Author's note. Adapted from the cross-appellant's brief in Keel v. Georgia Bone & Joint Surgeons, P.C., et al., Court of Appeals of Georgia, Case No. A25A0382. The cross-appeal was conditional: it asked the Court to rule on the prior-similar-events issue if (and only if) the Court remanded based on the defendants' direct appeal. The doctrinal question therefore remains open in Georgia in any case that raises it squarely, and the analytical frame is portable to any state whose definition of the standard of care is profession-based rather than facility-based.
The pattern at trial
The recurring move shows up most clearly in cases where the defense lacks a strong substantive answer to the standard-of-care theory. On direct examination of the medical-provider defendant, defense counsel asks something like: "Had there ever been an arrest during the overnight part of an extended stay before?" The answer is "No." Defense counsel does not leave it there, and the defendant volunteers, on the next question, that "the medication orders had been used safely for years." Later in the same examination: "I've never seen it happen before."
The plaintiff objects. The trial court acknowledges that, "preliminarily, you're correct, that past incidents are not [admissible], they're not relevant" — but admits the testimony anyway on the theory that if the question "goes to his state of mind, his intention, his decision-making in this case, then it is relevant."
That ruling embeds two errors. First, a trial court abuses its discretion by admitting evidence that is not relevant. McIver v. State, 314 Ga. 109, 147 (2022) ("[T]he State here did not offer evidence sufficient to 'make the existence of any fact that is of consequence to the determination of the action more probable or less probable' under Rule 401. It was therefore irrelevant and inadmissible, and the trial court abused its discretion in admitting it."); Miller v. Golden Peanut Co., LLC, 317 Ga. 22, 30 (2023) (evidentiary rulings reviewed for abuse of discretion). Second, a trial court abuses its discretion by applying an incorrect legal standard. State v. Harris, 316 Ga. 272, 277-78 (2023) ("a trial court does not have discretion to apply an incorrect legal standard"). The "decision-making" theory is an incorrect legal standard. And once it is removed, the testimony has no remaining basis for admission, because it does not bear on any of the questions the jury must answer.
The four questions a jury must actually answer
Relevance is determined by the issues the jury must decide. OCGA 24-4-401 ties relevance to "the determination of the action." In a medical-malpractice case, the determination of the action involves four questions, in this order:
- What did the standard of care require of the defendants?
- Did the defendants do those things?
- If not, did the failure cause harm to the plaintiff?
- If so, what amount of money fairly compensates the plaintiff?
"No prior similar events" testimony does not bear on any of those four questions. The next several sections work through each in turn. The first is the heart of the matter.
What the standard of care actually is — and what it is not
Georgia's pattern jury instruction states the rule plainly. Suggested Pattern Jury Instruction 62.300 says the standard of care, "when applied to the facts and circumstances of any particular case, must be of such degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally." The Court of Appeals reiterates the same rule. West v. Breast Care Specialists, 290 Ga. App. 521, 526 (2008), citing Summerour v. Saint Joseph's Infirmary, 160 Ga. App. 187 (1981), notes the applicability of a national, not local, standard of care. Fain v. Moore, 155 Ga. App. 209 (1980), recognized "the 'general' as opposed to the 'local' standard."
The cases speak to a single proposition. The standard of care for a healthcare provider is based on the collective knowledge and practices of the medical profession as a whole. The standard does not bend to fit the defendant's individual track record. A facility's good fortune in not yet hurting a patient through poor practices does not relax what the standard of care requires of it.
The cleanest illustration is the wrong-site-surgery example. Wrong-site surgeries are an infrequent but well-documented problem. Standard precautions for surgeons therefore include multiple checks — the right patient, the correct operation, the correct body part. Those precautions reduce the likelihood of catastrophic error. But when wrong-site surgery happens, it is no excuse for a surgeon to say, "Until now I'd never cut the wrong leg off a patient, so I didn't have to take these precautions." In Georgia at least, the law forecloses that defense. The surgeon's lack of prior similar events is irrelevant. A healthcare provider must comply with the standard of care before the failure to do so hurts someone.
