STATEMENT OF INTEREST OF AMICUS CURIAE

The Georgia Trial Lawyers Association, comprised of over 2000 members of the State Bar of Georgia, is a voluntary organization whose clients have an interest in this Court's rulings on the important issues presented by this appeal. Over the years the GTLA has consistently appeared as a neutral Amicus Curiae in various matters before the state and federal courts in Georgia. The intent of the GTLA is not to support either the Petitioner or Respondent, but to aid the Court to a proper resolution of this case in determining whether it is proper to charge in a medical malpractice case that the plaintiff cannot recover unless he establishes "within a reasonable degree of medical certainty by a preponderance of the evidence that the alleged damages were proximately caused by the defendant's negligence." Zwiren v. Thompson, 254 Ga. App. 204 (2002).

SUMMARY OF CASE AND ARGUMENT

The issue before this Court is whether a medical negligence plaintiff is held to a higher burden of proof on the issue of causation than a plaintiff in any other negligence case. It is the position o f the GTLA Amicus that Georgia law does not require a medical malpractice plaintiff to establish to a "reasonable degree of medical certainty" that the physician's negligence caused the injury. To the contrary, Georgia cases demonstrate that a medical negligence plaintiff, like any other negligence plaintiff, must establish causation to the jury by a "reasonable probability." Reasonable probability means the preponderance of evidence. A charge that that plaintiff cannot recover unless he or she demonstrates "within a reasonable degree of medical certainty by a preponderance of the evidence that the alleged damages were proximately caused by the defendant's negligence" is contradictory, inherently prejudicial and erroneous.

In a non-medical negligence case the law is well established that a plaintiff must prove causation by "a probability rather than merely a possibility that the alleged negligence caused the injury." Sanders v. Cowart, 231 Ga. App. 303, 304 (1998). This burden reflects the preponderance of evidence standard of proof in a civil case. Consequently, in an "ordinary" negligence case where the plaintiff chooses to prove causation by expert medical testimony, it is error to charge the jury that the plaintiff must show "within a reasonable degree of medical certainty that the injury was the result of the defendant's negligence," because the plaintiff's burden is to prove causation by a reasonable probability or preponderance of evidence. Herr v. Withers, 237 Ga. App. 420 (1999).

In a medical malpractice case there must be expert medical testimony of causation because that issue is usually beyond the knowledge and understanding of the ordinary lay juror. Pilzer v. Jones, 242 Ga. App. 198, 202 (2000). In such cases "the testimony sufficient to establish a causal connection must at least show there was a reasonable probability that the negligence caused the injury." 242 Ga. App. at 202; emphasis supplied. Thus, while the burden of producing evidence on the issue of injury causation may differ in an "ordinary" negligence case and a medical negligence case, the burden of persuasion does not. The burden of persuasion in all negligence cases is carried by evidence showing a reasonable probability, not certainty.

It is wrong to subject medical negligence plaintiffs to a heavier burden of persuasion, that is, to prove causation to a "reasonable degree of medical certainty." The GTLA Amicus submits that there is neither authority nor justification for holding medical malpractice plaintiffs to this impossible burden. The notion, reflected in some Georgia cases, that in "addition" to proving causation by a reasonable possibility a medical malpractice plaintiff must prove causation to a "reasonable degree of medical certainty" erroneously crept into the law when the Georgia Court of Appeals misinterpreted some of its own decisions.⁽¹⁾ This erroneous notion has been recited by rote in subsequent Court of Appeals' cases without analysis. It is inconsistent with the standards of "reasonable probability" and "preponderance of evidence" that apply to proof of causation in all negligence cases. To a lay juror, the concept of "medical certainty" is inconsistent with "medical probability" or "preponderance of the evidence." Charging the jury that it must use competing, inconsistent standards to determine whether a plaintiff has met the burden of proving medical injury causation is inherently prejudicial and contrary to Georgia law.

Amicus respectfully requests that this Court affirm the decision in Zwiren v. Thompson, 254 Ga. App. 204 (2002), make clear that a medical malpractice plaintiff has no "additional" burden to prove causation by a "reasonable degree of medical certainty," disapprove the charge in this case, and hold that in all negligence cases a plaintiff is required to present a preponderance of evidence satisfying the jury within a reasonable probability that the injury was caused by the defendant's negligence.

ARGUMENT AND CITATION OF AUTHORITY

I. In an 'ordinary' negligence case Georgia law requires the plaintiff to prove causation by a preponderance of the evidence.

