Opinion
48960.
ARGUED JANUARY 17, 1974.
DECIDED FEBRUARY 1, 1974. REHEARING DENIED MARCH 11, 1974.
Action for damages. Troup Superior Court. Before Judge Knight.
Reuben M. Word, James E. Weldon, for appellant.
Kelly, Champion, Denney Pease, Forrest L. Champion, Jr., for appellees.
Where in a malpractice case the ultimate issue to be determined, i.e. whether the defendant was negligent in improperly diagnosing and treating the patient, depends entirely on medical opinion testimony, the grant of summary judgment to such defendant is error.
ARGUED JANUARY 17, 1974 — DECIDED FEBRUARY 1, 1974 — REHEARING DENIED MARCH 11, 1974 — CERT. APPLIED FOR.
The plaintiff Mrs. Hogan sued her physician Dr. Major, the City-County Hospital of LaGrange, Ga., the pediatrician who was called into the case, the defendant-appellee Dr. Almand, and Children's Clinic for malpractice, the result of which she alleges caused the death of an infant born to her the previous day. The motions of Dr. Almand and Children's Clinic for summary judgment were granted and the appeal is from this ruling. The plaintiff relies primarily on the affidavit of the physician who examined hospital records and microscopic tissue slides following autopsy; since its statements primarily summarize the plaintiff's case we quote from it the following: "Based upon examination of these clinical records, and of the autopsy slides, in my professional opinion, my findings are as follows:
"1. Mrs. Hogan was admitted to the hospital with abnormally heavy vaginal bleeding, increased uterine tonus and a fetal heart rate of 106 per minute. A tentative diagnosis of partial placental separation was made. This diagnosis recognizes the existence of a life-threatening condition for the unborn child. In usual and ordinary medical care, such a diagnosis necessitates measures to deliver the infant as soon as reasonably possible. In Mrs. Hogan's case, the physician returned to his home and she received no further care from her physician throughout the night.
"2. During the course of the night she was repeatedly observed to be crying, in pain, and uncontrollable by the single attending nurse in the hospital. She was examined by that nurse and evidence of labor was not recognized.
"3. Nevertheless, at 6:30 a. m. this unattended woman in her first pregnancy had a precipitous unsterile, uncontrolled, spontaneous delivery of a live born baby which weighed 7 lbs. 5 ozs. Delivery occurred approximately 7 hours after admission. Neither physician nor nurse was in attendance.
"4. The diagnosis of partial placenta separation was confirmed by examination of the placenta, and a laceration of the mother which occurred during delivery was repaired by her physician.
"5. In spite of the fact that the diagnosis of placenta separation had been made, no consultation with another physician was obtained, no technique to accomplish early delivery such as caesarean section was considered and her physician went home.
"6. Since the child was delivered unattended and in conditions which were not sterile, it is not possible to say whether he became bacterially contaminated at the time of delivery.
"7. Within 4 or 5 hours the child had severe respiratory distress and thick bloody mucous was sucked from his lungs. The pediatrician was called to see the child; a diagnosis of hyaline membrane disease was made and therapy appropriate for that diagnosis was instituted.
"8. A diagnosis of pneumonia was not considered in spite of the fact that the child was delivered in a contaminated atmosphere and a therapy to cover the possibilities of infection was not instituted in spite of the fact that (a) acute bacterial infection is a common cause of respiratory distress in newborns, and (b) hyaline membrane is believed to be a disease of premature babies and this child was believed to be fully mature.
"9. The child died at approximately 29 hours of age.
"10. An autopsy was performed in which the major diagnosis was massive atelectasis (collapse) of the lungs due to hyaline membrane disease.
"11. My examination of the microscopic slides shows that the diagnosis of hyaline membrane disease is not warranted by the microscopic findings and that in fact the presence of large numbers of acute inflammatory cells throughout the single section of lung available establishes the more reasonable cause of death as acute bacterial pneumonia (infection).
"In my professional opinion, this child's death was due to acute bacterial infection which occurred at or near the time of birth. This unsterile, uncontrolled, unattended delivery could have been avoided by caesarean section and caesarean section was warranted by the physical findings and the diagnosis made by her own physician at or near the time of admission to the hospital. In my opinion the initial evaluation of patient in labor was correct, the medical care during labor was inadequate, the medical care at the time of delivery was inadequate, the diagnosis of the newborn's respiratory distress was inaccurate and the autopsy diagnosis was inaccurate."
