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Thompson v. Zwiren

The trial court reversibly erred in charging the jury that a medical malpractice plaintiff had to prove her case within a reasonable degree of medical certainty, rather than a reasonable degree of medical probability.

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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 proximately 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 grounds, and the trial court denied the motion for a new trial on this ground. While in a medical malpractice case the burden of 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 certainty” 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.

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