An interesting turn of events has occurred in the medical malpractice lawsuit brought by Georgia couple Clay and Tracy Smith.  They were previously unsuccessful in proving their claim, and that verdict was upheld by the Court of Appeals.  Recently, however, the Georgia Supreme Court reversed this decision and breathed new life into the case.

According to their claim, in the summer of 2003 the Smith’s son found a tick on his leg and shortly thereafter he began experiencing fever, vomiting and severe headaches.  The Smiths brought their son to two pediatricians, both of whom diagnosed the child with a viral infection.  When his condition failed to improve, they then took him to the emergency room and another pediatrician, and were given the same diagnosis of a viral illness.

Their child’s health continued to deteriorate, however, and he eventually ended up at the Egleston Children’s Hospital where he finally received an accurate diagnosis.  He was suffering from a condition known as Rocky Mountain Spotted Fever and he was finally treated properly for the illness.

The Smiths brought a medical malpractice lawsuit against all the parties involved in their son’s misdiagnosis.  During the trial, the jury was instructed to follow the pattern “hindsight instruction”, which states the following:

“In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient’s condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight. 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.”

Based on these instructions, specifically the part that states that the illness Smith suffered from would have to have been considered “probable and likely to happen”, the jury ruled in favor of the physicians.  The Georgia Court of Appeals upheld the verdict.

The Smiths, however, refused to give up in their pursuit of justice for their son.  They turned to the Georgia Supreme Court for help.  The decision was reversed because the Supreme Court took issue with the very phrase that had caused the jury to arrive at their original verdict: that medical malpractice could only be proven if the illness or diagnosis was “probable and likely to happen”.

The reversal hinged on the fact that when doctors examine a patient, they are supposed to use a process referred to as differential diagnosis; in other words, a process of elimination.  Proper medical standard of care dictates that physicians must consider all possible causes of a patient’s condition or symptoms, including things that may be rare, before arriving at a final diagnosis.  The Court ruled that the hindsight jury instruction was inaccurate and resulted in an unfair verdict.

Once again, there are lessons to be learned from this situation, including the importance of seeking second, third, fourth or as many opinions as it takes to reach the right diagnosis.  Additionally, this case serves to remind victims of medical negligence never to give up in their pursuit of justice.