SMITH V. FINCH 681 S.E.2d 147 (Ga. 2009) CASE BRIEF

SMITH V. FINCH

681 S.E.2d 147 (Ga. 2009)

NATURE OF THE CASE: Smith (P) sued various physicians and other health care providers for medical malpractice. This appeal by P was taken upon a jury verdict and affirmation by the court of appeals to dispute 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.

FACTS: It is undisputed that the appellee physicians were incorrect in diagnosing P's son with a viral illness and that the correct diagnosis was Rocky Mountain Spotted Fever. At trial, P presented expert medical testimony that Ds, 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 and place where RMSF is endemic. 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. The jury gave the verdict to Ds and this was affirmed by the Court of Appeals. This appeal resulted.

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LEGAL ANALYSIS:

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