Smith v. Finch
681 S.E.2d 147 (2009)
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Rule of Law:
A jury instruction in a medical malpractice case that defines negligence as only failing to guard against what is "probable and likely," and not what is "remotely and slightly possible," is an incorrect statement of law, as the medical standard of care often requires physicians to consider and rule out rare but serious conditions.
Facts:
- Clay and Tracie Smith's son, Justin, was diagnosed with a viral illness by appellee physicians.
- The correct diagnosis was Rocky Mountain Spotted Fever (RMSF), a rare but serious tick-borne disease.
- At the time of the misdiagnosis, Justin presented with a macular rash on his extremities, a symptom the Smiths' experts testified was 'classic' for RMSF.
- The Smiths' experts asserted that the standard of care required the physicians to consider RMSF in their differential diagnosis due to the symptoms, the time of year (summer), and the location (Georgia).
- The appellee physicians testified that they did not consider RMSF because they had been trained to associate it with a different type of rash (petechial) and the disease was rare in their experience.
- Justin's rash did not become petechial until after the alleged misdiagnoses occurred.
Procedural Posture:
- Clay and Tracie Smith (appellants) sued appellee physicians for medical malpractice in a Georgia trial court.
- Over the Smiths' objection, the trial court gave the jury a pattern 'hindsight' instruction.
- The jury returned a verdict in favor of the defendant physicians.
- The Smiths appealed the judgment to the Georgia Court of Appeals.
- The Court of Appeals (intermediate appellate court) affirmed the trial court's judgment, finding the hindsight instruction was appropriate.
- The Supreme Court of Georgia (the state's highest court) granted certiorari to review the Court of Appeals' decision.
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Issue:
Does a pattern jury instruction in a medical malpractice case misstate the standard of care by stating that negligence does not include failing to foresee and guard against an outcome that is "only remotely and slightly possible"?
Opinions:
Majority - Hunstein, Presiding Justice
Yes, the instruction misstates the standard of care. The portion of the instruction stating negligence applies only to what is 'probable and likely' and not what is 'remotely and slightly possible' is inconsistent with the medical decision-making process. The standard of care often requires a physician to use a 'differential diagnosis' methodology, which involves considering all relevant potential causes of a patient's symptoms, including rare but serious diseases. Instructing the jury to disregard 'remotely and slightly possible' outcomes effectively tells them to ignore expert testimony that the standard of care required considering a rare disease like RMSF. This part of the instruction also misstates general negligence law regarding foreseeability, which only requires that a defendant might have foreseen that 'some injury' could result, not that it be 'probable and likely.'
Concurring-in-part-and-dissenting-in-part - Melton, Justice
Yes, the third sentence of the instruction misstates the standard of care and its use should be disapproved. However, the majority is wrong to disapprove the second sentence, 'the concept of negligence does not include hindsight.' This is a facially accurate statement of law that simplifies and clarifies the legal concept from the first sentence for the jury's benefit. Disapproving accurate, clarifying language unduly restricts a trial court's ability to properly instruct a jury.
Analysis:
This decision significantly alters medical malpractice litigation in Georgia by invalidating a key portion of a standard pattern jury instruction. By rejecting the 'probable and likely' foreseeability standard in this context, the court affirmed that the standard of care requires a broad diagnostic approach, including the consideration of rare but severe conditions. This ruling strengthens the position of plaintiffs in missed-diagnosis cases involving uncommon diseases and requires trial courts to provide more nuanced instructions that do not improperly narrow the jury's view of a physician's duty. The case effectively overrules a line of appellate cases that had previously approved the now-disapproved instruction.
