Georgia High Court Ruling is a Victory for Medical Malpractice Claimants
People bringing medical malpractice claims in Georgia received good news in a recent ruling from the state's top court.

August 04, 2009 /24-7PressRelease/ -- Georgia High Court Ruling is a Victory for Medical Malpractice Claimants

Article provided by Kirschner & Venker - Georgia Medical Malpractice Attorneys
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On June 29, 2009, the Georgia Supreme Court issued an important ruling for those bringing medical malpractice claims. In Smith et al. v. Finch et. al., the state's highest court overruled the use of the pattern hindsight jury instruction in medical malpractice cases. The hindsight jury instruction stated that physicians only can be found guilty of committing medical malpractice if the negative outcome was probable and likely to happen. The Georgia Supreme Court, however, found this instruction was too limited and did not correctly apply state law or appropriate medical standards for a differential diagnosis.

Misdiagnosis of Rocky Mountain Spotted Fever

In the summer of 2003, Clay and Tracy Smith's son found a tick on his leg and later developed severe headaches, fever and vomiting. The Smiths initially took their son to see two pediatricians, who diagnosed him with a viral illness. When his condition did not improve, they took him to a local emergency room where the ER doctor provided the same diagnosis. The Smiths then took their son to see yet another pediatrician who offered the same diagnosis as the three previous doctors.

The Smiths' son, however, did not get better. He was eventually transferred to the Egleston Children's Hospital in Atlanta where doctors correctly diagnosed him with Rocky Mountain Spotted Fever. The Smiths then brought suit in 2003 against the previous doctors, hospital and clinic that misdiagnosed their son's illness.

The Pattern Hindsight Jury Instruction

To bring a successful medical malpractice claim in Georgia, the Smiths had to prove that their son's doctors breached the accepted standard of medical care in diagnosing his illness. To do this, they had medical experts testify at the trial that their son's symptoms were consistent with a diagnosis of Rocky Mountain Spotted Fever and that the doctors breached the standard of care by not considering this diagnosis.

In turn, the physicians had medical experts testify that the child's symptoms were consistent with a viral illness. The doctors argued that the child did not have a petechial rash, which is a hallmark symptom of Rocky Mountain Spotted Fever. The child later developed the rash, but it was after the four physicians had treated him.

The judge gave the jury the pattern "hindsight instruction," previously approved by the Georgia Court of Appeals, which states that:

"In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient's condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible."

Thus, the physicians could not be liable for the child's misdiagnosis unless Rocky Mountain Spotted Fever was a condition that was "probable and likely to happen"--and both sides had acknowledged during the trial that the disease was a rare condition.

Based on this instruction, the jury found in favor of the physicians. The decision was upheld by a Georgia Court of Appeals in 2006. The Smiths then appealed their case to the Georgia Supreme Court.

The Georgia Supreme Court's Ruling

The Georgia Supreme Court reversed the Court of Appeals' ruling in the Smith case, based on its finding that a portion of the hindsight jury instruction incorrectly stated Georgia law on negligence and medical malpractice. More specifically, the court took issue with the last two sentences of the jury instruction that only permit a finding of medical malpractice if the injury to the patient is probable and likely to happen.

When physicians diagnose a patient's injury or ailment, they use a process of elimination (or "differential diagnosis"). This method requires doctors to consider all of the possible causes for a patient's illness or ailment--even those that may be rare--before eliminating each one based on the patient's symptoms, history, physical examination and test results. During this process, physicians do not just consider the most common diagnoses, but also those that occur less frequently. As a result, physicians have a duty to eliminate all possible diagnoses, and not just the most obvious ones.

The court also found that the jury instruction incorrectly stated Georgia law on foreseeability. Under the law, people--including physicians--may be held liable for negligence when it is foreseeable that some injury could result from their actions or inactions. The hindsight jury instruction, however, only permits liability to attach if the result was probable and likely to happen, which is much less than for which the law allows. Thus, the court concluded that the hindsight jury instruction did not correctly apply Georgia law and produced unfair and unreasonable results.

Before the Georgia Supreme Court ruling, the hindsight jury instruction deprived many plaintiffs of their rights to recover for the negligent acts of physicians by incorrectly limiting their liabilities. Accordingly, this case represents a clear and significant victory for injured people in Georgia.

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