The proposition has practical bite in a case like Keel. There, even the defense witnesses admitted that two-nurse overnight staffing could not run a Code Blue. One of the nurses on duty testified, on direct from defense counsel, that "with just two nurses to try to run a code, [it was] more difficult to ... go through every step of the ACLS protocol," and that "[i]t's much more effective if you have four or five people to do the different tasks at hand." A defense physician expert agreed: "[Y]ou couldn't expect two nurses to do that. It's just not reasonable." With those concessions on the record, whether the facility had previously gotten lucky was beside the point. The standard of care required adequate Code-Blue staffing whether or not that staffing had ever been tested by an actual Code.
Why prior-similar evidence works in premises and products cases — and why that logic does not transfer
The familiar caselaw on prior-similar incidents emphasizes the contrast. In premises-liability cases, prior similar events may be relevant because they put a property owner on notice of a hazard the owner must then guard invitees against. Ga. CVS Pharmacy v. Carmichael, 316 Ga. 718, 731-32 (2023), notes that "knowledge of an unreasonable risk" of criminal attack may be demonstrated by evidence of the occurrence of prior substantially similar incidents. In products-liability cases, the doctrine is functionally identical: "In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect, provided there is a showing of substantial similarity." Suzuki Motor v. Johns, 351 Ga. App. 186, 196 (2019).
In both settings, prior similar incidents do real work because they go to notice of an unknown or contested hazard — and the duty (warn invitees, fix the defect) attaches once the hazard is known.
The medical-malpractice standard of care does not work that way. The danger to be guarded against is built into the standard itself. The standard of care exists precisely to require providers to guard against known risks of harm. So in a medical-malpractice case, with or without prior similar events, the danger to be guarded against is already known, and the standard of care already accounts for the danger. The relevance bridge that prior-similar evidence walks across in premises and products cases — notice — has no work to do here, because the standard already presumes the notice.
There is one fairness caveat worth preserving so that the doctrine is not over-stated. In a case where a defendant denies that the standard of care requires taking account of a particular danger, it would be relevant impeachment or rebuttal evidence that the defendant did have prior experience with that danger and was thus on notice of the need for precautions. That caveat does not justify the "no prior similar events" testimony at issue here. It runs the other way — it is plaintiff-side rebuttal evidence in the rare case where a defendant's own testimony invites it. It does not authorize a defendant to volunteer "this has never happened before" to soften the apparent gravity of a violation.
Irrelevance to the rest of the action
Irrelevance to the first of the four jury questions — what the standard of care required — is therefore the heart of the case. Irrelevance to the other three is much shorter.
Whether the defendants did the things the standard of care required is a fact question about the defendants' conduct, not about whether other patients had bad outcomes. Damages are compensatory: a question about the harm to the plaintiff, not about the defendant's track record. The closest the prior-similar-events testimony comes to bearing on any of these is causation, and even there the connection collapses on inspection. For "no prior similar events" to be probative on causation, the defense would need expert testimony that all patients respond identically to the kind of medical event in suit — so that, if past patients tolerated the same dosing or staffing without harm, a current patient could not have been harmed by it either. In Keel, no expert offered that testimony, because the testimony would have been false. Different patients (with different weights, ages, comorbidities, and metabolic profiles) tolerate opioids differently. Without expert testimony of universal patient response, the alleged lack of prior similar events at the defendant facility is irrelevant to causation.
Excluding the testimony, importantly, does not silence the defendant's substantive theory of the case. The defense remains free to argue, through its experts, that the standard of care did not require what the plaintiff claims it required — different staffing, different medication orders, different monitoring protocols. The defense did argue exactly that in Keel, through its experts. The jury simply did not believe them. The exclusion of "no prior similar events" testimony does not foreclose the defense's standard-of-care theory; it just removes a piece of irrelevant evidence the defense was using to soften the apparent gravity of a violation that, on the relevant evidence, the jury found.
