Opinion
41300.
ARGUED MAY 3, 1965.
DECIDED JULY 14, 1965. REHEARING DENIED JULY 27, 1965.
Action for damages; malpractice. Fulton Superior Court. Before Judge McKenzie.
N. Forrest Montet, for plaintiff in error.
Troutman, Sams, Schroder Lockerman, William H. Schroder, T. M. Smith, Jr., contra.
1. The denial of a motion for nonsuit does not constitute the law of the case that a recovery for the plaintiff is authorized.
2. The proper standard of measurement for a jury to apply to the acts of a doctor to determine whether he exercised a reasonable degree of care and skill must be established by testimony of physicians, for it is a medical question; however, it is not necessary in an action for malpractice that medical witnesses testify by way of conclusion that the defendant was guilty of negligence as this is an issue for the jury's determination under the standard of measurement established by medical testimony.
3. The evidence in this case authorized, though it did not demand, a verdict for the plaintiff against the defendant doctor; and the trial court erred in granting the defendant's motion for judgment notwithstanding a mistrial.
ARGUED MAY 3, 1965 — DECIDED JULY 14, 1965 — REHEARING DENIED JULY 27, 1965.
Mrs. Blanche L. Andrews filed suit in the Superior Court of Fulton County against Dr. Randolph Smith to recover damages for personal injuries allegedly caused by the defendant's negligence in performing a surgical procedure upon her.
The plaintiff's petition alleged that the defendant on February 27, 1960, performed an operation upon her right shoulder for the purpose of removing calcium deposits, during which operation a horizontal incision was made in plaintiff's right arm in the shoulder area; that prior to the operation the defendant had x-rayed plaintiff's shoulder and was aware of the fact that the plaintiff had calcium deposits there; that during the course of the operation the defendant negligently failed to locate and remove these deposits, and though the defendant knew of the existence of the deposits in the plaintiff's shoulder, he closed the surgical wound in plaintiff's shoulder and discharged her from the hospital without again x-raying plaintiff's shoulder to determine whether or not the calcium deposits were still present.
The petition further alleged that subsequent to this operation the pain in plaintiff's right shoulder became so intense that approximately three weeks later the plaintiff was again operated on by another doctor for the purpose of accomplishing that which this defendant failed to accomplish in the previous surgical procedure; that in the second operation, a like surgical procedure was performed by the plaintiff's doctor who again opened up her right shoulder by making an incision which crossed the one previously made by the defendant; that the latter doctor did remove the calcium deposits from plaintiff's right shoulder which should have been removed by the defendant during the first of the surgical procedures; and that the second operation was necessitated by the negligent failure of the defendant to exercise ordinary care in carrying out the first surgical procedure as a result of which the second operation had to be performed on the plaintiff which resulted in aggravating the existing wounded condition of her right shoulder and arm.
The defendant was alleged to have been negligent: "(a) In making a horizontal incision on plaintiff's right shoulder instead of a vertical incision thereby limiting the area of plaintiff's right shoulder which could be explored by the defendant; and (b) In failing to discover the calcium deposits in plaintiff's right shoulder and removing same; and (c) In failing to x-ray plaintiff's right shoulder prior to closing the wound made by said surgical procedure performed by defendant; and (d) In failing to x-ray plaintiff's right shoulder before discharging plaintiff from the hospital where defendant performed said surgical procedure."
The plaintiff alleged that as a direct and proximate result of defendant's negligence she was required to submit to a second surgical procedure to accomplish that which defendant should have accomplished in the first operation and that "as a result of the two successive surgical procedures plaintiff's right shoulder now has a depression in it where the two surgical incisions were made in such a manner as to cross one another. Further, plaintiff's right extremity has begun to wither, and has developed fibrosis resulting in almost an entire loss to plaintiff of the use of her right extremity as well as causing plaintiff physical and mental pain and suffering from all of which she will continue to suffer for the remainder of her life."
The petition alleged that the plaintiff had lost $3,818 in wages as a result of the defendant's negligence and that her earning capacity has been permanently decreased by 50 percent. Damages were prayed for in the amount of $86,218.
The defendant in his answer denied the allegations of negligence against him, and asserted that during the course of the operation performed upon plaintiff's shoulder "he carefully examined the area of the operation and found no calcium deposits in that area." The defendant in his answer admitted, however, that on February 23, 1960, he made x-rays of plaintiff's right shoulder which revealed calcium deposits in that area.
