This is a dental malpractice case in which the plaintiff, John F. Massey brought suit against defendant Dr. John Wiebe and his dental practice, Southeastern Oral and Maxillofacial Surgery, P. C. hereinafter collectively referred to as defendants contending that his wife, Elizabeth Massey, developed aspiration pneumonia and died after Dr. Wiebe negligently allowed Mrs. Massey to aspirate a three-tooth bridge during an extraction of her teeth for dentures. The jury returned a verdict in favor of the defendants, and the trial court entered judgment accordingly. Massey then filed the present appeal, alleging the trial court erred by giving certain instructions to the jury. 1. Massey’s first enumeration of error challenges a charge given by the court in response to a question from the jury, arguing that it was not responsive to the question and that it over-emphasized the plaintiff’s burden of proof.
The transcript shows that about one hour after they began deliberating, the jurors asked if there was a definition of the standard of care or if they could “see” a definition of the standard of care. Massey’s counsel suggested the trial court respond by telling the jury that “What the standard is in this case came from the evidence, that evidence included the testimonies of the defendant, his experts and defendant’s admissions.” But the trial judge gave the following charge, which was a re-charge of Charge Number Eight, instead: Okay, folks, I understand you had a question. What I’m going to do, the best I can do to answer that question is I’m going to read you the charge, concerning standard of care, back to you: In order to recover a verdict against the defendants in this case, the plaintiff has the burden of proving two separate and distinct items by a preponderance of the evidence. First, the plaintiff must prove that the defendants failed to use that degree of care and diligence ordinarily employed by doctors, generally under similar conditions, in like surrounding circumstances. Second, the plaintiff must prove, by a preponderance of the evidence, that any such alleged failure on the part of the defendants was actually a proximate cause of the injuries alleged. There can be no recovery against the defendants, unless it’s shown to a reasonable degree of medical certainty that the injury could have been avoided. If the plaintiff fails to satisfy his burden of proof, on either of these two issues, then you must return a verdict in favor of the defendants. And if you find the evidence is evenly balanced upon either of those two issues, it would be your duty to return a verdict in favor of the defendants. That was the whole charge, so the plaintiff must prove the defendants failed to use that degree of care and diligence ordinarily employed by doctors, generally, under similar conditions and in like surrounding circumstances. You heard the evidence in this case. You have to apply the evidence that you heard to the law that I gave you, and the Court can’t go back over the evidence with you. You have to do that from what you remember. . . . First, contrary to Massey’s contention, the charge was, at least in part, responsive to the jury’s question since the trial court twice made reference to the applicable standard of care. E.g., Byrd v. Medical Center of Central Georgia, Inc. , 258 Ga. App. 286, 289-290 574 SE2d 326 2002. Further, although Massey now argues that another charge —Charge Number Six —was more apt, it does not appear that Massey requested that the trial court give Charge Number Six in response to the jury’s question. And we do not think the trial court erred by declining to give Massey’s proposed charge, inasmuch as Massey now admits on appeal that his proposed charge did not specifically provide a definition of the standard of care, which was what the jury requested.