Additionally it appears from the record that Dr. Almand saw the newborn infant on three occasions and had certain laboratory tests made during this time; in his testimony he states that the result of the tests was disregarded because at variance with clinical findings. There is no way at this point to judge the merits of this action and no opinion evidence bearing on this point was offered by the plaintiff.
Remembering that Dr. Almand was called into the case after the birth and swore that he was uninformed as to the conditions of delivery, the only paragraphs of the quoted affidavit which could relate to him are Nos. 7, 8, 11, and a part of the conclusion. It is recognized that these paragraphs create a jury issue as to whether the diagnosis is right or wrong, but the appellee correctly points out that the issue is not whether the diagnosis was wrong but whether in making it the doctor used that reasonable degree of care and skill required by Code § 84-924, and such as is ordinarily employed by the profession generally. Murphy v. Little, 112 Ga. App. 517 (2) ( 145 S.E.2d 760). The same degree of care and skill is required in making a diagnosis as is required in treatment. Norton v. Hamilton, 92 Ga. App. 727, 731 ( 89 S.E.2d 809). Improper diagnosis is not actionable per se, the issue being whether the physician has used reasonable care and diligence as a professional man. Stansfield v. Gardner, 56 Ga. App. 634, 644 ( 193 S.E. 375). We feel that since the burden is on the movant for summary judgment to produce evidence which will conclusively eliminate all issues of negligence from the case the issue of diagnosis still remains. Matthews v. North Cobb Tire Co., 120 Ga. App. 269 ( 170 S.E.2d 57).
The plaintiff's contention is that the infant did not die of hyaline membrane disease, a condition beyond medical therapy, as the defendants contend, but as a result of bacterial infection contracted during the conditions of the unattended birth; that Dr. Almand, had he correctly diagnosed the infection, might have administered antibiotics and other procedures which would have saved the life of the newborn, and that Dr. Almand's failure to investigate the possibility of bacterial disease in connection with the laboratory findings before him constitutes negligence. The defendants' opinion is that the laboratory findings were incorrect in the first place and would not have shown bacterial infection in the second. We have here a case which in the last analysis must be determined by medical opinion evidence both as to the cause of death, the method of diagnosis, and the proper treatment. It is in no way a case which, based only on the facts and in the absence of opinion testimony, could demand a conclusion one way or the other. See Anderson v. Crippen, 122 Ga. App. 27 ( 176 S.E.2d 196). In malpractice cases, while opinion evidence is sufficient in a proper case to present a jury issue "yet the opinion testimony of the ultimate fact to be decided in the case is never sufficient to authorize the grant of a summary judgment." Truluck v. Funderburk, 119 Ga. App. 734 ( 168 S.E.2d 657); and see Harrison v. Tuggle, 225 Ga. 211 (2) ( 167 S.E.2d 395).
Although these movants for summary judgment are not chargeable with the alleged negligence of the hospital and the attending physician, or even with knowledge of its existence, and although the ruling that a medical defendant may never rely solely on opinion testimony, although uncontradicted, to obtain summary judgment precludes this case termination at all to defendants where the ultimate issue must be determined by this kind of evidence (which makes the defense of malpractice cases particularly burdensome to medical defendants) nevertheless, the issue remains for jury decision, and the grant of summary judgment was error.
Judgment reversed. Stolz, J., concurs. Hall, P. J., concurs specially.
I concur in the judgment of reversal for the reason that in my opinion plaintiff, by introducing the affidavit of Dr. Freeman, introduced evidence sufficient to overcome the presumption that Dr. Almand used due care in diagnosis, and sufficient to create an issue of fact as to whether the diagnosis of hyaline membrane disease was negligently made. A substantial issue of material fact remaining to be determined, the grant of summary judgment was error.
Shea v. Phillips, 213 Ga. 269, 271 ( 98 S.E.2d 552). This presumption of due care, like all presumptions save presumptions of law, not involved here, recedes in the face of evidence.