Beach v. Lipham

¶1Following an eight-day trial, the jury in this medical malpractice action returned a defense verdict in favor of the doctor and hospital. The Court of Appeals of Georgia affirmed in a two-page unpublished opinion.1 We granted the plaintiffs’ petition for the writ of certiorari to consider whether trial courts in medical negligence cases should give the standard jury instruction on the presumption that medical services are performed in an ordinarily skillful manner. Because the presumption charge did not unfairly accentuate the plaintiffs’ burden of proof in this case and the jury charge as a whole made clear that the plaintiffs had to prove negligence by a preponderance of the evidence, we hold that the trial court did not err in giving the charge and affirm. Due to possible confusion, however, about how juries should apply the charge, we recommend changes in the language of the pattern instruction for use in future cases.

¶2Mary Jo Beach and her husband sued Mark L. Lipham, M.D., and Tanner Medical Center for negligence after she suffered brain damage and other injuries in the hospital on January 5, 1995. The jury heard testimony from twenty-two witnesses, including ten doctors and four nurses. The Beaches presented expert testimony that Dr. Lipham fell below the standard of care in ordering high doses of morphine and in failing to order adequate monitoring of Beach and the hospital’s nurses fell below the standard of care in failing to properly monitor her. Dr. Lipham countered with expert testimony that he prescribed the right treatment for Beach’s pneumonia and the proper amount of monitoring; likewise, the hospital presented evidence that its nurses followed the doctor’s orders and standard procedures in caring for Beach.

¶3In its jury charge, the trial court first stated that the plaintiffs had the burden of proving their case by a preponderance of the evi*303dence and explained that concept. The trial court gave the “presumption of due care” charge as part of two pages of instructions explaining the standard of care: “In Georgia the law is such where there is a presumption that medical, surgical, and nursing services were performed in an ordinarily skillful manner, and the burden is on the Plaintiffs to show a want of due care, skill, and diligence.” Beach excepted to the charge as giving too much emphasis to her burden to prove that the defendants deviated from the standard of care, but the trial court overruled the objection. The jury returned a verdict in favor of the defendants after just 15 minutes of deliberations.

¶4On appeal, Beach challenged the giving of the presumption charge as her sole enumeration of error. The court of appeals ruled that the trial court did not err in giving it because our appellate courts have consistently approved the charge.2 This Court granted review to address whether the court of appeals erred in approving the use of the standard charge, which is routinely given in medical malpractice cases.

¶51. Both this Court and the court of appeals have held that the presumption of due care charge is a correct statement of the law in Georgia.3 In Shea v. Phillips,4 we stated the following: “In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skil[l]ful manner, and the burden is on the one receiving the services to show a want of due care, skill, and diligence.”5 This Court explained that a plaintiff ordinarily must present testimony from doctors as expert witnesses to overcome the presumption of due care and establish a doctor’s negligence.

¶6Although the Shea case dealt with whether the plaintiff had presented sufficient evidence of negligence to raise a jury question, the court of appeals has addressed whether the presumption should be given as a jury instruction in a medical negligence action. In Overstreet v. Nickelsen,6the plaintiff asserted that the trial court erred in giving the presumption of due care charge after the plaintiff introduced expert testimony that the defendants did not exercise the required standard of care. Examining presumptions in civil cases, then-judge Carley concluded that the contested charge stated a rebuttable presumption of law. “Thus, under Georgia law, the pre*304sumption is that, in the absence of evidence to the contrary, medical services were performed in an ordinary, skillful manner. The proof required to rebut that presumption must come from expert medical witnesses.”7 The court in Overstreet held that the due-care presumption did not vanish when the plaintiff introduced contrary evidence and, therefore, the trial court did not err in charging the jury concerning the rebuttable presumption.

¶7Like the court of appeals, we conclude that the presumption of due care is a rebuttable presumption of law.8 It is a legal inference or assumption that physicians, nurses, and other medical professionals exercise due care and skill in their treatment of a patient based on their education, training, and experience. To overcome the presumption in the typical case, the injured patient must present evidence from expert medical witnesses that the defendants did not exercise due care and skill in performing their services.9

¶82. Presumptions in civil cases have an effect at two stages during a jury trial: when a party moves for a directed verdict and when the trial court instructs the jury.10 Under Georgia law, a rebuttable presumption of law generally does not vanish when the opposing party introduces evidence contrary to the presumption.11 As Professor Milich explains in his treatise on Georgia evidence, “it does not matter how much counter evidence the opponent has presented to rebut the presumed fact, the presumption remains alive through jury instructions and can only disappear if the jury decides to discount it.”12

¶9The Beaches do not challenge the trial court’s use of the due-care presumption in determining whether they presented sufficient evidence of negligence to raise a jury question. Instead, they ask this Court to find that the giving of the presumption as a jury charge was prejudicial to them because the experts gave conflicting testimony about the required standard of care.

¶10After reviewing the trial court’s charge to the jury in this case, we hold that the court of appeals did not err in approving the use of the standard jury instruction on the presumption that medical services are performed in an ordinarily skillful manner. The instruction *305is a correct statement of the substantive law in Georgia. It is part of the recommended pattern jury instructions for medical negligence cases.13 It does not suggest to jurors that they must hold the plaintiff to a standard of proof other than the preponderance of the evidence. Moreover, the challenged instruction is appropriate in medical negligence cases because physicians and nurses, like other professionals, are held to a higher standard of care than ordinary negligence; they must exercise the degree of care generally employed by other members of their profession. The charge helps ensure that jurors, who are not trained in medicine, judge the actions of medical professionals based on the evidence of witnesses who do have the requisite training. Finally, as one sentence in a twenty-page charge, the charge did not impose undue emphasis on the plaintiffs’ burden to prove the defendants’ lack of due care or impose a double burden of proof on plaintiffs. Instead, the charge as a whole consistently stated that the plaintiffs had the burden to prove their case by the preponderance of the evidence.14

¶113. Despite our approval of the instruction here, we acknowledge that the pattern charge may be confusing to jurors because they are not told how much weight to give the presumption or how much rebuttal evidence is required.15 The fact that the instruction is a correct statement of law does not mean that it is the clearest statement of the law, especially for jurors without legal training.16 Since an important goal of a jury charge is to explain the law in “simple, straightforward, and understandable language,”17 we conclude that the wording of the presumption charge needs to be revised.

¶12In discussing the presumption, the pattern jury instruction needs to explain more clearly the presumption’s relationship to the plaintiff’s burden of proof and the defendant’s standard of care. The jury needs to be instructed that (1) the law presumes that physicians (or other medical professionals) perform medical services in an ordinarily skillful manner; (2) the person claiming an injury may overcome this legal presumption by introducing evidence that the physi*306cian did not treat the patient in an ordinarily skillful manner; (3) expert medical testimony is required to overcome the presumption; and (4) the plaintiff’s burden in proving the physician’s lack of due care and skill is by the preponderance of the evidence. These suggested changes are intended to uphold the tradition of having physicians judged by their peers while ensuring that jurors are instructed that the due-care presumption does not change the plaintiff’s burden of proof in medical negligence cases.

¶13Judgment affirmed.