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Malpractice case heads to Georgia Supreme Court

Hindsight jury charge is focus of appeal

POSTED: January 9, 2009 12:38 a.m.

The Georgia Supreme Court will hear arguments next week in a civil case in which four Hall County physicians were cleared by a jury of negligence in the misdiagnosis of a child with Rocky Mountain spotted fever.

The high court’s decision could have a lasting effect on medical malpractice lawsuits in Georgia and whether defendants can be excused for not foreseeing the impact of their acts.

Justices agreed to consider whether Hall County State Court jurors who deliberated the case in 2006 should have been given certain legal instructions regarding hindsight prior to deliberating the case of Justin Smith.

Smith’s parents, Clay and Tracie Smith, alleged that physicians Cathryn Finch, Charles Jones, Jeff Elder and Todd Jordan were negligent when they failed to spot the symptoms of the rare tick-borne illness in their child, who was 13 when he was stricken in June 2003. Doctors initially thought Justin Smith suffered from an enterovirus.

The Smiths claimed their son, who testified during the trial, suffered permanent brain damage before he was properly treated at Children’s Healthcare of Atlanta at Egleston, 12 days after first being seen by a pediatric doctor for fever and headaches. An attorney for the Smiths asked a jury to award $3.8 million.

Lawyers for the doctors disputed that the child suffered lasting effects from the illness.

The civil trial lasted two weeks and ended with a jury of 12 clearing all four physicians of any liability. Attorneys for the doctors successfully argued that they showed "reasonable care and skill" in treating the child, and pointed out that Rocky Mountain spotted fever is so seldom seen by doctors that it is difficult to diagnose. In 2002, there were only 84 cases of the illness nationwide among children ages 5 to 14.

The state Supreme Court will consider whether an instruction given by the presiding judge regarding hindsight is an inaccurate or confusing statement of law that should be overturned.

The hindsight jury instruction says in part that "negligence consists of foreseeing and guarding against that which is possible and likely to happen, not against that which is only remotely and slightly possible."

Lawyers for the Smiths say the instruction is in conflict with the legal rule of foreseeablility, in which a person can be held liable "if a defendant might have foreseen some injury would result from his act or omission."

The plaintiffs attorneys also claim that the hindsight instruction, also known as a "jury charge" should only be given if negligence is claimed in a case in which information was not available to the physicians, noting that the doctors knew about the tick bite.

Lawyers for the doctors say a "hallmark rash" that is a sign of Rocky Mountain spotted fever did not surface until Justin Smith was taken to Egleston, and was information not known to them at the time of their diagnosis.

The doctors contend, according to a summary of the appeal from the Georgia Supreme Court, that "the hindsight charge should not be overturned, as it is a common sense concept that cautions a jury against using a retrospective viewpoint to decide whether a physician committed medical malpractice."

David S. Bills, the attorney representing the Smiths, called the jury’s 2006 verdict "an unfortunate outcome."

Bills said no other state in the nation has a similar hindsight jury charge, and noted that it is only used in medical malpractice cases, not in product liability suits.

"We are confident that the Georgia Supreme Court will carefully consider this pending issue of medical malpractice law that we believe needs to be changed," Bills said.

Attorneys Weymon Forrester and John Dickerson, who successfully represented the doctors, were unavailable for comment Thursday.



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