*1 653 (h). regulation, istrative 45 CFR 302.56 § But this regulation the only administrative decision involved. The guidelines review of 42 USCA 667 § D, found in Part IV Subchapter of the Social Security Code. Under 42 (a) (8), USCA the United States Secretary Health and Human Services is to reduce a state’s if grant the state is not in com- with pliance D, Part but has the Secretary discretion to judge whether a state has “substantially D, with compl[ied]” Part and to disregard technical noncompliance with it. It is undisputed that Secretary has approved and Georgia’s certified plan and amend- (a) ments under USCA 602 and 652 and has taken no §§ action to reduce Georgia’s grant. such circumstances, courts typically defer to the “‘executive department’s construction of a statutory scheme it is entrusted to administer.’ Japan [Cit.]” Whaling Assn. American Cetacean Society, U. S. SC 92 LE2d 166) (1986). As the responsible federal agency executive has deter- mined that Georgia’s guidelines are conformity with the federаl statutory scheme, we will defer to that determination.
Accordingly, we find that the guidelines do not frustrate congressional stated purpose, the statute is not unconstitu- tional under the Supremacy Clause.
Judgment Fletcher, J., reversed. Sears, J., Benham, C. P. Corley, JJ., and Thompson, and Judge Stephanie Brodie Monis concur. Hun- stein, J, disqualified. —
Decided March 2004. Reconsideration denied March Schlueter, Childers, & Buck Schroyer, Brett A. for appellant. Daryl G. Lecroy, appellee. for
S03G0875. CRITSER et al. v. McFADDEN. Justice.
Carley, Mrs. Debra Critser suffers from bladder failure and “saddle numbness.” At all relevant times during litigation, it has been that her undisputed condition is attributable to either arachnoiditis or endometriosis. It is likewise without if dispute that she has arach- noiditis, possible cause is the administration of spinal injec- tions by Dr. Isaac McFadden in treating her for knee pain. Mrs. Critser and her suit, husband filed alleging that she has arach- noiditis trial, from At testified experts by producing plaintiffs. Dr. McFadden defеnded
on behalf of expert At the Mrs. Critser suffers from endometriosis. following charge: gave request defense, the trial court question you First, should consider the departed care, the standard of the defendant *2 you. you explain phrase If find that to as I will defendant depart standard of did not from the go you you wоuld return a care, then should no further you defend- of the defendant. If find verdict in favor you departed then con- care, would ant sider the second or omissions from the standard of question. question is whether the acts That proxi- departing the standard of care claiming. mately damages I will is caused meaning yоu cause. If further on the instruct alleged negligent you acts or omissions of find that the damages of the were not the cause defendant you you go no further and would return claimed, then would you If a verdict in favor of the defendant. find negligently acts or defendant acted omissions should then consider damages. and that those damages you proximately claimed, caused the issue, the third which is the amount of (Appellee) and, McFadden The on returned a verdict favor of Dr. Appeals appeal, error. found the instruction not to be the Court (2) (578 App. McFadden, 546, 547 SE2d Critser v. 259 Ga. granted a We certiorari to detеrmine whether the permissible jury state. instruction in a action jury charge correctly A the law should state (4) (123 Newman, 533, 217 534 issues in the case. v. Ga. Griffith 723) (1962). Appeals The Court of cited Johnson v.Ameri- SE2d Cross, 587, SE2d can Nat. Red 591 authority giving supporting instruction. Johnson sets as Bradley necessary negligence case. See also forth thе elements of a 693) (1982). However, Wessner, Center v. impose address those ele- does not any particular order. ments physician
“Whether a has used that required by generally question [OCGA 51-1-27] skill determining jury’s [Cits.] for the determination. .... jury may attendant facts issues, such consider all the light throw on the ultimate and circumstances which right quеstion. [Cits.] hear This includes the to evidence occurring facts after the alleged negligence as well as to happening prior where, facts thereto ...[.] ‘And measured method shown medical witnesses to be negligence, result, evidence shows a bad it is province to say whether the result was causеd by negligence.’” (Emphasis original.) 244) (1965).
