Georgia has a pattern jury instruction called the "hindsight" instruction. It provides as follows:
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.
In Smith v. Finch , S08G1845 (Ga. June 29, 2009) the Georgia Supreme Court reversed a jury verdict for the defense and held that this instruction should not have been given. The court said as follows:
The third sentence of the hindsight charge, however, goes far beyond this non-controversial 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, Inc., 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 [Rocky Mountain Spotted Fever] 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.
The court also said that "the third sentence of the hindsight charge … 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." [Footnote omitted]. Why? Because |[g]eneral 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.”
The court also announced its disapproval of the second sentence of the instruction because "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."
Read the opinion here.
Thanks to Torts Prof for alerting me about the decision.