MEDICAL MALPRACTICE
When a plaintiff is injured while under a physician’s care, the plaintiff will normally seek to bring a malpractice action against the physician. A medical malpractice action is a negligence action in which the plaintiff attempts to show that the physician breached the reasonably standard of professional care. In most medical malpractice suits, the central issue is determining the requisite standard of care among the medical profession and examining whether the treating or attending physician failed to exercise this degree of care.
While most medical malpractice lawsuits brought by plaintiffs allege that the physician failed to exercise the duty by injuring the plaintiff during a specific medical procedure or course of treatment, there are other ways in which a physician can potentially breach the duty of care. In some instances, a plaintiff will bring a medical malpractice action against a physician for failure to diagnose a problem or ailment. The case Smith v. Finch raised this kind of medical malpractice claim.
In the Smith v. Finch case, the plaintiffs brought an action on behalf of their son, Justin, against the physician, alleging that the physician had committed medical malpractice in failing to correctly diagnose the son with Rocky Mountain Spotted Fever (RMSF) (Smith v. Finch, 2009, p. 148). RMSF is a relatively uncommon disease that is transmitted through tick bites (Smith v. Finch, 2009, p. 148). The physician who treated Justin incorrectly diagnosed him with a viral illness instead of RMSF (Smith v. Finch, 2009, p. 148).
At the trial, the plaintiffs presented the testimony of expert witnesses who testified about Justin’s symptoms (Smith v. Finch, 2009, p. 148). The experts presented that Justin’s exhibited symptoms, which included a macular rash on his arms, hands, legs, and feet were “classic” signs of the RMSF disease (Smith v. Finch, 2009, pp. 148-149). According to the plaintiff’s experts, the reasonable standard of care that Justin’s physicians should have exercised was to keep a high index of suspicion and low threshold for treatment of the particular disease (Smith v. Finch, 2009, p. 149).
Specifically, the experts testified that the treating physician breached the standard duty of professional care by 1) not acquiring an adequately detailed medical history for Justin, especially regarding any prior history of tick bites or tick exposure to consider RMSF as a potential cause for Justin’s symptoms, and 2) not considering as a diagnosis and prophylactically treating Justin for RMSF due to the nature of symptoms and the fact that this took place in a warm climate in the summer time, where RMSF, according to the experts, is prevalent (Smith v. Finch, 2009, p. 149). The defense, on the other hand, offered testimony that Justin’s symptoms were equally indicative of a viral illness, which is what the physician diagnosed Justin as suffering from (Smith v. Finch, 2009, p. 149). In addition, the defense testified that RMSF was extremely rare and practically nonexistent in their medical practices (Smith v. Finch, 2009, p. 149).
The defense objected to the jury being given a hindsight jury instruction (Smith v. Finch, 2009, p. 149). The hindsight instruction provided in relevant part that, “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” (Smith v. Finch, 2009, p. 149). After the jury found in the physician’s favor, the plaintiffs appealed, arguing that the hindsight instruction that was given was an incorrect statement of the law (Smith v. Finch, 2009, p. 149). The Court of Appeals upheld the jury verdict, finding that the instruction was proper and appropriate (Smith v. Finch, 2009, p. 149).
Upon review of the jury instruction that was given, the Supreme Court of Georgia found that the hindsight instruction was an incorrect statement of state negligence law (Smith v. Finch, 2009, p. 149). This is because the instruction told the jury that negligence does not include guarding against those things that are unlikely to occur (Smith v. Finch, 2009, p. 149). Consistent with the requisite standard of professional care, a physician does have a duty to consider improbable but serious consequences when making a diagnosis and prescribing treatment for a disease (Smith v. Finch, 2009, p. 149). The court clarified the correct articulation of negligence law in a medical malpractice case. The proper standard of care “is that which, under similar conditions and like circumstances, is ordinarily employed by the medical professional generally” (Smith v. Finch, 2009, p. 149).
The court also found that the portion of the instruction that told the jury that negligence only attaches when harm is “probable and likely to happen” was a misstatement of the law (Smith v. Finch, 2009, p. 150). This is because negligence liability in a medical malpractice case arises when the risk of an injury is foreseeable. While some injuries may be remote or unlikely, they may still be foreseeable under the requisite standard of care that is generally exercised by reasonable medical professionals.
Ultimately, the court found that the hindsight jury instruction was prejudicial to the plaintiff because it misstated the law (Smith v. Finch, 2009, p. 151). The court reversed the judgment of the lower court and remanded the case.
References
Smith v. Finch, 681 S.E.2d 147 (Ga. 2009).
