The respectable minority rule in Georgia medical malpractice

A Georgia physician who picked one accepted method over another has not committed malpractice just because a different expert would have picked differently. The Court of Appeals stated the idea in Hayes v. Brown, 108 Ga. App. 360 (1963): a “mere difference in views” between surgeons about technique or judgment is not enough where each is “an acceptable and customary method”. The name “respectable minority” is a label for that idea, and it depends on proof that the method really was accepted.

The source of the rule

Georgia’s standard is about the profession, not a single doctor’s preferences. O.C.G.A. § 51-1-27 requires “a reasonable degree of care and skill”. In Johnson v. Riverdale Anesthesia Associates, 275 Ga. 240 (2002), the Supreme Court said the standard is what is “ordinarily employed by the medical profession generally”, under similar conditions and like circumstances. Hayes applies that standard to a disagreement between surgeons: if both approaches are accepted, showing the disagreement does not create a jury issue.

What Johnson shows about proving it

Johnson also limits how the point can be tested. An expert was not allowed to be asked how he personally would have treated the patient, because the standard is not one doctor’s personal practice. So a plaintiff cannot prove breach by getting a defense expert to admit he would have done it differently, and a defendant does not win by finding one doctor who would have done the same. The evidence has to speak to what the profession accepted. Trial courts control this with their evidentiary rulings.

What has to be true for the argument to work

The argument has limits that follow from its reasoning.

• The method has to be accepted for this situation. A method that is accepted in one clinical setting can be outside the standard in another.
• The choice has to be the issue. The rule addresses the decision to use a method. It does not protect carrying out the method badly.
• Evidence has to support it. Hayes refers to a method shown to be “acceptable and customary”, so the defendant cannot simply call a choice a judgment call.

The rule also does not address causation. If a physician’s choice was outside what was accepted, the plaintiff still has to prove that it made a difference, as causation challenges explains.

How the same facts can raise a consent question

A person who was not told of an alternative may ask whether that is a separate claim. Georgia’s consent statute, O.C.G.A. § 31-9-6.1, is limited to listed procedures. Among the items to disclose in (a)(5) are “practical alternatives” recognized by reasonably prudent physicians. Subsection (d) says a failure to comply is not “a separate cause of action” but may give rise to a malpractice action, and it has specific elements and affidavit content. It is not a general right to hear every option for every treatment. A claim framed this way has to fit that statute, so the procedure comes first in the analysis.

Practical points for reading a record

For a person trying to understand a choice made in their care, the useful evidence is this:

• what the chart says the physician considered, and when;
• what the physician told the patient;
• what published guidance said at the date of the care, as distinct from the present; and
• whether the choice was followed through properly.

Published guidelines can help on what was accepted, but they do not decide a case on their own, and a guideline from a later year is not evidence of the standard at the earlier date. Expert testimony connects them to the facts. The rules on who can give that testimony are on the standard of care expert page.

Where the argument does not help the defense

A defense built on this rule should not be expected to work where:

• the expert testimony shows no one in the field would have acted that way;
• the claim is about a wrong-site procedure, a missed order, a charting error, or a failure to act, rather than a choice between treatments;
• a provider has no explanation for the choice, so the choice looks like an oversight.

These are logical limits drawn from the cases above, not a list set out by any court. The four elements article puts this in the wider picture.

A decision rule

When the dispute is whether option A or option B was right, ask an expert: was the chosen option accepted, for this patient, on that date? If yes, the fight can move to how it was done and what was said to the patient. If no, the rule does not protect it. A case that depends only on the first question being answered “no” is one to evaluate cautiously.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 31-9-6.1, 51-1-27
• Hayes v. Brown, 108 Ga. App. 360
• Johnson v. Riverdale Anesthesia Associates, 275 Ga. 240

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.