The case proceeded to trial on the issues thus made and at the close of plaintiff's evidence the defendant made a motion for nonsuit which was denied. The defendant then presented evidence and made a motion for a directed verdict which was also denied. Upon the jury being unable to reach a verdict, a mistrial was declared at which time the defendant made a motion for judgment in his favor notwithstanding the mistrial. This motion was granted by the court and the exception is to that judgment.
1. It is first contended by the plaintiff that the order of the trial court denying the defendant's motion for nonsuit constituted the law of the case that the plaintiff had presented sufficient evidence to authorize a recovery in her behalf. This contention is without merit. "When a court passes upon a motion for nonsuit it decides only one question, that is, do the allegations and the proof correspond? In sustaining such a motion the court does not hold that the plaintiff is not entitled, under the law, to recover on the facts alleged; neither does the overruling of the motion decide that the plaintiff is entitled under the law to recover." Kelly v. Strouse, 116 Ga. 872 (4d), 883 ( 43 S.E. 280).
2. It was incumbent upon the plaintiff in order to present an issue for the jury's determination as to the defendant's alleged negligence to produce medical evidence from which the jury could find the want of due care, skill or diligence on the part of the defendant. Hollis v. St. Joseph Infirmary, 108 Ga. App. 309 ( 132 S.E.2d 841). This is true for the reason that in an action against a physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skillful manner, and the burden is on the plaintiff to show a want of due care, skill or diligence. Shea v. Phillips, 213 Ga. 269, 271 ( 98 S.E.2d 552). "The proper standard of measurement for a jury to apply to the acts of a doctor to determine whether he exercised a reasonable degree of care and skill must be established by testimony of physicians, for it is a medical question." Hayes v. Brown, 108 Ga. App. 360 (1b) ( 133 S.E.2d 102).
It is not necessary, however, that another physician testify that "the defendant was guilty of malpractice" ( Wilson v. Kornegay, 108 Ga. App. 318, 321 ( 132 S.E.2d 791)), it being sufficient if the court and jury are given a standard of measurement by which they may judge the acts of the defendant to determine whether or not he exercised a reasonable degree of care and skill, such standard of measurement being established by testimony of physicians. Pilgrim v. Landham, 63 Ga. App. 451 ( 11 S.E.2d 420); Howell v. Jackson, 65 Ga. App. 422 ( 16 S.E.2d 45). When competent expert medical evidence has been received, it is to be considered by the jury only as other evidence in the case. Pilgrim v. Landham, supra, p. 454; Word v. Henderson, 220 Ga. 846 ( 142 S.E.2d 244).
3. It is our opinion that the testimony of the plaintiff's medical witness was sufficient to establish a proper standard of measurement by which the jury could determine the issue of the defendant's alleged negligence in "failing to discover the calcium deposits in plaintiff's right shoulder and removing same," and that under the evidence adduced in behalf of the plaintiff, when so measured, a jury question was presented as to the issue of the defendant's negligence and whether it proximately caused or contributed to the plaintiff's subsequent condition.
Dr. Martin T. Myers, the doctor who performed the second operation on the plaintiff, testified that the x-rays made at his request on March 12, 1960 (after the operation performed by the defendant and before the operation performed by Dr. Myers), as well as the x-rays made by the defendant on February 23, 1960, disclosed the existence of a calcium deposit of a very hard composition in the plaintiff's right shoulder; and that upon operating he located and removed this deposit which he described as a "thickening of the bursa tissue, measuring about a half an inch long, about an eighth of an inch thick, rather cylindrical in shape," and being "practically the same density of bone, rather hard." Dr. Myers further testified that this calcified bursa was "very palpable, it could be seen with the naked eye"; that, while the incision made in the first operation appeared to be below the area in which the calcium deposit was located, by retraction, the bursa could have been observed during the first surgical procedure; and that the deposit located and removed by him would take many months to form, and in his opinion such deposit existed prior to February 27, 1960, the date of the first operation.