The "decision-making" theory and the residual-relevance fallacy
The trial court in Keel admitted the testimony on a different theory: that it was relevant to the surgeon's decision-making. As the court put it, the question "can go to his decision making."
That theory does not survive scrutiny. To begin with, the trial-court record did not support it as factually accurate. There was no testimony that the surgeon consciously thought about the facility's past experience when deciding how to handle the patient. The "no prior similar events" history was at most a background fact that might have influenced the surgeon's decision-making — not a fact the surgeon affirmatively said he considered.
Even taken at its strongest, the theory fails as a matter of law. Neither the defense nor the trial court cited any legal authority creating a residual grant of relevance for any background fact that might have influenced a decision. To the contrary, such a broad grant of relevance would contradict the definition of "relevant evidence" in the Evidence Code itself: if a background fact is not "of consequence to the determination of the action," it is not relevant. OCGA 24-4-401. And the alleged lack of prior similar events is not of consequence to the determination of the action if it does not bear on any question the law requires the jury to answer — and the prior sections explain why it does not.
The trial court appears to have assumed that any background fact that might influence a decision is relevant. That assumption has no anchor in the Evidence Code. If accepted, it would dissolve the relevance requirement in any case with a witness defendant. Under the residual theory, almost anything in the witness's life experience could be characterized as a "background fact" that "might have influenced" a decision — and once that characterization is adopted, OCGA 24-4-401 has no remaining filter to apply. That is not how the relevance rule operates.
A narrower form of the trial-court theory fails for a different reason. If the argument is not that the surgeon consciously thought about the facility's past experience, but that the past experience subconsciously informed the decision, the argument depends on something like judicial notice of how subconscious thought processes work. Subconscious thought processes are not a topic for judicial notice. See generally OCGA 24-2-201. The trial court cannot conclude, and cannot allow the jury to conclude, that the absence of prior similar events subliminally informed the surgeon's choices. No record evidence and no settled body of judicially noticeable doctrine supports the inference.
What is left, after these errors are removed, is a piece of evidence whose only function is to soften the apparent gravity of a violation the standard of care did not condone in the first place.
Negligence is binary; degree of culpability is irrelevant in a compensatory case
A defender of the trial-court ruling might respond that, even if "no prior similar events" testimony does not bear on whether there was a standard-of-care violation, it is still probative of how serious or culpable any such violation was. The argument fails on its own terms. In a compensatory-damages case, the seriousness or culpability of the violation is not an issue the jury must decide.
Negligence in a malpractice case is binary. Either there was a standard-of-care violation that caused harm, or there was not. There is no spectrum of culpability the jury weighs along the way. The measure of compensatory damages is the harm to the plaintiff, not the degree of culpability of the defendant.
Degree of culpability does enter the law in other settings. It is relevant in criminal cases on the issue of sentencing. It is relevant in civil cases on the issue of punitive damages. The Keel case is neither: it does not involve punishment, and it does not involve gross negligence or punitive damages. With those settings off the table, the seriousness or culpability of any violation has no proper role in the determination of the action.
That structural point sharpens the prejudice analysis below. "No prior similar events" testimony does not just fail the relevance test in the abstract. Its only operative function is to communicate to the jury something compensatory damages law does not allow them to act on — that a violation, even if proved, was understandable, unusual, or out of character.
Rule 403 prejudice runs both ways — including the chilling direction
Most prejudice analysis under Georgia's analog to Rule 403 focuses on inflammation: the worry that an item of evidence will produce an artificially high verdict because, in the Georgia Supreme Court's recent phrasing, it may "inspire an emotional decision rather than facilitate a reasoned decision." Gallegos-Munoz v. State, No. S24G0214, 2024 Ga. LEXIS 196 (Sep. 17, 2024).