Georgia law requires a plaintiff in an "ordinary" negligence case, that is, any negligence case other than medical negligence, to prove by a preponderance of the evidence that the defendant's negligence proximately caused his injury. Herr v. Withers, 237 Ga. App. 420, 515 SE2d 174 (1999); Patillo v. Thompson, 106 Ga. App. 808, 811, 128 SE2d 656 (1962). The plaintiff is required to establish causation by showing "a probability rather than merely a possibility that the alleged negligence caused the injury." Sanders v. Cowart , 231 Ga. App. 303, 304, 499 SE2d 103 (1998). This is consistent with the statutory definition of preponderance of evidence.

OCGA § 24-1-1 (5) provides, "'Preponderance of evidence'" means 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." The Suggested Pattern Jury Instructions mirror the statute by defining preponderance of evidence as "sufficient to incline a reasonable and impartial mind to one side of the issue, rather than to the other," but it "need not be enough to completely free the mind from a reasonable doubt."⁽²⁾ The pattern charge instructs the jury that the concept of preponderance of evidence is

"easier to understand if you will imagine a set of scales, and since this is a courtroom, we should use the 'scales of justice.' To satisfy the burden of proof by a preponderance of the evidence, the scales must tilt or incline to one side, not all the way but there must be a definite tilt. If the scales are evenly balanced or are going back and forth with no real tilt, then the burden of proof by a preponderance of evidence could not be satisfied and you would have to find against the party that had the burden of proving that issue."⁽³⁾ (Emphasis supplied.)

The "preponderance of evidence" standard does not require the plaintiff to present evidence that is "stronger" than the evidence of the defendant in order to prevail. Danforth v. Danforth, 156 Ga. App. 236 (3), 274 SE2d 628 (1980) (error to charge that preponderance of evidence is that which "a reasonable and impartial mind would believe is stronger than the evidence of the defendant.") Nor does it require the plaintiff to present evidence that is "certain." Sanders v. Cowart , 231 Ga. App. 303, 304, 499 SE2d 103 (1998). The preponderance of evidence standard requires only that the plaintiff present evidence sufficient to "tilt the scales" in order to prevail. If the plaintiff's proof of causation is built on "mere possibilities or the matter remains one of pure speculation or conjecture or the probabilities are evenly balanced," the plaintiff has not "tilted the scales" and cannot recover. Patrick v. Macon Housing Auth., 250 Ga. App. 806, 809, 552 SE2d 455 (2001).

In "ordinary" negligence cases where the plaintiff chooses to establish causation by expert medical testimony, it is error to charge to charge the jury that "it must be shown within a reasonable degree of medical certainty that the injury was the result of the defendant's negligence." Herr v. Withers, 237 Ga. App. 420, 515 SE2d 174 (1999) (emphasis supplied).⁽⁴⁾ The Court of Appeals recognized in Herr that the element of causation in a negligence action is required to be proved by no more than a preponderance of the evidence. The Court correctly held "[u]nquestionably, that well-recognized standard [of proof] for civil cases is not the functional equivalent of requiring certainty." 237 Ga. App. at 421.

II. The correct standard in a medical malpractice case requires the plaintiff to prove causation by a preponderance of the evidence, not certainty.

To recover in a medical malpractice action the plaintiff must establish three elements: 1) a physician-patient relationship out of which the physician's duty arises; 2) the physician's breach of that duty by failing to exercise the requisite standard of care; and 3) that the physician's breach of duty proximately caused the plaintiff's injury. Grantham v. Amin, 221 Ga. App. 458, 459, 471 SE2d 525 (1996); OCGA § 51-1-27. These elements--duty, breach of it and causation--must be proved to authorize a recovery in every negligence case.

"[I]t is axiomatic that questions regarding proximate cause are 'undeniably a jury question' and may only be determined by the courts in 'plain and undisputed' cases." Ontario Sewing Machine Co. v. Smith, S01G1233 (Decided November 12, 2002), slip op. at 6; Atlanta Obstetrical and Gynecology Group v. Coleman, 260 Ga. 569, 398 SE2d 16 (1999). A medical negligence plaintiff bears the burden of proving causation by "sufficient evidence that the physician's alleged failure to use the requisite degree of skill and diligence in treatment either proximately caused or contributed to the plaintiff's injury." Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 505 SE2d 232 (1998). Because most medical negligence issues are outside the jury's understanding, the plaintiff must offer expert medical testimony on the issue of causation. Pilzer v. Jones, 242 Ga. App. 198, 202, 529 SE2d 205 (2000). The medical expert's testimony "must at least show there was a reasonable probability that the negligence caused the injury." Pilzer, 242 Ga. App. at 202; Cannon v. Jeffries, 250 Ga. App. 371, 373, 551 SE2d 777 (2001); Estate of Patterson, 233 Ga. App. at 708. "A bare possibility of such result is not sufficient."⁽⁵⁾ Groggin v. Goldman, 209 Ga. App. 251, 253, 433 SE2d 85 (1993); Dowling v. Lopez, 211 Ga. App. 578, 580, 440 SE2d 205 (1993). This, of course, reflects the preponderance of evidence standard applicable in all negligence cases. Sanders v. Cowart, 231 Ga. App. 303, 304, 499 SE2d 103 (1998). This standard is also consistent with the suggested pattern charge that in "determining where the preponderance of evidence lies and the credibility of witnesses," it may consider "the probability or improbability" of the testimony of witnesses, including expert witnesses.⁽⁶⁾

