Opinion
36190.
DECIDED NOVEMBER 29, 1956. REHEARING DENIED DECEMBER 12, 1956.
Tort; patient injured during operations, nonsuit. Before Judge Vaughn. DeKalb Superior Court. February 9, 1956.
Northcutt Edwards, Edwin R. Johnston, W. S. Northcutt, R. J. Edwards, for plaintiff in error.
James A. Branch, Thomas B. Branch, Jr., contra.
1. Where a general demurrer attacking the petition in a negligence case on the ground that it set forth no cause of action is overruled, and no exception is taken to the judgment overruling the demurrer, it becomes a final adjudication that the plaintiff is entitled to recover of the demurring defendants upon proof being made by a preponderance of the evidence of the facts alleged in the petition.
2. Since the judgment of the trial court unexpected to establishes as the law of this case that the petition states a cause of action, and since the plaintiff proved the case as laid without at the same time establishing the existence of other undisputed facts which would show that she was not entitled to a verdict, the trial court erred in granting a nonsuit. Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17).
DECIDED NOVEMBER 29, 1956 — REHEARING DENIED DECEMBER 12, 1956.
Hugh D. Phillips instituted a suit for damages against Dr. P. C. Shea, Jr., in DeKalb Superior Court. Later, upon Phillips's death, his administratrix was substituted as plaintiff in his stead. The petition as amended alleged: that Dr. P. C. Shea, Jr., a resident of DeKalb County, had injured and damaged the original plaintiff in a stated sum; that on April 1, 1953, he went to the Georgia Baptist Hospital; that the defendant was at the time a licensed physician and surgeon engaged in the practice of surgery for compensation in Atlanta; that while he was in the hospital as a patient the defendant made an examination of him and, while the relationship of surgeon and patient existed between them and for the purpose of aortography and X-ray, inserted into his right femoral artery a polyethylene catheter; that the said catheter was inserted in the artery through a 15-gauge needle; that prior to this insertion of the catheter there were no defects in it and it was of normal strength; that the length of the catheter was 30 inches; that he was given a local anaesthetic; that the defendant inserted the catheter into his artery for a distance of approximately 13 inches; that the defendant was in control of the catheter while it was being inserted and manipulated in his body; that the defendant handled the catheter in such a rough and careless manner while it was in his body that a portion thereof was broken off and remained in the artery, said portion being 15 centimeters or 6 inches in length; that the defendant manipulated the catheter in his body in such manner that it was not only broken off but the broken-off portion thereof was doubled on itself within the artery; that when the defendant withdrew the catheter approximately 8 inches of the catheter was removed at the needle hub; that when the 8 inches of the catheter was removed, the defendant knew that the remaining portion of the catheter was in his artery inside his body; that at the time the catheter was removed the petitioner was conscious and up to this time the defendant had used only a local anaesthetic; that the blood in the artery where said catheter was inserted flows directly and normally from the point where the defendant inserted the catheter to the popliteal bifurcation, which is the point in the leg near the knee where the artery divides; that at this point where the artery divides near the knee the artery is narrowed, a fact which makes this point particularly susceptible to obstruction by an embolus or foreign particle in the blood stream; that the defendant knew, or in the exercise of ordinary care should have known, of the danger of obstruction, by this broken-off piece of catheter, of the artery at this point of division near the knee; that he was given spinal anaesthesia for the additional surgery described in other paragraphs of the petition; that notwithstanding this danger of obstruction at this point near the knee, the defendant began cutting at the point where he had inserted the catheter and explored the artery in his body from the midline of the abdomen to the groin, a distance of more than 12 inches; that in this exploration the defendant exposed and palpated his entire right arterial system, including the aorta, bifurcation of the aorta, common iliac and femoral arteries; that