Smith v. Finch

We granted certiorari to examine the propriety of the so-called “hindsight” jury instruction prescribed for use in medical malpractice actions at Section 62.311 of the Georgia Suggested Pattern Jury Instructions: Civil Cases. Though the Court of Appeals has generally approved the use of this jury instruction, this Court has never considered it. Finding a portion of the hindsight instruction to be inaccurate and misleading, we disapprove the instruction in its current form and reverse the judgment below.

Appellants Clay and Tracie Smith sued various physicians and other health care providers for medical malpractice arising from appellees’ failure to correctly diagnose their son, Justin, with Rocky Mountain Spotted Fever (“RMSF”). It is undisputed that the appel-lee physicians were incorrect in diagnosing Justin with a viral illness and that the correct diagnosis was RMSF, a relatively rare but serious disease transmitted by ticks. At trial, the Smiths presented expert medical testimony to the effect that Justin’s presenting symptoms, including a macular rash1 originating on his hands, arms, legs, and feet, were “classic” of RMSF and that, due to the lack of a quick diagnostic test for the disease and the disease’s potentially severe and even lethal effects, the standard of care was to maintain a high index of suspicion and low threshold for treatment of the disease. These experts testified as to their respective views that each of the four defendant physicians had breached the standard of care by (1) failing to obtain a sufficiently detailed medical history for Justin, specifically with respect to the fact and/or timing of his recent tick exposure, to enable them to actively consider RMSF as the cause of Justin’s symptoms; and (2) failing to consider as a diagnosis and prophylactically treat Justin for RMSF due to the nature of his symptoms and the time (summer) and place (Georgia, where RMSF, according to appellants’ experts, is endemic) of their onset. Appel-lees, on the other hand, asserted that Justin’s symptoms were equally consistent with the diagnosis of a viral illness. The physicians also testified that cases of RMSF had been either rare or *710nonexistent in their practices and that Justin’s macular rash did not trigger their consideration of RMSF because they had been trained to associate RMSF with a petechial rash. Though the evidence showed that by the time Justin was correctly diagnosed, his rash had progressed to a petechial rash, it is undisputed that this transformation did not occur until after the alleged misdiagnoses and thus the physicians did not have the “benefit” of this observed symptom at the time they examined and diagnosed him.

In its jury charge, the court instructed the jury on general concepts of professional negligence, the standard of care, foreseeability and proximate cause. Over appellants’ objections, the court also gave the so-called hindsight instruction:

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.

Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.2), § 62.311. The jury ultimately returned a defense verdict, and, on appeal, the Court of Appeals affirmed, finding the hindsight charge to have been appropriate. Smith v. Finch, 292 Ga. App. 333 (665 SE2d 25) (2008).

1. “A jury charge should correctly state the law applicable to the issues in the case. [Cit.]” Critser v. McFadden, 277 Ga. 653, 654 (593 SE2d 330) (2004). We now hold that the hindsight instruction, as currently conceived, is not a correct statement of Georgia law as to the standard of care in medical malpractice cases. Specifically, the final sentence of the instruction is plainly inconsistent with the medical decision-making process, which often requires the consideration of unlikely but serious consequences in the diagnosis and treatment of disease, and is generally inconsistent with the standard for foreseeability in our negligence law.

*711To establish professional medical negligence the evidence presented by the patient must show a violation of the degree of care and skill required of a physician. [Cit.] Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally. [Cits.]