A medical malpractice plaintiff's burden of persuasion to prove causation by a preponderance of the evidence should not be confused with the burden of producing evidence of causation by expert medical testimony. Expert medical testimony is required because the issue of whether the physician deviated from the standard of care and whether that deviation resulted in the plaintiff's injury is beyond the knowledge and understanding of the ordinary lay juror. But where the preponderance of the evidence lies in any given case--that is, whether the scales have tilted--is a matter well within the province of the jury.

There is no requirement in Georgia law, and Dr. Zwiren has cited none to this Court, that a medical expert must opine to a "reasonable degree of medical certainty" that the defendant's negligence caused the plaintiff's injury. Instead the requirement that the expert testify to a reasonable probability of causation recognizes that "medicine is an inexact science" from which neither the courts nor the community can demand certainty. Atlanta Obstetrics & Gynceology Group v. Abelson, 195 Ga. App. 274, 392 SE2d 916 (1990), aff'd in part, rev'd in part on other ground, 260 Ga. 711 (1990).

Dr. Zwiren nonetheless argues that a medical malpractice plaintiff has an "additional" burden to prove to a "reasonable medical degree of certainty" that but for the physician's negligence the injury or death could have been avoided. Such an evidentiary burden is inconsistent with a medical malpractice plaintiff's burden to prove his case by a preponderance of the evidence--that is, by tilting the scales.

There is no statutory authority or decision by this Court to support Dr. Zwiren's proposition that a plaintiff's burden in a medical negligence case is greater than a plaintiff's burden in any other negligence case. The burdens are the same. Likewise, neither this Court nor the General Assembly has authorized charging the jury that a plaintiff in a medical negligence case must prove causation "to a reasonable degree of medical certainty,"⁽⁷⁾ or "within a reasonable degree of medical certainty as proven by a preponderance of the evidence."

The "reasonable degree of medical certainty" language was erroneously elevated to a potential evidentiary burden when the Court of Appeals misinterpreted language in Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 243 SE2d 269 (1978) and Richmond County Hosp. Auth. v. Dickerson, 182 Ga. App. 601, 356 SE2d 548 (1987). That misinterpretation has been perpetuated and recited by rote in subsequent Court of Appeals decisions on which Dr. Zwiren relies to urge the propriety of the charge in this case. However, even the cases Dr. Zwiren relies on do not hold it is proper to instruct the jury that the plaintiff must prove causation by a reasonable degree of medical certainty because they do not involve challenges to jury instructions. Instead, those cases involve whether or not motions for summary judgment, directed verdict and JNOV were correctly decided.⁽⁸⁾

III. The history of "reasonable degree of medical certainty."

A. In an 'ordinary' negligence case in which causation is established by expert medical testimony it is impermissible to require or charge the jury that causation must be proved to a "reasonable degree of medical certainty."

The first time the "reasonable degree of medical certainty,"⁽⁹⁾ language appeared in an 'ordinary' negligence case was in Womack v St. Joseph's Hosp. Inc., 131 Ga. App. 63, 205 SE2d 72 (1974). There a patient sued the hospital after he slipped and fell in a hospital bathtub, alleging that a safety rail adjoining the bathtub was defectively installed. The trial court charged the jury that in order for the plaintiff to recover he must show "within a reasonable degree of medical certainty that the injury was the result of the defendant's negligence." The plaintiff did not object to this charge on grounds relating to his burden of proving causation, but solely on the ground that the expert testimony of the defendant should not have been admitted. The Court of Appeals affirmed the defense verdict without addressing the propriety of the burden the charge imposed on the plaintiff.