the defendant then made incisions in the distal and proximal common iliac vessels of his body for exploration purposes; that the additional surgical procedures described in other paragraphs of the petition began about 1:30 p. m. and lasted approximately until 6 p. m. on the same day; that as a result of the extensive cutting he lost great quantities of blood and almost died; that the broken-off piece of the catheter had lodged in the popliteal bifurcation where the artery narrows near the knee; that following the amputation of the petitioner's leg, a section of said broken-off catheter was found in the amputated portion of the petitioner's limb at the place where it had so lodged; that when he returned from the operating room about 6:30 p. m. his right foot had turned black and his leg was turning black and dark spots extended up his leg nearly to his knee; that this discoloration of the petitioner's limb was caused by the stoppage of circulation at the place where said broken-off portion of the catheter had lodged; that the circulation had been cut off or impeded at this place for several hours at the time he returned from the operating room; that the defendant was in exclusive charge of the petitioner while he was in the operating room; that the defendant by the exercise of ordinary care and diligence should and could have discovered that the broken-off catheter had lodged at the place where it did lodge; that if the defendant had discovered the place where the catheter lodged he could have removed it without the danger, pain and suffering which the petitioner actually experienced and to which he was subjected by the negligence of the defendant as herein described; that the petitioner worked at his regular employment as a track-less-trolley operator until April 9, 1953, which was the day he went to the hospital; that the obstruction of circulation to his limb caused the petitioner's lower limb to be infected, blood poisoning set in, and as a result his right leg had to be amputated near the knee. The petition contained appropriate averments as to loss of the petitioner's earning capacity; and the nature of his injuries, one of which was that by reason of the defendant's negligence he was made a helpless cripple. The petition alleged that the petitioner's loss, damage, pain and suffering, loss of earning capacity and embarrassment was the proximate result of the negligence of the defendant as follows: (a) in manipulating said catheter so roughly while it was in his body that a portion thereof was broken off in his artery; (b) in failing to promptly examine the popliteal artery and particularly the portion thereof near the popliteal bifurcation where said broken-off catheter was likely to be lodged; (c) in failing before insertion of said catheter to test the same for strength to withstand the force and pressure to which the defendant subjected the catheter while in his body; (d) in failing, following the breaking of said catheter, to call to his assistance another surgeon competent to assist in the location of said catheter; (e) in failing to exhaust methods of diagnosis for presence of said catheter at or near the femoral bifurcation which is a narrow point of the arterial system that could be explored with much less danger than the portions of his abdomen that were actually opened and proved [probed]; (f) [stricken by amendment]; (g) in forcing said catheter into his artery with a degree of force that it had not been tested to withstand; (h) in failing to skillfully discharge the duty he owed the petitioner in performing said operations; (i) in failing to exercise reasonable care and skill in the performance of said operations; (j) in failing to exercise reasonable care and skill in inserting said catheter into his arterial system; (k) in failing to exercise the degree of skill and learning ordinarily possessed and exercised, under similar circumstances, by the members of his profession in good standing; (l) in failing to bring to the exercise of his profession on the occasions herein described a reasonable degree of care and skill in the exercise of his profession as surgeon; and (m) in forcing said catheter against hard and sharp obstructions in his artery.
The defendant filed an answer in which he denied that he had been negligent in performing the operation. Upon completion of the plaintiff's evidence summarized below, the defendant moved for a nonsuit which was granted and the plaintiff excepted, bringing the case here for review.