Word v. Henderson, A charge which restricts the order for addressing constituent elements of a negligence claim can have the harmful effect of precluding from giving proper consideration to of the facts and cir- cumstances relevant to its ultimate determinatiоn. The disputed issue in this case is whether the cause of Mrs. Critser’s medical con- dition is Appellee’s professional negligence or endometriosis. The fact that she currently suffers from bladder failure and “saddle numb- ness” does not raise even a presumption of his care, lack of proper skill, or diligеnce. Hyles Cockrill, 124) (1983), overruled on other grounds, Howard, Ketchup
247 Ga. App. However, a physician is responsible for a patient’s condition which is shown to result from a failure to exercise that degree of care and skill ordinarily employed *3 by profession medical generally, under similar conditions and like surrounding circumstances. Prince, Brannen v. 204 Ga. App. overruled on other grounds, Gillis v. City Waycross, 247 Ga. App. of case, this the jury heard evidence injections, that if spinal negli- gently administered, can in result arachnoiditis and that Mrs. Critser suffers from that condition as the result of the pro- treatment vided by Thus, Appellee. there is evidence that she a experienced “bad which, result” according to the of applicable standard medical care, was attributable to professional Appellee’s negligence. How- ever, based upon the instruction the proximate that cause of the could injury nоt be considered Appellee’s unless of breach the stan- dard of established, care was first the jurors well have errone- ously that concluded the evidence that Mrs. Critser suffers from arachnoiditis was not a relevant factor in their determination as to whether he negligently injected her. “ A jury ‘must not chargе phrased be so so as to have the ten- dency to confuse and mislead the or to in becloud the issues case.’ [Cit.]” Baxter v. Wakefield, 259 Ga. App. 804) (2003). Jurors should be instructed they must find all of the elements of a negligence claim before in returning verdict favor of Thus, the plaintiff. court, a trial instructing regard to the оf alleged acts com- sought by recovery upon negligence which law
mon plaintiff, duty clearly that it is their inform should commit- or acts were the act not whether determine to same amounted committed, whether the also, if ted, but negligent acts negligence, act or such so, if and injuries. plaintiffs proximately caused Hughes Brown, jury that, in determin- not instruct
However, ing court should a trial proving that the of met the burden has whether the negligence it must cause of was a defendant’s address the various Accordingly, disap- we in a set order. elements charge prove in this case. that was recommen- no “there is concedes that The dissent the elements to consider instruct the a trial court dation that any particular “there is no order,” but concludes p. doing Dissent, in this case.” the unauthorized error, in so error, harmful much less charge giving support of the conclusion 657. In mistakenly that our here, assumes the dissent harmful error upon disapproval mere fact that Mrs. instruction is based following Appellee’s of her treatment result” a “bad Critser suffered holding today’s contrary, pain. not in however, does To the knee well-recognized principle long-standing way conflict with in medical mal- not res the doctrine of that practice Gеorgia. Instead, our conclusion that cases upon expert premised case is error constitutes reversible suffers is from which Mrs. Critser result” that the “bad Appellee’s arachnoiditis, condition resulted which spinal administration expert evidence this, in there is medical case,
In a such as which showing patient from a suffers from a condition physician’s care and skill used adhere to the failure to generally, profession authorized to find that the trier of fact is the the bad negligence. Henderson, Word result was caused testimony regarding expert supra Thus, at 849. *4 is a failure and “saddle numbness” Critser’s bladder
cause of Mrs. jury’s highly ultimate determination factor in the relevant requisite degree Appellee skill in the exercised proximate treating patient. arachnoiditis, he then If the cause his damages. resulting liable for the the standard and would be breached endometriosis, he then hand, the cause If, on the other for Mrs. he would not be liable the standard and did not breach Critser’s bladder failure informing By and “saddle numbness.” Appellee jury the standard breached that it must resolve whether considering Critser’s cause of Mrs. care before ever condition, however, given the instruction have the erroneous that that she has arachnoiditis did impression expert testimony whethеr he any bearing negligently not have on administered harmful, The error would be because it deprived to consider that she has opportunity expert from treatment of her an resulting Appellee’s arachnoiditis attendant fact and circumstance that he deviated from the showing Henderson, standard of care. Word v. at 849. The supra trial court should not have and the given misleading charge, entered the ver- Appeals affirming judgment Court erred on Appellee. dict returned favor of J., concur, Fletcher, reversed. All the Justices C.
Judgment except Hines, J., and who dissent. dissenting.
