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Zwiren v. Thompson3/27/2003
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 SE2d 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 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.
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 (1a) (304 SE2d 922) (1983). See also Johnson v. Riverdale Anesthesia Assoc., 275 Ga. 240, 241 (fn. 2) (563 SE2d 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 fact finder be inclined by the evidence toward one side or the other." Murray v. State, 269 Ga. 871 (2) (505 SE2d 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, 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
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