Dr. P. C. Shea, Jr., the defendant surgeon, testified: "Before I undertook to insert the catheter in Mr. Phillips's artery I was called in to see him on a consultation. I am a surgeon as well as a physician. . . The reason that I did this procedure was because this man was in ill health and because of an aneurysm, among other things, in the stomach and abdomen. An aneurysm, as Mr. Branch previously stated, to put it in quite ordinary words, is dilation of the walls of an artery and it can occur in any artery. It occurred in the large artery below his diaphram between the diaphram and the leg. Now, in that particular area we know there was an enlargement because we could feel it in this man's abdomen. It felt like a tumor right along the middle, right below his chest, and on the X-rays that we had looked at prior to the time I examined him, the X-ray of the other physicians, contained a rim of calcium, could be seen on the X-ray film running down the side, which indicated that the mass of the lump that could be felt was an aneurysm, because it is one of the few things in the abdominal cavity that can cause calcium in that fashion. What we were concerned about in this particular patient was whether the aneurysm involved his renal organs, because the arteries of the stomach — in fact the arteries of the leg all come off this main artery that runs down the center of his body, and if the aneurysm was of such a nature that it involved the artery of the kidneys, there was very little that could be done about it, if anything, except that perhaps control the procedure that he had with high blood pressure. One of the kidneys could have been taken out.
"Now, the purpose of the procedure that I did was to thread a catheter, which is a piece of tubing, into the aneurysm through a needle, and through this piece of tubing squirt in dye, which is a procedure that is done every day in every hospital in the city, and take an X-ray with dye circulating around the blood in that aneurysm, and actually outline the aneurysm to show the extent of the — show if the artery to the kidney was involved or not. Now, there are two ways we get dye into an aneurysm. One is by a direct needle puncture, which in Mr. Phillips's situation would have been extremely hazardous, because we knew all we had for main-stream arteries in his body was sort of an egg-shell sack. We could tell that from the calcium that lined the outside which we saw on X-ray. So if you take a large needle and place it through this patient's back it is apt to scar or tear that particular area and the patient may bleed to death. Therefore we vetoed that procedure as hazardous. The other alternative is to direct the catheter — this same piece of tubing — into an artery into the leg, which is a connection of this main artery, and thread it up into the sack that we are trying to outline with dye, and then after threading it up in there, squirt dye in there and outline the aneurysm. To do that procedure, we took the patient to X-ray, after he had been sedatived — after he had been given some medication to prevent any possible reaction to the medicine being used to keep the patient comfortable and make it less tiresome procedure. And also to do it, we use local anaesthesia, which is customary except in very young children, and make a small incision in the skin below the groin, directly over the thigh, so the artery is directly in sight, and then a needle is inserted and when — you can tell when the needle is in the artery because the blood spurts back out the needle and the patient doesn't lose any blood. Then the catheter is threaded through the needle up in the artery just below the groin and will find its way up to the mid-portion of the abdomen or the stomach where the dye can be squirted in and X-rays obtained.
"The type tubing counsel holds in his hand is Intramedic Polyethylene Tubing, PHF 90. I had thirty inches of that tubing to begin with when I inserted it in Mr. Phillips's artery. Just below the groin on the right leg is where I opened the skin, and the catheter was inserted through a 15-gauge needle into the superficial femoral artery. The needle was pointed toward — it was pointed in two directions if I make myself clear. One was in reference to the artery itself and one in reference to the blood flow. As far as the artery is concerned, if you can visualize a straight tube, a needle was pointed toward the opposite wall yet the opening of the needle pointed toward or in opposition to the blood flow in the artery. The blood flows, as you know, down this way [indicating] and on down the leg, so that the general direction of the needle was back toward the opposite wall of the artery but up toward the heart. The natural flow of the blood in the artery where I inserted the catheter was from the heart toward the extremities. The tube was inserted to go up toward the heart. I put approximately eight or ten inches of tubing in the superficial femoral artery. The area that I was going to explore was up in the abdomen. The purpose was to put an opaque fluid up in the abdomen so I could outline the aneurysm itself. I put some fluid in the artery while the tube was in his body. I made some pictures of that at the hospital while the fluid was in the catheter. When I began to insert the tube I experienced difficulty or obstruction and I was inserting it against the blood stream. The aorta is a main artery which goes down through the center of the body and that is where it divides, still inside the abdominal cavity. It divides to branch out into the other branches and through the legs. It was not one of these branches into which the aorta divides into which I inserted the catheter, nor does the artery into which I inserted the catheter come off the aorta; there is another artery in between the common iliac and then the common femoral. The superficial femoral branches off the common femoral. The superficial femoral was the artery into which I inserted the catheter and the tube went into the common femoral and into the iliac and then up the iliac to the bifurcation of the aorta. I know it went up to the bifurcation. We had X-ray pictures to show. The point to which it went was about ten or eleven inches.