Hines, Justice, I respectfully dissent becаuse the instruction to the on negligence charge correctly the elements of The misleading. sets forth the that a demonstrate requirements negligence plaintiff legal duty defendant, on the the defendant’s breach of that part duty, a causal connection between such breach and the Johnsоn v. American Nat. Red damage plaintiff. (1) Cross, (2003); Johnson v. Ameri- Cross, can Nat. Red is no or that a trial court
While there recommendation any partic- instruct to consider the elements of order, error, error, no much so in doing ular there is less harmful this case. majority’s finding fatally misleading the instruction is was upon faulty precluded
is based conclusion that consideration to the of the facts and circum- giving “proper stances relevant to its ultimate determination.” This conclusion is premised upon finding plaintiff there was evidence that majority gives lip a “bad result.” The service to the experienced the fact that suffers from important legal principle plaintiff conditions, namely certain medical bladder failure and “saddle fails to raise even the of the defendant doc- presumption numbness” care, skill, reality, implicit tor’s lack of But in it is proper diligence. had a less- in the the fact that a has majority aрproach than-satisfactory outcome medical treatment establishes following when the evidence a “bad professional negligence. portrays Even result,” method shown medical must still be measured Stowers, negligence. Kapsch witnesses to be malpractice “Res *5 gen malpractiсe Georgia. case, “the Tn a medical in cases eral testimony introduced to must be rule is that treating proper jurors the method of inform particular what is a jury mea must have a standard ‘The . . . case. measuring they doc the acts of the use in are to sure which degree determining he exercised а reasonable whether in tor ” (Cits.)’ Horney Lawrence, and skill.’ of care 629) (1988). (2) (375 Expert must 376, 377 way deviated the defendant or in what also set forth how professional acceptable parameters conduct. of the from the (1987).” Loving Nash, 182 Ga. App. 704, 705 v.Kaufman, Austin (1992). jury inescapable Kapsch con- Thus, it is that the at 767 v.Stowers any departure applicable of the of care and standard sider the defendant from for action for medical gravamen a cause of is the of it such deviation jury negligence. otherwise, it would be Were solely upon sym- liability based to return a verdict of authorized by plaintiff pathetiс of the of medical treatment circumstances plaintiff. resulting damage defendant and holding majority with the does not conflict The states that its principle res the doctrine of well-settled malpractice does. The cases. But of course it in medical jury majority when it focuses on certain in the role of the casts itself by plaintiff expert testimony is a result” suffered that the “bad brought administration the defendant’s condition about majority acknowledges spinal that the con- so, Even of physician’s “a failure to adhere to dition must result from suffered generally.” profession Thus, skill used simply negligence. gravamen оf medical we are back question of whether there was devia- must consider the critical tion from the professional of the standard, which was the focus charge in this case. methodical majority puzzling opinion
Perhaps is its most about the what is any legal support whatsoever, the inherent contradiction. Without majority determining that, states, “a should not instruct trial court proving whether the has met burden was a cause of the defendant’s However, in a set order.” address the various elements must particular neg- majority ligence effectively opinion itself selects a element majority opinion prеeminent, of the for the whole focus proximate cause. the element of the instructions to the
This Court examine the must question misleading. determining State, Here, Ricketts v. evidence, cir- precluded any way considering otherwise, cumstantial or It was plaintiff’s merely “bad result.” instructed to follow the law and meаsure such evidence in light so, standard of care. It did and returned a verdict favor of the defendant There is no physician. legal basis to reverse the Court of affirmance of the entered on Appeals’s judgment that ver- dict.
I am authorized to state that Chief Justice Fletcher in this joins dissent. —
Decided March 19,2004. Rеconsideration denied March Lamar, Lamar, Cofrin, Archer & Robert C. Davenport, David W. for appellants.
Love, Peters, Willingham, Monyak, Gilleland & Michael J. Han- III, appellee. nan for Owen, Gleaton, Martin, Egan, Jones & M. Jo Sweeney, Amy Rolfe
Kolczak, amici curiae.
S04A0083. STEWART v. MILLIKEN. (593 Justice.
Hunstein,
In September
the habeas
court
corpus
found that Leonard
Scott Milliken received ineffective assistance of
counsel at
appellate
his trial and ordered that Milliken
given
be
a new
The State
appeal.
did not file an
appeal
ruling,
(c),
see OCGA 9-14-52
nor
did it file a cross appeal
granted
after we
Milliken a certificate of
cause to
probable
appeal
order to consider
propriety
relief ordered
the habeas corpus
Hopper,
court. See Birt v.
Stewart,
Milliken v.