Zwiren v. Thompson

• Decision Date: 27 March 2003
• Docket Number: No. S02G1063.,S02G1063.
• Citation: 578 S.E.2d 862,276 Ga. 498
• Parties: ZWIREN et al. v. THOMPSON.
• Court: Georgia Supreme Court

578 S.E.2d 862

276 Ga. 498

ZWIREN et al. v. THOMPSON.

No. S02G1063.

Supreme Court of Georgia.

March 27, 2003.

Reconsideration Denied April 11, 2003.

Love, Willingham, Peters, Gilleland & Monyak, Robert P. Monyak, Anna B. Fretell, Lucas W. Andrews, Atlanta, for appellant.

Peterson & Harris, Jim N. Peterson, Jr., Atlanta, for appellee.

Carlock, Copeland, Semler & Stair, LLP, Thomas S. Carlock, Taylor, Harp & Callier, John S. Taylor, Boone & Stone, William S. Stone, Antoinette D. Johnson, amici curiae.

BENHAM, Justice.

In September 1998, appellee Tracee Thompson underwent surgery performed by appellant Dr. Jeffrey Zwiren. A year later, Thompson filed a medical malpractice complaint against Zwiren and his professional corporation that resulted in a trial at which the jury returned a defense verdict. In Thompson v. Zwiren, 254 Ga.App. 204, 561 S.E.2d 493(2002), the Court of Appeals reversed the trial court's judgment after determining the trial court committed harmful error when it gave the following charge:

In order for the Plaintiff to show a medical cause and effect relationship, Plaintiff must present expert medical testimony show[ing] that[,] within a reasonable degree of medical certainty[,] as proven by a preponderance of the evidence[,] that the injury in question was proximately caused by the negligence of the Defendant. Expert testimony on the issue of causation cannot be based on speculation or possibilities. It's not sufficient for the expert testimony to show the negligence, if any, is only a possible cause of the plaintiff's injury, or that the alleged neglect merely might have caused the damages. If you find the Plaintiff has not proven to a reasonable degree of medical certainty by a preponderance of the evidence that the alleged damages were proximately caused by the Defendant's neglect, then you would return a verdict for the Defendants.¹

We granted the writ of certiorari to address whether the Court of Appeals erred when it held it was reversible error to give the jury instruction "within a reasonable degree of medical certainty." We conclude that the charge as given, while not a model of clarity, did not rise to the level of reversible error. Accordingly, we reverse the judgment of the Court of Appeals.

"A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had." OCGA § 51-1-27. Three essential elements to establish liability in a medical malpractice action have emerged from the statute: "(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." Hawkins v. Greenberg, 166 Ga.App. 574(1)(a), 304 S.E.2d 922 (1983). See also Johnson v. Riverdale Anesthesia Assoc., 275 Ga. 240, 241, n. 2, 563 S.E.2d 431 (2002). Medical malpractice being a civil cause of action, a plaintiff must prove liability (i.e., duty, negligence, proximate cause) by a preponderance of the evidence. OCGA § 24-4-3. "Preponderance of the evidence" is statutorily defined as "that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other." OCGA § 24-1-1(5). "The standard requires only that the finder of fact be inclined by the evidence toward one side or the other." Murray v. State, 269 Ga. 871, 873(2), 505 S.E.2d 746 (1998). In the case at bar, the trial court informed the jury that the plaintiff had the burden of proving her claim by a preponderance of the evidence and gave the jury the suggested pattern charge on preponderance of the evidence. Suggested Pattern Jury Instructions, Vol. I: Civil Cases, Sec. I(D), p. 3-4.

Our focus in this case is on the proximate-cause prong of the medical malpractice liability trident. It is clear that a plaintiff cannot recover for medical malpractice, even where there is evidence of negligence, unless the plaintiff establishes by a preponderance of the evidence that the negligence "either proximately caused or contributed to cause plaintiff [harm.]" Parrott v. Chatham County Hosp. Auth., 145 Ga.App. 113, 115, 243 S.E.2d 269 (1978). See also McClure v. Clayton County Hosp. Auth., 176 Ga.App. 414(3), 336 S.E.2d 268 (1985); Kirby v. Spivey, 167 Ga.App. 751(3), 307 S.E.2d 538 (1983). Proximate cause "is that which in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred." T.J. Morris Co. v. Dykes, 197 Ga. App. 392, 395-396(4), 398 S.E.2d 403 (1990). See also Locke v. Vonalt, 189 Ga.App. 783(7), 377 S.E.2d 696 (1989); Suggested Pattern Jury Instructions, Vol. I: Civil Cases, Sec. XXXII(a), p. 231 (3rd ed.). What amounts to proximate cause "is undeniably a jury question" (Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683(2), 572 S.E.2d 533 (2002); McAuley v. Wills, 251 Ga. 3, 7, 303 S.E.2d 258 (1983)), and "`is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.'" Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 398 S.E.2d 16 (1990). See also 1 Street, Foundations of Legal Liability, 1906, 110. In the case at bar, the jury was given the suggested pattern jury instruction on proximate cause.²