"When you feel the catheter you will find it is extremely pliable and soft, and you felt a sense of resistance as if something was grasping the catheter, as if you tried to pull a string through your fist closed hard. And any time you meet the least bit of resistance on a procedure like that, that's it, because there isn't anywhere to go. The catheter is soft and pliable and it won't advance unless it just slides along like a snake in wet grass. I can't remember whether I met resistance before we took the first X-ray. I believe we took X-rays to see where the tip of the catheter was. In reference to the effort I made to get past the obstruction, I expect we moved the catheter back and forth four or five times without moving it from the artery. I mean, you slide something up like that and feel the resistance and then withdraw it party way and then manipulate it and slide it up again. The second time I slid it back and forth four or five times. We encountered the resistance on two occasions. I think one time they had an X-ray picture and knew it had to be advanced and usually you advance and then withdraw them to make sure you are not encountering resistance. I think there are two X-rays showing the catheter in the artery. They show it actually reached the bifurcation of the aorta. In reference to the successive attempts to advance the catheter in the patient's arteries, I encountered resistance one time and couldn't get any further. I was going in the same direction the second time and encountered resistance. I couldn't get the catheter through any time. One time we advanced the catheter part of the way, then stopped. There were only two times we met obstructions. When we advanced the catheter part of the way and stopped, it was advanced into the iliac and common femoral artery, and we never did get it past the bifurcation of the aorta. That was the place we were trying to get beyond. I knew profound arteriosclerosis existed in this area and that the arteries were hard and stony except for immediate anterior aspects. As the operative record says, the incision was carried down through the soft tissues to the common femoral artery, the inguinal ligament was bisected directly over the femoral iliac vessel, and the common femoral was opened occluding soft rubber tapes in a similar manner to the superficial femoral below. I don't know whether anyone knows the cause of it. The incision was extended to the curved linear fashion up to the midline, the right rectal muscle was relaxed by traverse incision of the arterial fascia; by sharp and blunt dissection the peritoneum and inter-peritoneal contents were pushed back at the site of exploration, and the entire arterial system, aorta, bifurcation of the aorta, common iliac, femoral, was exposed, palpated. Well, we suspected the catheter was in the section of the artery that Mr. Northcutt [of counsel] has just described to you and there was such a rim of calcium material or arteriosclerosis, which is hardening of the arteries, there is such a rim of it on the back wall and a portion of the front wall of the man's arteries in the area we are looking at, and we are feeling him, that all you can feel is this stony, brittle material in the artery itself; and therefore we had such a small piece of material as this [indicating] inside the artery, it was impossible to feel. I didn't palpate the section where I exposed the arteries because of arteriosclerosis. If he had arteriosclerosis above my incision he had it below. It was a generally recognized condition. Through those arteries I had actually inserted this catheter ten or eleven inches against the flow of blood. From the point of the incision the normal flow of the blood was down to the knees. I made the insertion in the superficial femoral which continues as one artery down to the leg. When that one artery goes down to the knee it branches off into several branches around the knee and there is one more branch — it continues as one branch, one main pole, and just at the base of the knee in the back of the leg it branches into three different arteries. This is the same artery into which the catheter was inserted that branches off into all those, just like the trunk of a tree giving out three limbs. Those branches are smaller than the artery I made the insertion in. Some of the branches go off at angles, others do not. I would say there are four known branches that are a continuation and there are some others that come off the superficial femoral. All of the supply comes from the artery in which I made the insertion, and when the blood is going from the heart toward the foot that is the normal flow. About the knee this artery in which I made the insertion divides into those smaller arteries. Some of the arteries branch off at an angle and there is some angle in the main one. One of them remains straight. As a normal thing the one that remains straight is half as large as the parent artery. This point where the arteries divide in medical circles is recognized as a dangerous point. If something is in the artery at any place where there is a division it is likely to lodge. That is true of any place where the artery gets smaller. It could lodge, for instance, at the bifurcation