Twenty-five years later Herr v. Withers, 237 Ga. App. 420, 421, 515 SE2d 174 (1999), expressly disapproved the charge in Womack because a plaintiff in a negligence action is not required to prove causation by certainty, but by a preponderance of the evidence.⁽¹⁰⁾

B. The misapplication of the "reasonable degree of medical certainty" standard to medical malpractice cases.

The first reference to "reasonable degree of medical certainty" in a medical malpractice case occurred in Parrott v. Chatham Co. Hosp. Auth, 145 Ga. App. 113, 243 SE2d 269 (1978). Parrott sued the hospital and an emergency room physician for failing to timely diagnose and treat his fractured skull. He was treated five days later and sustained no permanent injury, but sued for unnecessary pain and suffering. The trial court granted the defendants' motion for directed verdict and the Court of Appeals affirmed.

The Court of Appeals noted that Parrott had presented no medical evidence at trial to show that had he been treated in the emergency room his pain would have been any less than what he actually suffered. In resolving the issue of remoteness of damages against the plaintiff, the Court stated,

"We think the case of Watson v. United States, 346 F2d 52 (5^th Cir. 1965) is more apposite here. This was an action under the Federal Tort Claims Act arising out of the alleged malpractice of a government physician in Georgia, which held that under Georgia law (Code Ann. § 84-924) the record sustained the trial court's determination that even if there was a failure to discover the arteriosclerotic condition of the plaintiff's leg, there was no showing to any reasonable degree of medical certainty that the loss of the leg could have been avoided." 245 Ga. App. at 115.

The Parrott Court quoted but did not address or analyze the "reasonable degree of medical certainty" language in Watson. It simply noted that the non-binding holding in Watson was consistent with the majority rule that evidence showing a "bare possibility" that the physician's negligence caused the patient's injury is insufficient.⁽¹¹⁾

The Parrott Court held,

"The Watson case is in accord with the general rule from other jurisdictions, that the fact 'that a physician may have been negligent is not sufficient to render him liable and the complaining patient must prove that the injury complained of proximately resulted from such want of care of skill. A bare possibility of such result is not sufficient.' 61 AmJur2d 348, Physicians, Surgeons, and Other Healers, § 210, and cases cited. Thus a plaintiff cannot recover for malpractice 'where there is not sufficient evidence that such physician's alleged failure to use the requisite degree of skill and diligence in treatment either proximately caused or contributed to cause plaintiff additional suffering.'" 145 Ga. App. at 270-271.

Thus Parrott stands solely for the proposition that in a medical malpractice case proof of a "bare possibility" that the defendant's negligence caused the injury is insufficient to establish causation as a matter of law. This rule is applicable to all negligence cases. See Division I.

Parrott did not impose a new burden on a medical malpractice plaintiff to convince the jury to a "reasonable degree of medical certainty" that the physician's negligence caused the injury. Further, Watson v. United States, on which Parrott relied, did not hold that a plaintiff is required to persuade the jury to a "reasonable degree of medical certainty" that his injury was caused by the defendant's malpractice. The Fifth Circuit did not analyze or cite any authority for its use of the language "reasonable degree of medical certainty." In Watson the Fifth Circuit simply upheld the district court's grant of summary judgment to the government, observing that even if the physician had performed a bypass graft at the time the plaintiff alleged the failure to diagnose occurred,

"there would have been, to a reasonable degree of medical certainty, no greater likelihood of success of this operation, nor would there have been, to a reasonable degree of medical certainty, any benefit derived by plaintiff through the use of conservative treatment even if same were to have been initiated [at the time of misdiagnosis." (Emphasis supplied.)

Both Watson and Parrott addressed situations in which the evidence showed a mere possibility that the physician's negligence caused the plaintiff's injury, and for that reason the plaintiff failed as a matter of law to present evidence from which a jury could find causation under the preponderance of the evidence standard. Both Watson and Parrott are consistent with the requirement that in every negligence case the plaintiff must present evidence authorizing the jury to find that the preponderance of the evidence establishes causation. That is, the plaintiff must present evidence authorizing the jury to find it is reasonably probable that the defendant's negligence caused the plaintiff's injury.

For the next nine years the Court of Appeals cited Parrott for its correct holding: that a plaintiff in a medical malpractice action bears the burden of producing evidence that it is more likely than not the physician's negligence proximately caused his injury, and that evidence showing a "bare possibility" that the physician's negligence caused the injury is not enough to carry this burden.⁽¹²⁾

