Condra Does Not Mandate a “Personal Practices” Jury Charge; Pattern Instructions Are Not Law and Trial Courts May Tailor Charges
Introduction
Georgia Bone & Joint Surgeons, P.C. v. Keel reached the Supreme Court of Georgia on a petition for certiorari following a Court of Appeals decision in a medical-malpractice case. The Supreme Court denied certiorari, leaving the Court of Appeals’ judgment undisturbed. Justice Bethel nevertheless wrote a concurrence to address a recurring trial issue: when (if ever) a trial court is required to instruct jurors on how to evaluate testimony about a medical expert’s personal practices when determining the standard of care and breach.
The petitioner argued that the requested “personal practices” instruction was required by Condra v. Atlanta Orthopaedic Group and that refusal to give it warranted review. The Court of Appeals had concluded that any instructional error was harmless. Justice Bethel’s concurrence focuses on two points: (1) the petitioner’s overreading of Condra, and (2) the improper tendency to treat Georgia’s suggested pattern jury instructions as a quasi-source of law rather than a helpful drafting tool.
Summary of the Opinion
The Supreme Court of Georgia denied certiorari. In his concurrence, Justice Bethel explains that Condra v. Atlanta Orthopaedic Group decided a narrow evidentiary question—admissibility of “personal practices” testimony under OCGA’s expert-evidence framework—and did not hold that any particular “difference in views between physicians” instruction is required whenever such testimony is introduced. He further emphasizes that trial courts should not refuse a legally correct, evidence-adjusted charge merely because it is not a pattern instruction; pattern instructions are not enacted law and are not reviewed or approved by the Supreme Court.
Analysis
Precedents Cited
1) The evidentiary foundation for “personal practices” testimony
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Condra v. Atlanta Orthopaedic Group, 285 Ga. 667 (2009)
Justice Bethel treats Condra as the central authority—and the one being misread. Condra reversed the earlier categorical exclusion of personal-practices testimony and held such evidence generally admissible (subject to other evidentiary limits) under the then-new statute, OCGA § 24-9-67.1 (now OCGA § 24-7-702(c)). The concurrence underscores that Condra concerned admissibility and credibility assessment, not a mandatory jury instruction rule.
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Johnson v. Riverdale Anesthesia Assocs., 275 Ga. 240 (2002)
Used as the “before” picture: Johnson had treated personal-practices testimony as categorically inadmissible. Condra “reversed course” by grounding admissibility in the statutory expert-testimony regime.
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DOT v. Brown, 267 Ga. 6 (1996)
Cited for the general proposition that expert testimony is typically necessary in professional-malpractice cases to establish “the parameters of acceptable professional conduct” (the standard of care). This provides the context for why the jury’s evaluation of experts—and credibility tools like personal-practices testimony—matters.
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Swint v. Alphonse, 348 Ga. App. 199 (2018)
Cited for the principle that the standard of care is generally for the jury to determine, reinforcing the point that jurors must be equipped to evaluate expert credibility and competing accounts of professional norms.
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Lau's Corp v. Haskins, 261 Ga. 491 (1991)
Offered by analogy: in premises liability, the particular standard of care and breach are “usually” jury issues. The concurrence uses this to situate medical-malpractice standard-of-care determinations as quintessential jury work.
2) Holdings versus dicta: limiting what Condra can be said to “require”
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Walmart Stores East, LP v. Leverette, 321 Ga. 854 (2025)
Supplies the rule of decision on precedential scope: “the holding of a particular decision is limited to the reasoning that was necessary to that decision.” Justice Bethel uses this to explain why Condra’s discussion of jury instructions to mitigate potential confusion was not part of its holding.
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State v. Wierson, 321 Ga. 597 (2025)
Cited in support of the same interpretive method: holdings are bounded by what is necessary to resolve the case, preventing parties from converting ancillary commentary into mandatory rules.
3) Pattern jury instructions: useful starting point, not a legal standard
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Ward v. State, 372 Ga. App. 383 (2024); Penix v. State, 367 Ga. App. 765 (2023); Dorsey v. State, 331 Ga. App. 486 (2015)
These Court of Appeals decisions are invoked as examples of reasoning that places weight on whether a charge tracks the Suggested Pattern Jury Instructions. Justice Bethel criticizes that emphasis as “disconnected” from controlling Supreme Court precedent because pattern instructions are not themselves law.
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Morris v. State, 308 Ga. 520 (2020)
Provides the controlling test for jury instructions: a charge must be “adjusted to the evidence” and embody “a correct, applicable, and complete statement of law.” The concurrence treats this as the proper metric—independent of whether the language is “pattern.”
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Reese v. State, 314 Ga. 871 (2022)
Serves two roles: (1) a reminder that even pattern charges may need modification to be adjusted to the evidence; and (2) an example where refusal to give a modified pattern charge was error because the instruction, as written, did not fit the evidentiary posture.
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Smith v. Finch, 285 Ga. 709 (2009); Tolbert v. Duckworth, 262 Ga. 622 (1992)
These decisions illustrate that pattern charges can be wrong or inappropriate: Smith found a hindsight pattern instruction erroneous, and Tolbert held an accident pattern charge “unnecessary, misleading, and confusing” and barred its future use. The concurrence uses these cases to break any presumption that “pattern” equals “correct.”