Kenney v. Piedmont Hosp., 136 Ga. App. 660, 664 (3) (222 SE2d 162) (1975). See also OCGA § 51-1-27. Thus, it is well recognized that “an after-the-fact assessment of facts or evidence cannot be the basis of a negligence claim ‘so long as the initial assessment was made in accordance with the reasonable standards of medical care....’” Holbrooks v. Fokes, 195 Ga. App. 418 (393 SE2d 718) (1990). The first sentence of the hindsight charge presents this concept in a straightforward manner, and we have no quarrel with it.3

The third sentence of the hindsight charge, however, goes far beyond this noncontroversial notion and is actually inconsistent with the standard of care in many medical malpractice cases. As Georgia courts have recognized, the applicable standard of care often requires employment of a “differential diagnosis” methodology, whereby “‘[t]he physician considers all relevant potential causes of the [patient’s] symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and a thorough case history.’” (Footnote omitted.) Shiver v. Georgia & Florida Railnet, 287 Ga. App. 828, 829 (1) (652 SE2d 819) (2007). See also Hawkins v. OB-GYN Assocs., 290 Ga. App. 892, 893 (1) (660 SE2d 835) (2008) (describing differential diagnosis methodology); Cherry v. Schwindt, 262 Ga. App. 48, 48-49 (584 SE2d 673) (2003) (same). In this case, for example, appellants presented expert testimony to the effect that RMSF should have been included in the physicians’ respective differential diagnoses because of Justin’s presenting symptoms and the fact that it was summertime in Georgia, as well as because of the disease’s potentially severe effects if left untreated. Having heard this testimony, the jury was then instructed, via the third sentence of the hindsight instruction, that, as a matter of law, negligence may not be found if the injury is “only remotely and slightly possible.” Given the evidence that RMSF is a disease that is relatively rare, i.e., “slightly possible,” this language effectively instructed the jury to disregard appellants’ experts’ characterization of the standard of care.

In addition, the third sentence of the charge misstates the *712standard for analyzing foreseeability. General negligence law holds that negligence may be established where it is shown that “by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” (Citations and punctuation omitted.) Munroe v. Universal Health Svcs., 277 Ga. 861, 863 (1) (596 SE2d 604) (2004). Accord Anderson v. Sears Roebuck & Co., 292 Ga. App. 603 (1) (b) (664 SE2d 911) (2008). The third sentence of the hindsight charge, however, instructs juries that liability may be premised only on those injurious results that are “probable and likely to happen.” As such, it is inaccurate and misleading.4

Accordingly, we expressly disapprove the use of the third sentence of the hindsight instruction. In addition, while we do not find the second sentence of the instruction to be a facially inaccurate statement of law, we do find that it adds nothing of substance to the first sentence and, being thus duplicative, may serve to unduly emphasize the notion that hindsight has no role in the assessment of negligence. As such, we disapprove its use as well. See Tolbert v. Duckworth, 262 Ga. 622 (1) (423 SE2d 229) (1992) (disapproving pattern instruction because concepts therein adequately covered in other standard instructions). See also Bruce v. Calhoun First Nat. Bank, 134 Ga. App. 790, 792 (3) (216 SE2d 622) (1975) (“repetitious instructions are not desirable”). In so doing, we overrule those cases in which the giving of the second and third sentences of the current hindsight instruction has been upheld, including, e.g., Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622 (4) (610 SE2d 546) (2005); Betha v. Ebanks, 264 Ga. App. 4 (1) (589 SE2d 831) (2003); Cherry, supra, 262 Ga. App. at 51 (2); Brannen v. Prince, 204 Ga. App. 866 (6) (421 SE2d 76) (1992), overruled in part on other grounds, Gillis v. City of Waycross, 247 Ga. App. 119 (543 SE2d 423) *713(2000); Haynes v. Hoffman, 164 Ga. App. 236 (3) (296 SE2d 216) (1982).5

2. Because the third sentence of the hindsight instruction essentially instructed the jury to disregard appellants’ expert testimony regarding the standard of care, the instruction was prejudicial, and the judgment below must be reversed. See generally Dent v. Memorial Hosp., 270 Ga. 316 (509 SE2d 908) (1998) (reversing judgment where jury instructions found contradictory); Clements v. Clements, 247 Ga. 787 (2) (279 SE2d 698) (1981) (same).

Judgment reversed.