The notion that a plaintiff has an "additional" burden to prove causation by a "reasonable degree of medical certainty" arose from dicta in Richmond County Hosp. Auth. v. Dickerson, 182 Ga. App. 601, 356 SE2d 548 (1987). In Dickerson the patient was taken to the hospital where she died awaiting treatment. The patient's family sued and the hospital moved for summary judgment. There was an issue of fact regarding whether the patient declined surgery or was not informed of the necessity of surgery, but the hospital argued it was nonetheless entitled to summary judgment because it had offered expert medical testimony that the patient's chance of survival, even with surgery, was less than 50%. Relying on Parrott and Watson, the hospital maintained that the patient's family had not overcome this evidence, and thus had failed to establish a causal connection between any negligence and the patient's death. The Court of Appeals affirmed the denial of summary judgment to the hospital, holding that the hospital had not carried its burden because "proximate cause is not eliminated by merely establishing by expert opinion that the patient had less than a fifty percent chance of survival had the negligence not occurred." The hospital was not entitled to summary judgment because the "record does not establish that the actions or inactions of the hospital staff were not a proximate or contributing cause of Mrs. Dickerson's death." 182 Ga. App. at 603. Additionally, the Court of Appeals held that Parrott and Watson did not support the hospital's position. 182 Ga. App. at 602. However, the Court of Appeals made the following statement:

"The sole Georgia case relied upon, Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115, 243 S.E.2d 269 (1978), "stands for the general proposition that negligence alone is not sufficient to impose liability, for "the complaining patient must prove that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient." In addition to this well recognized principle this Court added language found in Watson v. United States, 346 F.2d 52 (5th Cir., 1965), that there could be no recovery for medical negligence involving the loss of the patient's leg where there was "no showing to any reasonable degree of medical certainty that the loss ... could have been avoided." 182 Ga. App. at 602; emphasis supplied.

It is clear that the Dickerson court was not adopting "reasonable degree of medical certainty" as an evidentiary burden in medical malpractice cases. Dickerson simply held that the hospital failed to establish that an essential element of the plaintiff's claim was lacking, that the actions or inactions of its employees were not either a proximate or contributing cause to the patient's death. However, the mischief that is in the charge before this Court arose from the dicta in Dickerson that "in addition" to well-settled language regarding proof of proximate cause the Parrott case "added language found in Watson…that there could be no recovery for medical negligence involving the loss of the patient's leg where there was "no showing to any reasonable degree of medical certainty that the loss ... could have been avoided." 182 Ga. App. at 602.

Subsequent Court of Appeals cases have misapplied this dicta from Dickerson without analysis, and have cited Parrott for authority that a plaintiff in a medical malpractice case has an "additional" burden to prove causation by showing to a "reasonable degree of medical certainty that the injury could have been avoided" had the physician not been negligent. These decisions, along with Parrott and Dickerson, are the authority on which Dr. Zwiren relies to urge the propriety of the jury charge in this case. (Dr. Zwiren's brief, pp. 8-10.) See, e.g., Goggin v. Goldman, 209 Ga. App. 251, 253, 433 SE2d 85 (1993) ("Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from the want of care or skill. A bare possibility of such result is not sufficient. [Cits.] Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided. Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115, 243 SE2d 269 (1978)." (Emphasis supplied); and Grantham v. Amin, 221 Ga. App. 458, 459, 471 SE2d 525 (1996) ("Negligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient proximately resulted from such want of care of skill. A bare possibility of such result is not sufficient. [Cit.] Further, there can be no recovery in a wrongful death action based on medical negligence where there is no showing to any reasonable degree of medical certainty that the patient's death could have been avoided. [Cit.] Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115,243 SE2d 269)(1978)." (Emphasis supplied)).⁽¹³⁾

Although the Court of Appeals has not recognized that it is mistaken in perpetuating this erroneous rule, it has recognized the inherent unfairness of placing an "additional" burden on a plaintiff to prove a causal connection between medical negligence and injury by a "reasonable degree of medical certainty," holding that this phrase "is neither magic nor particularly helpful…What courts and juries need from medical experts is not a simple recitation of these words, but a realistic assessment of the likelihood that the alleged negligence caused the injury or death." Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609, 484 SE2d 257 (1997); Cannon v. Jeffries, 250 Ga. App. 371, 373, 551 SE2d 777 (2000); Estate of Patterson, 233 Ga. App. 706, 505 SE2d 232 (1998). Accordingly, even prior to its decision in Zwiren v. Thompson, 254 Ga. App. 204, 561 SE2d 492 (2002), the Court of Appeals held that "reasonable medical probability" is the correct standard that establishes this likelihood, and that it is the equivalent of "preponderance of the evidence." Estate of Patterson, 233 Ga. App. at 708.

Notably, every case urged by Dr. Zwiren in support of the charge given in this case was decided on motion for summary judgment,⁽¹⁴⁾ motion for directed verdict,⁽¹⁵⁾ or motion for judgment notwithstanding the verdict.⁽¹⁶⁾ The trial courts deciding these motions and the appellate courts reviewing them are presumed to understand the law and to apply legal principles correctly. In deciding a motion for summary judgment, a motion for directed verdict, or a motion for JNOV a court is not weighing evidence or deciding which side has carried the burden of persuasion. In those contexts, the court is simply determining whether there is evidence on both sides of the issue for the trier of fact to weigh and decide where the preponderance lies. Accordingly, these cases provide no support for Dr. Zwiren's contention that the trial court's jury charge was proper.

