Gainesville malpractice verdict overturned

ATLANTA - The verdict in a Gainesville malpractice case is overturned by the state Supreme Court.

A Hall County State Court jury in 2006 ruled in favor the doctors who were sued by Clay and Tracie Smith because they failed to diagnose their son Justin's Rocky Mountain Spotted Fever three years earlier.

But, the high court said the judge in the case erred in his instructions to the jury and overturned the judgement.

SUMMARY OF GEORGIA SUPREME COURT RULING:

SMITH ET AL. V. FINCH ET AL. (S08G1845) In a 5-to-2 decision, the Georgia Supreme Court has reversed the Georgia Court of Appeals in another medical malpractice case that also involves the "hindsight" charge given to jurors.

The appeal stems from a lawsuit brought by a Hall County mother and father against physicians who failed to diagnose their son's Rocky Mountain Spotted Fever.

According to briefs filed in the case, in 2003, Justin Smith found a tick on his leg before developing a severe headache, fever and vomiting. He was seen by two pediatricians who knew about the tick, but concluded he suffered from a viral illness. He then was seen by an emergency room doctor, who made the same diagnosis. A third pediatrician also assured the boy's mother he would recover. The boy eventually was transferred to Egleston Children's Hospital in Atlanta, where physicians quickly diagnosed Rocky Mountain Spotted Fever. His parents sued the four physicians, the medical practice and the Gainesville Emergency Department Services.

At trial, the Smiths presented medical experts who testified the physicians had breached the standard of care by failing to get a detailed medical history of Justin and by failing to treat him for spotted fever. The doctors testified that spotted fever was very rare, and Justin's symptoms were also consistent with an enterovirus. Furthermore, they did not observe the signature rash associated with spotted fever, as it did not develop until later.



In charging the jury, the judge gave the 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."

The jury ruled in favor of the physicians, and the Court of Appeals upheld the verdict.

But in today's opinion, written by Presiding Justice Carol Hunstein, the majority has reversed the trial court and Court of Appeals. "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," the opinion says. At issue, the majority says, is the third sentence of the instruction.

"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," the majority states. In this case, the Smiths argued that doctors should have considered Rocky Mountain Spotted Fever as a possible diagnosis because of Justin's symptoms, because it was summer, and because of the disease's severe effects if not treated. But because the disease is rare, the instruction's "slightly possible" wording "effectively instructed the jury to disregard appellants' experts' characterization of the standard of care," the majority writes. The majority also disapproves of the second sentence which it calls "duplicative."

In a dissent, Justice Harold Melton writes that he agrees that the third sentence should be disapproved but not the second, which "merely simplifies, in an accurate way, the legal concept outlined in the first sentence of the charge." "In this regard, the second sentence should remain part of the overall charge as a means of further assisting the jury during its deliberations," says the dissent, joined by Justice P. Harris Hines.