Irrelevant evidence may work the other way, too — chilling the jury rather than inflaming them, sapping the motivation for a reasoned application of the law to the relevant evidence. "No prior similar events" testimony chills in three distinct ways.
First, it makes the violation seem less important — an anomaly rather than a serious breach of professional duty that demands accountability. The framing artificially reduces the likelihood of a plaintiff's verdict.
Second, even when a plaintiff's verdict is rendered despite the chilling, the testimony reduces its size. By making the violation appear understandable or unusual, the testimony makes the defendant seem less culpable, and the verdict amount in a compromise jury reflects that perception. The reduction is the mirror image of the punitive-damages multiplier the law expressly forecloses in a compensatory case: a sub-rosa shrinking of compensatory damages on a culpability theory the law does not authorize.
Third — and most insidious — the testimony works on the jury's motivation to take the case seriously. It dampens the felt sense that something has gone wrong and that the law's job is to address it. The chilling effect is not a function of any specific factual inference the jury draws; it is a function of the emotional valence of the testimony itself, which softens the entire case posture.
The strongest evidence that the testimony has this effect comes from the parties' own behavior. In Keel the defense pressed the point repeatedly. Counsel asked Dr. Wall whether there had ever been an arrest before; the answer was No. The defense did not leave it there but emphasized the point. On the next question, Dr. Wall gratuitously added that the medication orders had been used safely for years. A few pages later, Dr. Wall added: "I've never seen it happen before." The defense's repeated insistence on the point is a tell. They thought it was powerful — and the chilling-prejudice analysis explains why they were right.
The cross-examination trap that compounds the prejudice
A final structural feature of "no prior similar events" testimony is that it cannot be effectively rebutted by cross-examination. The plaintiff has no realistic discovery vehicle for testing the truth of "we have never had this happen at our facility." Medical-privacy laws shield other patients' charts. Pretrial requests for adverse-event histories meet confidentiality objections that, in many cases, the defense will win. By the time the case is at trial, the plaintiff is in no position to put another patient on the stand to contradict the witness.
The result is a one-sided evidentiary record the plaintiff cannot rebut. In Keel, when the plaintiff first objected, plaintiff's counsel pointed out that because of medical privacy laws, the plaintiff had essentially no discovery that would allow any vetting of the surgeon's assertion that there had been no prior similar event. The trial court limited cross-examination to re-asking the same defense question — "whether or not [Dr. Wall] ever had an arrest such as this before" — but ruled that "going beyond that ... would be opening the door way too much." The plaintiff was thus put in the position of either letting the assertion stand untested or asking the same question and getting the same answer. The testimony was not subject to the kind of credibility check that the adversarial system relies on to manage disputed factual assertions.
The cross-examination disability is a feature of the kind of evidence at issue, not a contingent failure of plaintiff's counsel. Any plaintiff confronted with "this has never happened before" testimony will be in the same position. That structural one-sidedness compounds the relevance problem; it does not cure it. It is one more reason to keep the testimony out under Rule 403 even if the relevance hurdle were somehow cleared.
The portable frame
The doctrinal point is not Georgia-specific. Any state whose definition of the standard of care is profession-based — and that is the majority rule — will face the same analytical question when a defense witness offers a clean facility track record as evidence. The frame the Keel cross-appeal supplies is portable. Identify the four questions the jury must actually answer. Show that the defendant's track record bears on none of them. Distinguish the premises and products doctrine that the defense will almost certainly cite by name, and explain why the notice-driven relevance theory does not transfer to a setting where the standard of care already presumes notice. Refuse to let the trial court create a residual grant of relevance for any background fact that "might have influenced" a treater's decision. And, if the relevance fight is lost, run the prejudice argument in the chilling direction the standard caselaw is not built to address.
The category mistake at the heart of "no prior similar events" testimony is the substitution of the defendant's individual experience for the profession's collective standard. Once that mistake is named, the rest follows. The standard of care is what the profession requires — not what the defendant has so far gotten away with.
