No Honest Mistake Charge If No Honest Mistake Defense

posted on June 1st, 2008 in Jury Charge by clint
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In Godbee v. Dimick, 2006 WL 2614290 (Tenn.Ct.App.), the plaintiff filed a medical malpractice action. The trial court gave an “honest mistake” jury charge over the objection of the plaintiff. Ms. Godbee argued that T.C.A. 29-26-115(a) does not mention “honest mistake,” thus the jury charge was erroneous. In Patton v. Rose, 892 S.W.2d 410, 415 (Tenn.Ct.App.1994), the same argument was raised and rejected by this same court. The instruction on honest mistake was later upheld in Hurst v. Dougherty, 800 S.W.2d 183 (Tenn.Ct.App.1990) and in Dillard v. Meharry Med. Coll., 2002 WL 1465957(Tenn.Ct.App.).

However, the “honest mistake” charge in Godbee was wrong because there was no evidentiary basis for it. Dr. Dimick denied that he made any mistake, honest or otherwise. His defense did not envision an “honest mistake.” This case is useful because it provides a recipe for avoiding this misleading jury charge. Get the defendant physician to concede that he did not make a mistake in the diagnosis and treatment of your client. If he admits that he made a mistake, then you are that much closer to proving a deviation from the standard of care.

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