of the largest artery in the body. I could not by feeling the arteries that were exposed, the entire right arterial system, aorta, bifurcation of the aorta, and common iliac and femoral, feel the tube. I could not have felt it if it had been there because the rim of calcium and the calcium plaques made it impossible to feel. The same thing would have been true about the arteries below the point of insertion. A greater portion of the walls of all these vessels were stony hard, they were extremely tortuous and contained large calcific arteriosclerotic plaques. If you realize there is an obstruction in an artery, the most satisfactory way for the patient is to locate by examination — by palpation. If the artery is completely obstructed, the blood pressure will be higher above than below. If the artery is partly obstructed there might be no difference in the blood pressure at all. If there is an obstruction sufficient to cause the portion of the body beyond the obstruction to turn black there would be a difference in blood pressure, if you could take the blood pressure in that particular area. If there is an obstruction in the artery of a human being, the difference in the pulse above and below the obstruction would be that above the obstruction there would be a pulse, and below the obstruction would not be a pulse. The top of the foot is commonly used for taking the pulse, in the area behind the first two toes, and another place in the foot is immediately behind the inside ankle bone. When I removed the catheter from Mr. Phillips's body about six inches came out, and I knew the rest of it stayed in the artery. I did not take Mr. Phillips's pulse in this right leg at either one or the other places mentioned in his foot, but it was not necessary. The reason I did not take his pulse was because the artery that would allow blood to flow down to the area where you could take the pulse was obstructed at the point where the catheter was put in. The artery is a continuation of the same artery into which I inserted the catheter for a distance of about eleven inches. I did not take the pulse in the foot. I can't get a pulse if the artery is obstructed at a point above it, and you have brought that out in your question [addressing counsel]. I explained to you that if the artery was completely obstructed, then no pulse could be felt so therefore it wasn't necessary in this particular instance to take the pulse beyond the point where the needle was because we obstructed the artery at the point just below the needle and there were certain purposes in our doing that. The pulse can be taken in the area back of the knee. If there is an obstruction in an artery above and below that point the difference that will normally exist in the temperature differentiates to a great extent on what is wrong with the patient, how much difficulty he has beforehand. For instance, in a young man who has a sudden obstruction, his foot would turn cold and in an older man who has hardening of the arteries his foot is not apt to change temperature at all. In a normal patient with normal arteries there would be a difference.
"There is an instrument called an oscillometer. It is a type of machine that has a cuff on it something like an ordinary blood pressure cuff and it can be wrapped around various portions of either the upper or lower extremities, and it has a dial on it with an oscillometer; and with the switch thrown over so that the air in the gauge is in continuity with this blood pressure cuff, certain oscillations will occur, will measure motion — oscillations will occur with changes in pressure in the leg or any sort whether they are due to sudden changes in pressure due to the blood supply. An oscillometer does not measure changes in the blood pressure. It measures abrupt changes in motion of the leg. Actually you can move your finger with one of these cuffs around your arm and you will have oscillations. By the use of an oscillometer in a point above an obstruction in an artery in a patient and below the obstruction in an artery is not always helpful in locating the obstruction in an artery. Occasionally it will, particularly in young people. Physicians have an instrument they call a sphygmomanometer. I have used those. The machine cannot be helpful in location of obstructions by itself. It cannot help very well because the oscillometer would work better. I did not attempt to use an oscillometer on Mr. Phillips for the same reason we didn't attempt to take the pulse at the time, because we had occluded the artery before we withdrew the needle and after we withdrew the tubing. When I took the tube out I had not occluded the artery below the needle, but the artery was closed by virtue of the way we did the thing. It was closed because it had the plaques in it and the fact that the needle — the large needle and in withdrawing it from the artery you hold the artery between the finger and the needle and withdraw it. I judge the artery's diameter was four millimeters where I inserted the needle, the diameter of the needle two millimeters. I explain the difference in the artery's four and the needle's two millimeters because of the spasms; these arteries had actually gone into spasm and shut down.
