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The first two courts to look at the medical malpractice case Beach v. Lipham had little trouble deciding it. A Carroll County, Ga., jury in 2000 took just 15 minutes to deliver a verdict for the defendants, a doctor and medical center accused of negligently administering morphine and causing a woman brain damage. Last year a panel of the Georgia Court of Appeals dispatched the plaintiffs’ appeal in a two-paragraph, unpublished decision. But the Georgia Supreme Court has struggled mightily with the case. In May itdenied the plaintiffs’ petition for certiorari by a 6-1 vote. But, in a highly unusual move, last week the justices reversed course and decided unanimously to hear the matter. At issue is a common jury charge, used in the underlying trial, that Georgia law presumes that medical 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 v. Lipham, No. S02C0721 (Sup. Ct. Ga. July 26, 2002). Lawyers for the woman and her husband argued in court briefs that the jury charge is “highly prejudicial ” and “ grossly unfair ” by overemphasizing a plaintiff’s burden of proof. The plaintiffs’ lawyers also claimed that Georgia is the only state that allows such a jury charge. The plaintiffs have found support from two curious sources. Six former medical malpractice defense lawyers said in an amicus brief that they always thought the presumption charge was “one-sided.” And a University of Tennessee professor of English, law and linguistics submitted an affidavit claiming that in a recent survey, she found the language of the Georgia presumption charge misleading. Lawyers for the doctor and the hospital have responded that the presumption dates back to the time of Aristotle and is rooted in a 1957 state high court precedent. They took issue with the plaintiffs’ state-by-state analysis, pointing out that each state decides its standard of care and that at leastthree states have taken similar positions to Georgia’s on the presumption. Changing Georgia’s precedent would “radically uproot the law,” argued a lawyer for the doctor. The Medical Association of Georgia has filed an amicus brief supporting the defendants. Justice George H. Carley was the only dissenter in the first vote on certiorari,but it is not known how he persuaded his colleagues to change their minds. “To turn six people around is phenomenal,” said Antoinette D. Johnson, a former state high court clerk and a medical malpractice lawyer with Smolar, Sakas &Goodhart. She is not involved in the case. That the high court took the case at all was another example of the justices’apparent interest in settling disputes over medical malpractice cases. The court on June 21 unanimously granted certiorari in a case that will decidewhether plaintiffs should have to prove their injuries were caused by a defendant’s negligence “within a reasonable degree of medical certainty as proven by a preponderance of the evidence.” An appeals court panel decided in March that the term “medical probability ” should have replaced “ medicalcertainty” because “certainty ” was too high a standard. Thompson v. Zwiren, No.A01A1931 (Ga. Ct. App. March 12, 2002) ( Daily Report, March 22 and July 26,2002). PRESUMPTION CASE The case about presumption grew out of a suit by Mary Jo Beach and James W. Beach Jr. against Dr. Mark L. Lipham and Tanner Medical Center in Carrollton. In 1995, Lipham admitted Mary Jo Beach, then 51, to the center for treatment of pneumonia. The plaintiffs and their experts claimed that a series of strokes and othermajor problems that occurred within 16 hours of being admitted were caused by large doses of morphine and another drug administered by Lipham and insufficient monitoring by nurses. The defendants and their experts said their actions could not have caused Beach’s strokes and met the appropriate standard of care. After nearly nine days of trial, jurors from Carroll County Superior Court took only 15 minutes before announcing they agreed with the defendants. Representing the Beach couple, lead attorneys Foy R. Devine and Georgiana Rizkof Doffermyre Shields Canfield Knowles & Devine took the case to the Georgia Court of Appeals, but to no avail. Presiding Judge Edward H. Johnson and Judges John H. Ruffin Jr. and John J. Ellington rejected arguments that the presumption jury charge was unfair, misleading and in violation of equal protection guarantees by giving defendants the benefit of a presumption not available to defendants in other negligence actions. The decision was not reported, suggesting the judges thought the case