Dr. Zwiren's reliance on foreign authority is also misplaced. (See Zwiren brief, pp. 11; 14.) None of the foreign cases cited involved a charge to the jury that included the "reasonable degree of medical certainty" language, nor did any involve a charge requiring proof of causation to a "certainty." None of these cases even address the propriety of charging "reasonable medical certainty" language to the jury.

However, Dr. Zwiren does correctly point out that many states use the "reasonable degree of medical certainty" language interchangeably with "reasonable probability" or "medical probability." But the fact that states, including Georgia, may have been careless in their usage of these phrases does not lend support for the charge in this case. It in fact proves the contrary. If the phrases are synonymous, then a jury should be charged on "reasonable probability" which is correct and easily understood by lay persons, not "reasonable degree of medical certainty" which, taken literally, is incorrect and easily misunderstood by lay persons. Dr. Zwiren has not cited, and Amicus has not been able to find any case in this country where the jury was instructed that the plaintiff could not recover unless he proved "within a reasonable degree of medical certainty as proven by a preponderance of the evidence that the alleged damages were proximately caused by the defendant's negligence."

Problems creep into the law through inartful use of language, and the transportation of language from one context to another without consideration of the audience. Terms such as "reasonable degree of medical certainty," "reasonable medical probability," and "preponderance of the evidence" may arguably be interchangeable terms of legal art for judges and lawyers, but they are not for lay jurors. In deciding motions for summary judgment, directed verdict, and JNOV, a court may be able to reach the right result despite conflicting terms that appear in the cases because it knows that the conflicting terms have been recognized, somewhat inexplicably, to be synonymous. In some instances the inconsistency may conceivably be harmless. If a plaintiff has produced no evidence other than the bare possibility that the defendant's malpractice caused the injury, it makes no difference what the plaintiff's burden is, because the plaintiff has not carried it under any standard. However, if the court decides the case on motion in favor of the physician because it tacitly determines that the plaintiff failed to prove to a reasonable degree of medical certainty that the physician's negligence caused the injury, great harm has been done, to the plaintiff and to the law. Because some courts may be confounded by the "addition" of this inconsistent burden, cases which state that a plaintiff has an "additional" burden to prove medical injury causation by a "reasonable degree of medical certainty" should be disapproved.

But in no circumstances can a jury be expected to reconcile and properly apply antagonistic burdens such as "reasonable degree of medical certainty" and "preponderance of evidence." The former suggests an absolute burden of persuasion leaving no doubt. The latter, when explained, means the plaintiff must persuade the jury his claim is more likely so than not so--that he has titled the scales. But both cannot be the standard by which a medical malpractice plaintiff is required to convince the jury he has established legal causation. For that reason, instructing a jury as to both burdens is harmful, reversible error.

A charge that tells the jury that the plaintiff must present expert testimony proving causation to a "reasonable degree of medical certainty" is inherently prejudicial. There is a presumption that qualified jurors under oath will follow the instructions of the trial court. Pilzer v. Jones, 242 Ga. App. 198, 202, 529 SE2d 205 (2000). A reasonable and intelligent juror will interpret a standard of proof that requires "certainty" to mean just that--proof that is absolute and without doubt. Such a burden of proof is more akin to the "beyond a reasonable doubt" burden imposed on the state in criminal cases than it is to the "tilting of the scales" preponderance of evidence standard imposed on a plaintiff in ordinary negligence cases. There is no justification or authority for placing an additional--and higher--burden of persuasion on plaintiffs in medical malpractice cases than in any other civil personal injury case.

Further, imposing on the plaintiff a burden of persuading couched in such absolutism is inconsistent with the law's long-standing recognition that "medicine is an inexact science." Atlanta Obstetrics & Gynecology Group, P.A. v. Abelson, 195 Ga. App. 274, 392 S.E.2d 916 (1990), aff'd in part, rev'd in part, 260 Ga. 711, 398 S.E.2d 557 (1990); Landers v. Georgia Baptist Medical Center, 175 Ga. App. 500, 333 S.E.2d 884 (1985).⁽¹⁷⁾ Because medicine is an inexact science, a charge that requires a plaintiff to prove injury was caused by the defendant's negligence to a "reasonable medical certainty" requires a plaintiff to do the impossible, which the law requires of no person. Travelers Ins. Co. v. Linn, 235 Ga. App. 641, 645, 510 S.E.2d 139 (1998).