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Jones v. Sperau, 275 Ga. 213 (2002)
Cited for the trial court’s duty to charge on law applicable to issues supported by evidence—supporting Justice Bethel’s broader point that proper charging may require tailoring beyond standardized language.
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United States v. Edwards, 869 F3d 490 (7th Cir. 2017)
Used as persuasive support for the idea that pattern instructions are “helpful resources, not holy writ.” While not binding in Georgia, it reinforces the concurrence’s pragmatic view of pattern instructions.
Legal Reasoning
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Condra’s actual holding is narrow.
Justice Bethel reads Condra v. Atlanta Orthopaedic Group as deciding admissibility: personal-practices testimony is generally admissible (subject to other evidentiary objections) under the expert-testimony statute (then OCGA § 24-9-67.1, now OCGA § 24-7-702(c)). That admissibility supports the jury’s credibility evaluation of experts who opine on the standard of care.
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Do not transform “may be remedied” commentary into a mandatory instruction rule.
The petitioner relied on Condra’s observation that any confusion from personal-practices testimony “may be remedied through the use of careful jury instructions.” Justice Bethel treats this as non-essential to the admissibility holding—therefore not a holding itself under Walmart Stores East, LP v. Leverette and State v. Wierson.
The key doctrinal move is methodological: courts and litigants must distinguish between what a case had to decide and what it discussed while deciding it.
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Pattern instructions are not a lawful gatekeeper for charging decisions.
Justice Bethel rejects the notion—sometimes reflected in appellate rhetoric—that the “crucial question” is consistency with suggested pattern charges. The controlling inquiry is whether an instruction is legally correct, complete, and adjusted to the evidence (Morris v. State), not whether it appears in a pattern book.
The concurrence also gives institutional reasons: pattern instructions are not enacted by the General Assembly, and the Supreme Court does not review or approve them. Thus, “pattern” status cannot independently validate or invalidate a charge.
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Trial courts may (and sometimes should) tailor instructions.
While rejecting the petitioner’s claim of a mandate, Justice Bethel explicitly encourages trial courts to consider tailored instructions—including on “personal practices”—when the facts and issues warrant it. The caution is not against tailoring, but against believing tailoring is forbidden unless the language is already “pattern.”
Impact
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Medical-malpractice litigation (standard of care proof):
The concurrence reinforces that personal-practices testimony is primarily an evidentiary and credibility tool (as recognized in Condra v. Atlanta Orthopaedic Group) and that its presence does not automatically trigger a special “difference in views” instruction requirement. Future litigants may still request such an instruction, but they should frame it under general charging principles (correct law + adjusted to evidence), not as a compelled instruction under Condra.
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Jury-instruction practice statewide:
The opinion is an explicit warning against treating the Suggested Pattern Jury Instructions as quasi-binding authority. If adopted in spirit by trial and appellate courts, it could shift arguments away from “pattern vs. non-pattern” and back to the orthodox standards in Morris v. State and Jones v. Sperau.
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Appellate review discipline (holdings vs. dicta):
By citing Walmart Stores East, LP v. Leverette and State v. Wierson, the concurrence may be invoked in future disputes over whether broad language in earlier cases truly created a rule. The practical effect is to cabin attempts to extract mandatory instructions or categorical requirements from commentary that was not necessary to the earlier judgment.
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Immediate precedential force:
Because the Supreme Court denied certiorari, the Court did not issue a merits opinion. Justice Bethel’s writing is therefore best understood as persuasive guidance rather than a new binding holding of the Court—yet it is a clear roadmap for how at least some Justices view these issues.
Complex Concepts Simplified
- Denial of certiorari
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The Supreme Court declines to review the lower court’s decision. It does not necessarily endorse the reasoning below; it simply leaves the Court of Appeals’ judgment in place.
- Standard of care (medical malpractice)
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The level of skill and care a reasonably prudent medical professional would use under similar circumstances. Expert testimony is typically needed to explain it to jurors.
- “Personal practices” testimony
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Testimony about what an expert personally does in similar clinical situations. Under Condra v. Atlanta Orthopaedic Group, it can be relevant to credibility and may be substantive evidence when assessing opinions about the standard of care.
- Jury charge / instruction
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The legal directions a judge gives the jury before deliberations. A proper charge must be legally correct, complete, and fit the evidence and issues in the case.
- Pattern jury instructions
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Suggested model instructions prepared by judicial committees. They are helpful templates, but they are not statutes and are not binding law.
- Holding vs. dicta
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A “holding” is the legal rule necessary to decide the case. “Dicta” are statements not necessary to the decision; they may be persuasive but do not carry the same precedential force.
- Harmless error
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Even if a trial court made a mistake, an appellate court may affirm if the error likely did not affect the outcome. The Court of Appeals applied that concept in Ga. Bone & Joint Surgeons v. Keel, 376 Ga. App. 79 (2025).
Conclusion
Justice Bethel’s concurrence in Georgia Bone & Joint Surgeons, P.C. v. Keel offers pointed guidance despite the denial of certiorari: Condra v. Atlanta Orthopaedic Group makes personal-practices testimony admissible but does not compel a special jury instruction whenever such testimony appears. More broadly, the concurrence re-centers jury-instruction analysis on the governing legal test—correct, complete, evidence-adjusted charges—while cautioning courts against elevating suggested pattern instructions into a proxy for the law. The practical significance is an invitation to careful, case-specific charging and a reminder that tailoring is not only permitted, but sometimes required, to ensure jurors are properly guided on the issues they must decide.