Can Jury Instructions Be Changed in a Personal Injury Case?
The Georgia Supreme Court recently declined to hear an appeal in a medical malpractice case. However, Justice Charles Jones Bethel wrote an interesting concurrence in the denial of certiorari. The judge said that he wrote separately to emphasize that “trial courts ought not be afraid to give a ‘personal practices’ instruction — or, for that matter, any tailored instruction that breaks with the pattern jury instructions — where appropriate under the facts of a case.”
Background
Margaret Keel had total knee replacement surgery performed by Dr. Bradford Wall at Georgia Bone & Joint Surgeons, P.C. (GBJ) in Cartersville, Georgia. While recovering overnight at GBJ, she suffered a brain injury due to lack of oxygen. Keel filed a medical malpractice lawsuit against the surgery center, and the jury found GBJ liable and awarded her $6,500,000 in damages. On appeal, the Court of Appeals held that the trial court didn’t err in refusing to give GBJ’s requested jury instructions on differing views between medical providers and no guarantee of results.
Judge Bethel’s Opinion
The judge noted that GBJ argued, among other things, that Supreme Court’s guidance is necessary on the issue of when a trial court is “required” to instruct the jury on how to evaluate testimony about a medical expert’s personal practices as part of the jury’s overall assessment of the applicable standard of care and any breach. In a medical malpractice case, as in other professional malpractice actions, expert testimony generally is necessary “to establish the parameters of acceptable professional conduct,” that is, the standard of care. And the applicable standard of care in a given case is generally a question for the jury.
The trial court in this case rejected GBJ’s requested charge on that point, and the Court of Appeals concluded that any error was harmless. GBJ maintained that the charge was “required” by this Court’s decision in Condra v. Atlanta Orthopaedic Group (2009). That decision held the vital role an expert’s credibility plays in the jury’s assessment of the applicable standard of care, and an expert witness’s testimony on his or her own personal practices can help the jury in evaluating the expert’s credibility. The trial court in that case prohibited the plaintiffs from cross-examining the defendants’ expert about his personal practices.
Condra examined the text of then-recently enacted O.C.G.A. § 24-9-67.1 (now codified at § 24-7-702(c)) to conclude that “evidence regarding an expert witness’s personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert’s opinion regarding the applicable standard of care.” As such, Condra’s holding was a limited one, Judge Bethel explained.
However, GBJ asserted that Condra has broader implications, relying on Condra’s rejection of an argument that allowing personal-practices testimony was likely to confuse the jury and its musing that any confusion “may be remedied through the use of careful jury instructions.” GBJ believed that the brief discussion incorporated an additional holding—that trial courts are required to instruct the jury “that a mere difference in views between physicians does not by itself prove malpractice” when testimony about an expert’s personal practice is introduced.
But Judge Bethel explained that the holding of a particular decision is limited to the reasoning that was necessary to that decision. Because Condra addressed only the narrow question of the admissibility of personal-practices testimony in the medical malpractice context, its discussion about using jury instructions to head off potential juror confusion wasn’t necessary to its result. As a consequence, the Supreme Court’s reflection on jury instructions wasn’t a holding.
While GBJ was wrong to think that Condra mandates such an instruction, the judge said it doesn’t mean trial courts shouldn’t be open to deviating from the pattern jury instructions, where appropriate. The trial court’s refusal of GBJ’s requested charge in this case was based on several considerations, including the fact that the requested charge wasn’t a pattern jury instruction. But a jury charge only must be “adjusted to the evidence and embody a correct, applicable, and complete statement of law.” And whether a challenged charge is consistent (or inconsistent) with the suggested pattern charges sheds no light on whether the charge is a correct and complete statement of law.
That’s because pattern jury instructions aren’t the law, and the Supreme Court neither reviews nor approves them. Rather, they’re created by the Council of Superior Court Judges of Georgia to establish best practices in charging juries, consistent with the Council’s understanding of the law and precedent that binds Georgia’s trial courts. In fact, use of a pattern charge doesn’t necessarily preclude a finding of error. And the Court has concluded more than once that a pattern charge was simply wrong.
In the preparation of jury instructions, the suggested pattern instructions are most often a good place to start, though they may not be the end of the matter. As the Court of Appeals for the Seventh Circuit has remarked, “pattern instructions are helpful resources, not holy writ.” The Supreme Court has stated that a trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. As such, charging the jury with the requisite care and skill may require modifying a pattern charge or even creating a specially-tailored charge to better align with the evidence or legal issues in the case. And trial courts shouldn’t hesitate to do so.
Here, for example, the trial court might have permissibly instructed the jury about whether and how an expert’s testimony about his personal practices was relevant to determining the applicable standard of care and whether that standard was met or breached in this case. Of course, that’s not to say the trial court had to give such an instruction, Judge Bethel concluded, only that it could be warranted in similar circumstances and that trial judges should consider those circumstances accordingly.
Ga. Bone & Joint Surgeons, P.C. v. Keel, 2026 Ga. LEXIS 49, 2026 LX 62517, 2026 WL 271052 (Ga. February 3, 2026).
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The Georgia Supreme Court leaves intact a multimillion-dollar medical malpractice award and clarifies trial judges’ discretion over jury instructions. They aren’t binding law and shouldn’t be treated as inflexible requirements. Here, as a result, evidence on an expert’s personal practices can be admitted both as substantive evidence and for impeachment purposes, provided it satisfies evidentiary rules. Our experienced Atlanta-based personal injury law firm is happy to answer your questions. We offer free consultations to all prospective clients. Contact an Atlanta personal injury attorney at Tobin Injury Law 24 hours a day, seven days a week by calling 404-JUSTICE (404-587-8423).f