Tracee Thompson, plaintiff, received an adverse verdict in her medical malpractice suit against Jeffrey D. Zwiren, M.D., and Prima Center for Plastic Surgery, P.C., and contends that the timely objected-to jury charge, “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 in question was proximаtely caused by the negligence of the defendant,” was harmful error. Plaintiff moved for a new trial setting out the objected-to charge as a special ground, and the trial court denied the motion for a new trial on this ground. While in a medical malpractice case the burden оf proof of proximate cause is by a preponderance of the evidence and while “reasonable degree of medical certainty” and “reasonable degree of medical probability” are not interchangeable terms, the use of “medical сertainty” was harmful error.
1. Plaintiff contends that the trial court erred in charging on “reasonable degree of medical certainty’ instead of reasonable degree of medical probability. We agree.
Plaintiff relies on
Herr v. Withers,
Without question, the standard of proof required to establish that an injury resulted from a defendant’s negligence is a preрonderance of the evidence. [Cit.] Unquestionably, that well-recognized standard for civil cases is not the functional equivalent of requiring сertainty. [Cits.]; compare Goggin v. Goldman,209 Ga. App. 251 , 253 (433 SE2d 85 ) (1993) (although medical malpractice actions require proof of causation to a reasonable degree of medical certainty, in negligence cases, as here, the proper standard is a preponderance of the evidence).
Id. at 421. See also
Maurer v. Chyatte,
Negligence alone is insufficient to sustain recovery. It must be рroven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degrеe of medical certainty that the injury could have been avoided.
(Citations and punctuation omitted.) Id. at 252-253.
The standard of proof in a civil case, even a medical malpractice action, is by a preponderance of the evidence. 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 inсline a reasonable and impartial mind to one side of the issue rather than to the other. Thus, reasonable medical probability has no greater meaning than a preponderance of the evidence, and the standard of proof is preponderance оf the evidence as to medical causation. “Moreover, we note that although we have frequently used the phrase ‘reasonable medical certainty,’ it 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), over *206 ruled, in part on other grounds, Ezor v. Thompson,241 Ga. App. 275 , 279 (526 SE2d 609 ) (1999)].
(Citations and punctuation omitted.)
Estate of Patterson v. Fulton-DeKalb Hosp. Auth.,
In medical malpractice cases, “causation issues can be resolved only by expert medical testimony, standing alone; in which case the testimony sufficient to establish a causal connection must at least show there was a reasonable probability that the negligence caused the injury.” (Citations omitted.) Pilzer v. Jones, supra at 201 (1). “Certainty is not required, but the plaintiff must show probability rather than merely a possibility that the alleged negligence caused the injury or death.” (Emphasis in original.) Abdul-Majeed v. Emory Univ. Hosp., supra at 609.
The charge given in this case, “within a reasonable degree оf medical certainty as proven by a preponderance of the evidence that the injury in question was proximately caused,” is inсonsistent and self-contradictory with the burden of proof in civil cases, because it appears to require a higher degree of proof, certainty, i.e., absence of doubt instead of a reasonable degree of medical probability by a preponderаnce of evidence. See Abdul-Majeed v. Emory Univ. Hosp., supra. Webster’s New World Dictionary (2nd ed.) defines certainty as “anything certain; definite fact — of a certainty [archaic] without a doubt.” Black’s Law Dictionary defines certainty as an “[a]bsence of doubt.” Thus, to a juror, a charge containing an instruction that a jury decide proximate cause in a medical malpractice case based upon a reasonable degree of medical certainty mandates a greater standard of proof than a mere preponderance of evidence within a reasonable degree of medical probability. Abdul-Majeed v. Emory Univ. Hosp., supra.
“A charge containing two distinct propositions conflicting the one with the othеr 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.” (Citations and punctuation omitted.)
Clements v. Clements,
2. Plaintiff’s second enumeration of error was raised for the first *207 time on appeal and will not be considered. Further, Division 1 renders this enumeration moot.
Judgment reversed.
Notes
In
Herr v. Withers,
supra at 421, the use of a jury charge in a personal injury action that stated, “that in considering expert medical testimony a verdict сannot be formed on speculation or mere possibilities. In order for a plaintiff to recover damages for an injury arising from the negligеnce of another, it must be shown within a reasonable degree of medical certainty that the injury was the result of the defendant’s negligence. Speculation and possibilities are to be disregarded,” was disapproved. (Punctuation omitted.) See
Leslie v. Williams,