In order to establish proximate cause by a preponderance of the evidence in a medical malpractice action, the plaintiff must use expert testimony because the question of whether the alleged professional negligence caused the plaintiff's injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Pilzer v. Jones, 242 Ga.App. 198(1), 529 S.E.2d 205 (2000); R.J. Taylor Mem. Hosp. v. Gilbert, 213 Ga.App. 104, 105, 443 S.E.2d 656 (1994), rev'd on other grounds, Gilbert v. R.J. Taylor Mem. Hosp., 265 Ga. 580, 458 S.E.2d 341 (1995)

. Using the specialized knowledge and training of his field, the expert's role is to present to the jury a realistic assessment of the likelihood that the defendant's alleged negligence caused the plaintiff's injury. See Abdul-Majeed v. Emory Univ. Hosp., 225 Ga.App. 608, 609, 484 S.E.2d 257 (1997),

overruled in part on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279, 526 S.E.2d 609 (1999). In presenting an opinion on causation, the expert is required to "express some basis for both the confidence with which his conclusion is formed, and the probability that his conclusion is accurate." Hullverson, Reasonable Degree of Medical Certainty: A Tort et a Travers, 31 St. Louis U.L.J., 577, 582 (1987). "Perhaps in the world of medicine nothing is absolutely certain. Nevertheless,... it is the intent of our law that if the plaintiff medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment." McMahon v. Young, 442 Pa. 484, 276 A.2d 534, 535 (1971). See also Catchings v. State, 684 So.2d 591, 597 (Miss.1996).

While not expressly setting forth this premise, the Georgia appellate court decisions on expert "proximate cause" testimony in medical malpractice actions have applied it. The appellate decisions state that the expert testimony must provide a causal connection that is "more than mere chance or speculation" (Anthony v. Chambless, 231 Ga. App. 657(1), 500 S.E.2d 402 (1998)); that it must provide more than a mere or bare possibility that the alleged negligence caused the plaintiff's injury. Bowling v. Foster, 254 Ga.App. 374, 562 S.E.2d 776 (2002); Maddox v. Houston County Hosp. Auth., 158 Ga.App. 283, 284, 279 S.E.2d 732 (1981). Expert testimony that it was "more likely that there was a possibility" that the injury could have been avoided does not provide the necessary basis for the expert's opinion on proximate cause. Grantham v. Amin, 221 Ga.App. 458, 471 S.E.2d 525 (1996). Instead of speaking in terms of possibilities, the expert's testimony must show as an evidentiary threshold that the expert's opinion regarding causation is based, at the least, on the determination that "there was a reasonable probability that the negligence caused the injury." Pilzer v. Jones, supra, 242 Ga.App. at 201, 529 S.E.2d 205; Cannon v. Jeffries, 250 Ga.App. 371, 551 S.E.2d 777 (2001), (expert testimony indicating a causal connection less than a reasonable probability is insufficient to establish liability); Abdul-Majeed v. Emory Univ. Hosp., supra, 225 Ga.App. at 609, 484 S.E.2d 257 (while certainty is not required, plaintiff must show a probability rather than merely a possibility that the alleged negligence caused the injury or death). The expert also meets this requirement by stating that the only apparent cause of the plaintiff's injury was the defendant's action (Killingsworth v. Poon, 167 Ga.App. 653, 657, 307 S.E.2d 123 (1983)); or if the expert presents "overwhelming" testimony of experience that, in the absence of the alleged negligence, the patient's condition could have been prevented from worsening. Lee v. Satilla Health Svcs., 220 Ga.App. 885(2), 470 S.E.2d 461 (1996).

There is a line of appellate decisions stating "there can be no recovery for medical negligence involving an injury to a patient when there is no showing to any reasonable degree of medical certainty that the injury could have been avoided." See Bowling v. Foster, supra, 254 Ga.App. at 378, 562 S.E.2d 776; Cannon v. Jeffries, supra, 250 Ga.App. at 373, 551 S.E.2d 777; Anthony v. Chambless, supra, 231 Ga.App. at 661, 500 S.E.2d 402; Grantham v. Amin, supra, 221 Ga.App. 458, 471...