I am in intense trial preparation this week for a medical malpractice trial I start on Tuesday in the DeKalb County State Court. As a plaintiff’s personal injury lawyer, I take just about any sort of case, including cases like the one I will try next week, against a physician for a medical error he committed during surgery. This type of case is known as a “medical malpractice” case, but all “malpractice” really means is “negligence,” and all “negligence” means is “carelessness.” In preparing for this trial I filed a Motion in Limine, which is a particular type of motion that seeks to limit the type of evidence that a jury is allowed to hear at trial. Part of my Motion in Limine is to prohibit argument or the charging of the jury on what is known in Georgia Law as the “presumption of due care.” It is a law that says doctors in Georgia are presumed to have used “due care” in their treatment of a patient, even though they are now being sued for it.
This strikes me as fundmentally unfair. No other Georgia citizen gets the benefit of a presumption by the jury that he or she exercised “due care.” This is even more unfair given the fact that to file a lawsuit against a Georgia doctor you have to attach to the Complaint an Affidavit by another doctor that says the Georgia doctor did, in face, commit malpractice, i.e., did not exercise due care. Presumption rebutted! Already!
Here is a portion of my Motion in Limine on the unfair “presumption of due care.”
Defense counsel may attempt to argue
or otherwise introduce before the jury reference to a “presumption of due
care” afforded to the medical profession. Such argument would be
improper, unduly prejudicial and highly confusing to the jury.
Unlike the presumption of innocence and other constitutional
presumptions, the presumption of due care that was once afforded to
medical practitioners, is nothing more than a rebuttable evidentiary
presumption that finds its roots in pre-Civil Practice Act case law. The
adoption of O.C.G.A. § 9-11-9.1 requiring an Affidavit to be filed with a
complaint alleging medical negligence rendered the presumption of due
care extinct because the presumption is rebutted from the outset of the
case. It would be misleading and incorrect for the jury to be told about a
presumption, which is essentially an evidentiary threshold, when the
presumption had already been rebutted.
The presumption of due care is an evidentiary threshold for
determination by the Court as to whether expert testimony is
present to allow the case to proceed to jury resolution and
verdict or whether non-suit or directed verdict is required based upon
the absence of expert testimony, thereby allowing the presumption to
remain in effect and requiring Plaintiffs’ case to be dismissed for failure
to raise an issue for the jury to determine.
Plaintiffs submits in support of her Motion the case of
Killingsworth v. Poon, 167 Ga. App. 653, 307 S.E.2d 123 (1983). In this
case, the Court addressed the presumption of due care and the
evidentiary proof needed to overcome and thereby render such
presumption no longer in force and effect.
In Killingsworth, the Court acknowledged that the presumption
was set as an evidentiary standard for submission of a case to the jury. In
that case, the plaintiff did not have expert testimony to overcome the
presumption. Nevertheless, the plaintiff was held to have overcome the
presumption because the facts of the case fit within an exception to the
requirement that expert opinion be presented to establish the
violation of the standard of care. Rather, the facts of some cases are
within the common knowledge of jurors and of such a nature as to allow
the jury to find negligence even in the absence of expert testimony.
In Killingsworth, the Court reversed the trial court’s grant of
summary judgment. In so doing, the Court rejected the defense
contention that the presumption of due care remained in force so that
summary judgment was required because of the absence of expert
testimony. The concurring opinion recognizes the effect of the majority
opinion but states the view that the presumption remains for jury
consideration. The majority, by allowing the jury to reach a verdict for
the plaintiff at trial, through its holding, rejected such a notion.
The Court should not allow references to such evidentiary rule,
especially in voir dire or opening statement, in that it gives the jury the erroneous view that the
Plaintiff must prove her case beyond a reasonable doubt and that the jurors are expected to view
the testimony presented in Plaintiff’s case-in-chief, including the Plaintiff’s expert testimony,
with a false and erroneous evidentiary burden higher than the
greater weight of the evidence, which is the proper and only burden of
proof. Any reference to the presumption of due care without mentioning that the presumption
has already been overcome by expert testimony is further misleading to the jury
and pre-judges Plaintiff’s presentation of evidence from the outset of trial.
The Court, not the jury, is given the responsibility to determine
whether the Plaintiff has made out the elements of the case to submit the case to the jury or direct
a verdict to the Defendants.
Either Plaintiff has overcome through expert testimony or otherwise
the presumption or has failed to do so. The sufficiency of the evidence
for directed verdict is a matter for the Court to decide, not the jury. The jury should not charged
on a presumption that Plaintiff has already rebutted.
Plaintiff also challenges and objects to the use of the presumption of due care
rule by the jury either by the jury charge of the Court or otherwise, in
that it is unconstitutional and violates the due process and equal
protection clauses of the United States Constitution and the Constitution
of the State of Georgia in that it favors and protects a class of people, namely, the
medical profession, without a compelling or rational basis in law or fact
and no other class of persons is afforded such special privilege.