Dr. Myers also testified that a surgical procedure of this type was a "simple surgical approach to an underlying growth, which is very easily pressed and could be seen with the naked eye, and there was no difficulty in seeing it." In answer to the following question, "Do you know of any reason why an orthopedic surgeon in exercising ordinary care in performing this type of operative procedure on February 27, 1960, could fail to discover such a deposit as you said you found to exist?" Dr. Myers answered: "If he didn't have the proper landmarks on the bone, he might have missed it that way, overshot the site." The following question was then asked Dr. Myers: "Now, assuming an orthopedic surgeon practicing in Atlanta, Georgia, operates to remove calcified bursa from a shoulder which is previously observed on x-ray prior to the operation and does not find the calcified bursa after opening up the shoulder area, what if anything in your opinion should be done in good medical and surgical practice as regards x-rays of the shoulder prior to closing the incision, assuming that there are x-ray facilities available in the operating room?" (The evidence showed that such facilities were available when the first operation was performed.) Dr. Myers answered: "Only thing to do would be to take it under x-ray outlined by a marker, just where you think the bursa is, if after exploring and having continued in exploring it couldn't be found, then the x-ray would be the last resort."
The following examination of Dr. Myers then transpired: "Q. `What would be the purpose of x-ray? A. `To readjust your sites.' Q. `What is your opinion as to whether or not it would be good medical and surgical practice for an orthopedic surgeon practicing in the City of Atlanta, after operating upon the right shoulder and failing to locate the calcium deposits in the right shoulder which were earlier seen on x-ray of the right shoulder, to close the incision without making additional x-rays of the involved area? A. `Well, if one is sure then closure could be gone about safely, if there is any doubt then x-rays should be made.' Q. `Assume that a patient such as Mrs. Andrews was operated on in the right shoulder to remove a calcified bursa and during the course of the operative procedure no solidified mass was found and removed, and the incision was closed up, patient returned to her room, but that the patient continued to complain of the same gritty type pain in her right shoulder as she complained of prior to the performance of the operative procedure, what is your opinion as to whether or not additional x-rays should be taken . . . in good medical and surgical practice of the patient's right shoulder before discharging fer from the the hospital?' A. `If there was still persistent pain in the same location further x-ray studies and examinations should be carried out.'"
While the testimony of the defendant and his expert medical witness was in sharp conflict with the expert medical testimony of Dr. Myers, it is clear that the testimony of Dr. Myers, if accepted by the jury in preference to that offered in behalf of the defendant, when considered with the other evidence adduced in behalf of the plaintiff, was sufficient to authorize, though it did not demand, a finding that the defendant did not exercise due diligence in performing the operation in question; and that because of his negligence a second operation was immediately necessary which according to Dr. Myers "probably delayed healing and returning of proper function" of the plaintiff's arm. "And where, measured by the method shown by medical witnesses to be negligence, the evidence shows a bad result, it is the province of the jury to say whether the result was caused by the negligence." Pilgrim v. Landham, 63 Ga. App. 451, 455, supra; Word v. Henderson, 220 Ga. 846, supra.
In reaching this conclusion we have not overlooked the well settled rule that a physician or surgeon is not an insurer and cannot always effect a cure. Howell v. Jackson, 65 Ga. App. 422, 423, supra. According to the defendant's own testimony, if a calcium deposit had been found by him during the first operation, dramatic relief could have been obtained for the plaintiff and the record shows that the plaintiff did experience immediate and dramatic relief from the intense pain which she had suffered before and after the first operation when the second operation was performed by Dr. Myers.
Nor have we overlooked the testimony adduced in behalf of the defendant or the testimony elicited from Dr. Myers on the skillful cross examination of him by defendant's counsel. It is necessary here only to determine if there was sufficient evidence to present an issue for the jury and not to determine if the evidence demanded a finding for the plaintiff, which it clearly did not do. As stated above, the evidence was in sharp conflict and the jury was authorized to find not only that the defendant was not negligent in failing to effect a successful result in the first operation, but that even if he had been negligent in not locating the calcium deposit and treating or removing it, the plaintiff's subsequent condition was not caused thereby but was wholly due to the negligence of Dr. Myers in the operation performed by him, and not to that of the defendant. On the other hand, a finding was authorized that the defendant was negligent, that because of his negligence a second operation had to be performed to effect a result which should have been accomplished by the defendant in the first operation; and that because of the immediate necessity of performing the second operation, irrespective of how skillfully it was performed, delay in the healing and return to normal function of the plaintiff's right arm and shoulder was thereby occasioned for which the defendant would be responsible. Piedmont Hospital v. Truitt, 48 Ga. App. 232 ( 172 S.E. 237).
The determination of these very close and difficult issues of negligence and proximate cause was for the jury, and the trial court erred in granting the defendant's motion for judgment notwithstanding the mistrial.
Judgment reversed. Felton, C. J., and Deen, J., concur.