Foreseeability is the Cure for a Defense Based on Foresight
posted on August 3rd, 2008 in Foreseeability, Jury Charge by clintIn Adams v. Hendersonville Med. Ctr., 2007 WL 1462245 (Tenn.Ct.App.), the plaintiff lost a wrongful death medical malpractice action based on a disputed jury charge. The decedent presented to the emergency department with complaints of high fever, body aches (specifically in her right knee and calf), vomiting, nausea, and diarrhea. Approximately four and a half hours later, the decedent was discharged from the emergency room with a diagnosis of flu and dehydration. The patient died three days later, and an autopsy revealed that the cause of death was septic shock, secondary to a bacterial infection. The Plaintiffs alleged that the decedent died because the ER failed to diagnose and thus timely treat a severe bacterial infection. The trial court charged the jury, that “foresight, not hindsight, is the standard by which a professional’s duty of care is to be judged.”
However, foreseeability, not foresight, is an essential element of the duty of care in a medical malpractice case. The foreseeability requirement is not so strict as to require the defendant to foresee the exact manner in which the injury takes place, provided it is determined that the defendant could foresee, or through the exercise of reasonable diligence should have foreseen the general manner in which the injury or loss occurred. The fact that an injury may be rare does not per se make it unpredictable or unforeseen. The trial court “ventured into uncharted waters” when it charged the jury that “foresight, not hindsight” is the standard to measure the duty of care. This charge was deemed reversible error.