wasroutine and therefore unnecessary to be binding precedent on the court. Beach v. Lipham, No. A01A2180 (Ga. Ct. App. Jan. 9, 2002). At the supreme court, Devine and Rizk argued that the key case cited by the appeals court, Shea v. Phillips, 213 Ga. 269 (1957), was inapplicable to their case because Shea did not deal with jury charges. In Shea, the high court upheld a trial judge’s decision to throw out a medicalmalpractice case because the plaintiff had not provided any expert testimony against the defendant. Citing common law that dates back 2,300 years to Aristotle, the court wrote, “[T]he presumption is that the medical or surgicalservices were performed in an ordinarily skillful manner and the burden is on the one receiving the services to show a want of due care, skill, and diligence.” Devine and Rizk argued that the high court has never approved the use of the presumption instruction and urged the court to settle the matter. Russell B. Davis and R. Chris Harrison of Downey & Cleveland represented Lipham. David H. Tisinger of Tisinger, Tisinger, Vance & Greer represented the medicalcenter. PROTECTING THE PROFESSION Davis and Harrison pointed out that as early as 1860, Georgia courts began to lay a foundation for the policy reasons supporting the presumption charge. They cited a case in which the state supreme court said that without a certain amount of discretion for medical professionals, fear of being sued “would drive from the profession many worthy men, or render them timid, where confidence and boldness are demanded.” Smith v. Overby, 30 Ga. 241 (1860). In an amicus brief by Robert P. Monyak of Love Willingham Peters Gilleland & Monyak, the Medical Association of Georgia pointed out that the presumption charge was one in a 20-page set of instructions, so it could not have “overemphasized ” the preponderance of the evidence burden of proof. A group of “former medical malpractice defense attorneys ” — Traci Green Courville,Wendy G. Huray, Carla R. Johnson, William U. Norwood, Robert D. Roll, Hezekiah Sistrunk and Jane Lamberti Sams — filed an amicus brief supporting the plaintiffs. Now plaintiffs’ lawyers, they said that when they were on the defense side and heard the presumption charge, they used to think, “‘There’s no way we can lose if the jury is listening to these one-sided instructions.’ This was true no matter how complex the issues or tragic the loss.” “When I read that, I laughed,” said Thomas S. Carlock, a medical malpracticedefense lawyer not involved in this case. He added he’s never comfortable when the jury goes out. The court voted 6-1 to deny certiorari, but Devine and Rizk asked the justices to reconsider. They summarized their argument — that Georgia was alone with its presumption charge, and the issue had never truly been addressed by the high court — and added an unusual wrinkle. They supplied an affidavit from Bethany K. Dumas, an English professor, linguist and lawyer from the University of Tennessee. At Devine’s request, Dumas examined the case. Her conclusion: The presumption charge “is almost certain to have had the effect of misleading individual jurors by causing them to think that the plaintiff’s burden in the case was greater than a preponderance of the evidence.” To support her argument, Dumas surveyed college students and people selected randomly at a shopping mall. She said in an interview that between 40 and 50 people participated. They were read the Georgia instruction, without any other information about the case, and asked whether they would find for the plaintiff or the defendant. “The added charge seems to have the effect of raising the bar,” Dumas added inthe interview. In response, Tisinger wrote for the medical center that there was no basis in the Georgia Code of the Supreme Court rules for supplementing the record and urged the court to disregard Dumas’ affidavit. Davis, Lipham’s lawyer, added that the plaintiffs’ analysis of other states’ laws regarding presumption charges was “an interesting exercise in the study of a particular area of the law,” but it showed nothing “that would require this Court to radically uproot the law and instructions given to juries in Georgia.” The court voted again on July 26 and decided it would hear the case in November. The court’s reversal, while extremely rare, is the second this year. In February, the justices unanimously reversed a 5-2 certiorari denial in a product liability case. Ontario Sewing Machine v. Smith, No. S01C1233 (Sup. Ct. Ga. Feb. 4, 2002) ( Daily Report, March 1, 2002).

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