# Zwiren v. Thompson > Supreme Court of Georgia · March 27, 2003 · 276 Ga. 498 URL: https://www.frixlaw.com/law-library/cases/9623754 ## Case - **Full name:** ZWIREN Et Al. v. THOMPSON - **Court:** Supreme Court of Georgia - **Decided:** March 27, 2003 - **Citations:** 276 Ga. 498; 2003 Fulton County D. Rep. 1110; 578 S.E.2d 862; 2003 Ga. LEXIS 307 - **Precedential status:** Published - **Opinion:** Dissent by Sears - **Judges:** Benham, Sears, Hunstein, Carley - **Cited by:** 127 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623754 ## How later opinions describe it (automated extraction) - explaining, in a medical malpractice case, that the “expert’s testimony must show as an evidentiary threshold that the expert’s opinion regarding causation is based, at the least, on the determination that there was a reasonable probability that the negligence caused the injur… - explaining that, in a medical malpractice case, Georgia caselaw “requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty” (emphasis supp… - rejecting the argument that a medical expert must state his causation opinion to a reasonable degree of medical certainty and instead holding that the proper standard is whether that opinion can be stated to a reasonable degree of medical probability; such an expert must “expr… - noting that the essential elements to establish liability in a medical malpractice action are "(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the … ## Opinion text Sears, Presiding Justice, dissenting. This case is much simpler than the majority makes it out to be. The trial court twice instructed the jury that in order to prove her case, the plaintiff was required to show “within a reasonable degree of medical certainty” that her injury was proximately caused by the defendant’s negligence. 6 This confusing and contradictory charge muddles the time-honored and simple equation that in order to prove causation, a medical malpractice plaintiff must bring forth expert testimony to establish only a reasonable probability that the alleged negligence caused the injury. 7 In medical malpractice cases, the plaintiff is required to bring forth expert evidence of causation which shows that “there was a reasonable probability that the negligence caused the injury.” 8 In this appeal, the charge at issue instructed that the plaintiff was required to bring forth a preponderance of evidence to establish causation to “a medical certainty.” As such, the charge clearly placed a greater evidentiary burden on the plaintiff, something which this Court has previously cautioned against in civil cases. 9 The majority attempts to obfuscate the greater burden placed on the plaintiff by reasoning that it is acceptable for a medical expert to opine that causation is shown to a medical certainty, but that the expert is not required to do so. 10 This analysis begs the question at the heart of this appeal: whether the trial court’s charge improperly *505 increased the quantum of evidence the plaintiff had to bring forth in order to prove causation. As explained above, by charging that the plaintiff had to show causation to a medical certainty, the trial court did increase her evidentiary burden. Furthermore, the charge at issue in this appeal is inherently confusing. The trial court twice instructed the jury that in order to prove her case, the plaintiff was required to show “within a reasonable degree of medical certainty as proven by a preponderance of the evidence” that her injury was proximately caused by the defendant’s negligence. 11 As discussed in the Court of Appeals’ opinion, these two terms are not analogous. “Certainty” is defined as “the state of being certain!, as in] the certainty of death”; 12 “a state of being free from doubt”; 13 and as something about which there is an “absence of doubt.” 14 “Preponderance of the evidence,” on the other hand, refers to the “superior weight of evidence . . . , which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable . . . mind to one side of the issue rather than to the other.” 15 Hence, the jury charge in this case instructed that in order to show proximate cause, the plaintiff was required to come forward both (1) with evidence that eliminated nearly all doubt, and (2) with evidence that did not erase all doubt, but simply inclined reasonable minds to decide in her favor. As we have previously held, “[a] charge containing two distinct propositions [that] conflict[ with each] other is calculated to leave the jury in such a confused condition of mind that they can not render an intelligible verdict, and requires the grant of a new trial.” 16 If ever there was a jury charge that set forth two conflicting and opposing legal standards, it is the charge at issue in this appeal. Because the charge on proximate cause in this medical malpractice action placed an improper evidentiary burden on the plaintiff, was inherently contradictory and undoubtedly confused the jury, I believe the Court of Appeals properly reversed the trial court’s denial of plaintiff’s motion for new trial, and the majority errs by reversing that decision. Therefore, I dissent. I am authorized to state that Justice Hunstein and Justice Carley join in this dissent. *506 Decided March 27, 2003 Reconsideration denied April 11,2003. Love, Willingham, Peters, Gilleland & Monyak, Robert P Monyak, Anna B. Fretwell, Lucas W. Andrews, for appellants. Peterson & Harris, Jim N. Peterson, Jr., for appellee. Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Taylor, Harp & Callier, John S. Taylor, Boone & Stone, William S. Stone, Antoinette D. Johnson, amici curiae. Op at 498. Pilzer v. Jones, 242 Ga. App. 198, 201 ( 529 SE2d 205 ) (2000); Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 ( 484 SE2d 257 ) (1997), overruled on other grounds, Ezor v. Thompson, 241 Ga. App. 275 ( 526 SE2d 609 ) (1999). Pilzer, 242 Ga. App. at 201 ; accord Abdul-Majeed, 225 Ga. App. at 609 ; Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 ( 345 SE2d 904 ) (1986); Maurer v. Chyatte, 173 Ga. App. 343, 344-345 ( 326 SE2d 543 ) (1985); National Dairy &c. Corp. v. Durham, 115 Ga. App. 420, 422 ( 154 SE2d 752 ) (1967). Dyer v. Souther, 274 Ga. 61, 62 ( 548 SE2d 1 ) (2001). Op. at 503. Op. at 498. American Heritage Dictionary of the English Language (3rd ed.), p. 312. Webster’s Ninth New Collegiate Dictionary (2nd ed.), p. 223. Black’s Law Dictionary (5th ed.), p. 205. OCGA § 24-1-1 (5). Clements v. Clements, 247 Ga. 787, 789 ( 279 SE2d 698 ) (1981). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623754. Public record. Not legal advice.