of the opinion is available upon request.  Please contact Ms. Busbee at abusbee@og-law.com.