## Facts

- Clay and Tracie Smith sued several physicians, including Dr. Finch, for medical malpractice arising from treatment of their minor son, Justin Smith.
- Justin developed a rash on his hands, arms, legs, and feet in summer in Georgia; defendants diagnosed a viral illness.
- Justin was later determined to have Rocky Mountain spotted fever (RMSF), a serious tick-borne disease.
- Plaintiffs’ experts testified Justin’s presentation was “classic” for RMSF and that the standard of care required a high index of suspicion and a low threshold for empirical treatment because of disease severity and lack of a quick diagnostic test.
- Plaintiffs’ experts opined defendants breached the standard of care by failing to take an adequate history regarding tick exposure and failing to consider and prophylactically treat RMSF given symptoms, season, and location.
- Defendants contended the symptoms were consistent with a viral illness, that RMSF was rare in their practices, and that they associated RMSF with a petechial (not macular) rash.
- Over plaintiffs’ objection, the trial court instructed the jury using a pattern “hindsight” charge stating negligence is not judged by after-events and that a physician is not negligent for failing to anticipate events “only remotely and slightly possible,” implying negligence concerns injuries “probable and likely to happen.”
- The jury returned a defense verdict; the Court of Appeals affirmed; the Georgia Supreme Court granted certiorari to review the propriety of the pattern “hindsight” instruction.

## Issues

1. Whether the pattern “hindsight” jury instruction accurately stated Georgia law on foreseeability and the medical malpractice standard of care.
2. Whether the instruction was misleading and prejudicial such that it required reversal of the defense verdict.

## Decision

- The Georgia Supreme Court reversed the Court of Appeals and disapproved the pattern “hindsight” instruction in its existing form.
- The Court held the instruction was inaccurate and misleading insofar as it suggested negligence requires foreseeability of injuries that are “probable and likely” and permits disregard of harms that are “only remotely and slightly possible.”
- The Court accepted that juries may be told to assess a physician’s conduct under the standard of care at the time of treatment, not by later-acquired information, but rejected the instruction’s “remote/slight possibility” and “probable/likely” phrasing as inconsistent with Georgia negligence law.
- The judgment for defendants was reversed due to the improper charge’s capacity to negate plaintiffs’ expert theory that reasonable physicians must consider and treat serious, less-common diagnostic possibilities.

## Legal Principles

- In Georgia negligence law, foreseeability is not limited to harms that are “probable and likely”; liability may exist when a reasonable person could foresee that some injury might result from an act or omission.
- A medical malpractice charge may properly instruct that conduct is judged by the standard of care existing at the time of treatment, without using hindsight based on after-events.
- Jury instructions that narrow foreseeability to “probable and likely” harms, or that direct jurors to discount risks characterized as “only remotely and slightly possible,” misstate Georgia law and may prejudice evaluation of expert standard-of-care testimony.
- Medical decisionmaking commonly involves differential diagnosis, requiring consideration of relevant potential causes, including relatively rare conditions where failure to act poses serious consequences.

## Conclusion

The Georgia Supreme Court reversed the defense verdict because the pattern “hindsight” medical-malpractice instruction misstated foreseeability and risked misleading jurors into discounting serious but less-likely diagnostic risks; the Court disapproved the instruction’s disputed language while permitting time-of-treatment standard-of-care guidance.


Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (Ga. 2009)