In this case Dr. Zwiren requested the trial court to charge the jury "in order for the plaintiff to show a medical cause and effect relationship, she must present expert medical testimony showing that, within a reasonable degree of medical certainty, the injury in question was proximately caused by the negligence of Dr. Zwiren…If you find that the plaintiff has not proved to a reasonable degree of medical certainty that her alleged damages were proximately caused by Dr. Zwiren's alleged neglect, then you must return a verdict for the defense."

This charge is incorrect as a matter of law. Upon objection by Ms. Thompson that this charge was contrary to the standard of "reasonable probability" or preponderance of evidence standard, the trial court instead charged that

"In order for the plaintiff to show a medical cause an effect relationship, plaintiff must present expert medical testimony showing that "within a reasonable degree of medical certainty as proven by a preponderance of the evidence that the injury on question was proximately caused by the negligence of the Defendant…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." (Dr.Zwiren's brief, pp 5-6.)

The trial court's modification of the requested charge was obviously an attempt to reconcile the erroneous standard "reasonable degree of medical certainty" with the proper standard of "preponderance of evidence." The charge illustrates the folly of instructing the jury on both standards. Even though it appears the court attempted to follow Court of Appeals' decisions and incorporate these inconsistent standards, the charge , at best, makes no sense. At worst it authorizes the jury to return a verdict based on an erroneous legal standard.

A plaintiff in any negligence action, including a medical malpractice action, must establish causation by a preponderance of the evidence. This means a "reasonable probability" that the negligence caused the injury. While this burden is not established by the "mere possibility" of a causal connection, there is no requirement to meet this burden by proof that the causal connection is "certain," especially since "medicine is an inexact science." The decisions on which Dr. Zwiren relies suggest that a medical malpractice plaintiff bears an "additional" burden of proving causation to a "reasonable degree of medical certainty" and should be disapproved.

CONCLUSION

The GTLA Amicus respectfully requests that this Court affirm the decision in Zwiren v. Thompson, 254 Ga. App. 204 (2002), disapprove those decisions that state a medical malpractice plaintiff has an "additional" burden to prove causation by a "reasonable degree of medical certainty," disapprove the charge in this case, and hold that in all negligence cases a plaintiff is required to present a preponderance of evidence satisfying the jury within a reasonable probability that the injury was caused by the defendant's negligence.

Respectfully submitted this 12^th day of November, 2002.

/s/ Antoinette D. Johnson

1. Language from Richmond County Hosp. Auth. v. Dickerson, 182 Ga. App. 601 (1987) in which the Court of Appeals cited Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113 (1978), has been misinterpreted, and has given rise to the erroneous rule that in "addition" to proving proximate cause, "there can be no recovery for medical negligence involving any injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided." Goggin g. Goldman, 209 Ga. App. 251, 253 (1993) (emphasis supplied).

2. The suggested charge provides "The term 'preponderance' means 'superior weight,' and as it is used here, 'preponderance of the evidence' means 'that superior weight of evidence upon the issues involved.' That weight of evidence, even though superior, need not be enough to completely free the mind from a reasonable doubt. But, to be a preponderance, the weight of the evidence must be sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other." Suggested Pattern Jury Instructions Vol. I: Civil Cases (3^rd ed.1991), pp. 3-4.

3. Suggested Pattern Jury Instructions, Vol. I, at 4; emphasis supplied.

4. See also, Levine v. Choi, 240 Ga. App. 384, 386-387, 522 SE2d 673 (1999) (Error to charge the jury "If you believe that from the evidence adduced that the cause of any injury or medical condition which may have been suffered by the plaintiff cannot be determined with certainty but that it is a matter of speculation or conjecture, then in that even you would not be authorized to find a verdict against the defendants in any amount for such injury or medical condition." However, error held harmless in context of entire charge.) (Emphasis supplied.)

5. However, a medical expert's testimony of "reasonable possibility" of causation coupled with other medical and non-medical evidence of causation may be sufficient to meet the reasonable probability, or preponderance of evidence, standard. Estate of Patterson, 233 Ga. App. at 708-709 (1998).

6. "In determining where the preponderance of evidence lies, and the credibility of witnesses, you may consider all the facts and circumstances of the case. You may consider the witnesses' manner of testifying; their intelligence; their means and opportunity for knowing the facts to which they testified; the nature of the facts they testify about; the probability or improbability of their testimony; their interest or lack of interest in the result of the case; their personal credibility so far as the same may appear from the trial." (Emphasis supplied.) Suggested Pattern Jury Instructions Vol I: Civil Cases (3^rd ed.1991), pp 4-5.

7. Gilbert v. RJ Taylor Mem. Hosp., 265 Ga. 580, 458 SE2d 341 (1995) is the only negligence case previously addressed by this Court that involved the "reasonable degree of medical certainty" language. In Gilbert this Court granted certiorari to the Court of Appeals to determine whether summary judgment had been properly granted to the defendant hospital. The plaintiff had a tumor removed in the hospital for a breast biopsy. A hospital employee lost the tumor prior to analysis and the plaintiff's physician recommended that she undergo a lumpectomy and radiation therapy in case cancer was present. The plaintiff sued and the Court of Appeals affirmed the grant of summary judgment to the hospital. The Court of Appeals held that the plaintiff failed to satisfy her burden on summary judgment of showing "within a reasonable degree of medical certainty" that she had cancer. 213 Ga. App. 104. This Court reversed, concluding that the real issue in the case was whether the hospital's negligence had caused the plaintiff to undergo unnecessary treatment, and consequently summary judgment was not proper. This Court did not address the propriety of the "reasonable degree of medical certainty" standard applied by the Court of Appeals.

8. These cases are categorized and cited by Amicus in Division III B, n. 14-16.

9. This language first appeared in Mutual Life Ins. Co. v. Childs, 64 Ga. App. 658, 14 SE2d 165 (1941) in which a physician sued his insurer to obtain benefits under a disability policy. The insurer's medical expert testified to his opinion that "to a reasonable degree of medical certainty" the plaintiff was not disabled. There is no indication this language was charged to the jury nor was there an issue on appeal regarding whether it constituted an appropriate criteria for establishing any element of the case or defense.

10. The Herr Court additionally overruled the progeny of Womack that had permitted similar charges in ordinary negligence cases. 237 Ga. App. at 421-422.

11. While federal authority is persuasive, it is not binding on Georgia courts. Delaney v. Lakeside Villa, Ltd., 210 Ga. App. 430, 431(3), 440 S.E.2d 668 (1993). It will generally be adopted only when it is not in conflict with Georgia legal precedent and is consistent with Georgia public policy goals. Russell v. Parkford Management Co., Inc., 235 Ga. App. 81, 508 S.E.2d 454 (1998).

12. See, Maddox v. Houston Co. Hosp. Auth., 158 Ga. App. 283, 279 SE2d 732 (1981); Jobson v. Dooley, 164 Ga. App. 440, 296 SE2d 388 (1982); Meeks v. Coan, 165 Ga. App. 731, 302 SE2d 418 (1983); Turner v. Malone, 176 Ga. App. 132, 335 SE2d 404 (1985); Macon-Bibb County Hosp. Auth. v. Ross, 176 Ga. App. 221, 335 SE2d 633 (1985); McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 336 SE2d 268 (1985).

13. Dr. Zwiren also relies on Anthony v. Chambless, 231 Ga. App. 657, 659, 500 SE2d 402 (1998); Cannon v. Jeffries, 250 Ga. App. 371, 373 551 SE2d 777 (2001); Dowling v. Lopez ¸ 211 Ga. App. 578, 440 SE2d 205 (1993); Roseberry v. Brooks 218 Ga. App. 202, 461 SE2d 262 (1995); and Abdul-Majeed v. Emory Univ. Hosp, 225 Ga. App. 608, 484 SE2d 257 (1997), overruled on other grounds in Thompson v. Ezor, 241 Ga. App. 275 (1999). These medical malpractice cases, like Goggin and Grantham, quoted above, recognize that the plaintiff is required to establish the physician's negligence proximately caused his injury, and that "a bare possibility of such result is not sufficient." Relying on Parrott, or one another, these cases then note that in order to recover the plaintiff is "additionally" required to show "to a reasonable degree of medical certainty" that the medical plaintiff's injury or death could have been avoided but for the physician's negligence.

14. Grantham v. Amin, 221 Ga. App. 458 (1996); Dowling v. Lopez, 211 Ga. App. 578 (1993); Cannon v. Jeffries, 250 Ga. App. 371 (2001); Anthony v. Chambless, 231 Ga. App. 657 (1998); Richmond County Hosp. Auth. v. Dickerson, 182 Ga. App. 601 (1987); Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (1997); Bowling v. Foster, 254 Ga. App. 374 (2002).

15. Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113 (1978).

16. Goggin v. Goldman, 209 Ga. App. 251 (1993).

17. In Blount v. Moore, 159 Ga. App. 80(1), 282 S.E.2d 720 (1981), the court disapproved the "inexact science" charge, and in Hawkins v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 301(1981) the court held giving the "inexact science" charge is reversible error.