"Dr. Ross had no connection with this procedure at all. After the leg was amputated we sent the specimen (the leg) to Dr. Charles Ross, the pathologist at Georgia Baptist Hospital. When I inserted the catheter I did not intend to break it off in the artery. The reason I did not leave it there, I wanted it removed, because we don't intend to leave abnormal materials inside a patient for any length of time. After two or three months it might have become a dangerous thing. I don't know whether you can prove it was dangerous at the time. I would not advise leaving a catheter six or eight inches in a man's artery because it might produce inflammation; it might go down to a point where it obstructs an artery, might travel somewhere else in the body. We don't know where it might cause some type of damage. If it happened to go down to this popliteal bifurcation and completely obstructed the artery it would be dangerous. The limb in which I inserted the catheter was amputated three weeks later. There were two reasons we amputated the man's leg. One of them was because of the extreme pain the patient experienced. On a couple of occasions the patient requested that his leg be amputated. The other was he had lost the blood supply to leg and foot. He had thrombosis of his popliteal and femoral arteries — he had thrombosis of the main artery behind the knee and the branches that lead off. That is the same thing as a blood clot. The artery could be obstructed by hardening of the arteries or other types of diseases such as Burgle's disease. If the catheter completely obstructed the popliteal it could cause the blood to clot. He had inflammation of the four arteries below the knee. It was blood poisoning. There are two types of gangrene, and the type of gangrene that he had was dry gangrene: the type of gangrene that comes from the drying of tissue when it is not supplied by blood. An obstruction there at this bifurcation would be a very good reason for its not being supplied by blood.
"When the limb was amputated three weeks later and sent to the pathologist, he found this broken catheter right there, but that was not all they found. They found the artery was filled with recent blood clots. A blood clot can normally develop in any artery anywhere, any time. It can develop locally. It developed around the catheter and below it. The catheter nor the blood clots, alone, were large enough to obstruct the artery at that point, but the two could do it. I don't know whether anybody can prove the blood clots were not there before the catheter. But when they found the blood clots they found the catheter. He could have had the blood clots before the operation was performed. All I know about the blood clots was that the pathologist said it was a very recent blood clot. He examined the leg right after we amputated but that was three weeks after we did the operation. The original catherization was about twelve noon. When I withdrew the catheter and part of it didn't come out, I sent Mr. Phillips to surgery — from the X-ray room to surgery. I gave him a general anaesthesia and put him to sleep. We stayed in the operating room until 5:30 o'clock. The operation began at 1:30 and was completed at 4:30. We took the patient to the operating room. He was anaesthetized or put to sleep, and I looked directly at the area that I had put the needle in, to make sure the catheter wasn't around the needle, and at that point, immediately below it and above it and several different areas in the arteries. We made incisions into that artery to determine whether the portion of the catheter that was left inside was still there. The artery is stony-hard. You don't feel that small catheter. So it could be only in several points, and that is a distance of about that long [indicating], and I think we made four tiny little incisions and washed and irrigated and looked to see if we could find this section of tubing if it was present. Those incisions were ultimately closed so that the blood-flow was established. And that is essentially what we did. I explored and examined the femoral artery into which I had inserted the catheter from both ways, towards and away from the heart by different incisions. We looked it over down toward the knee about an inch and a half. The reason we looked down below was to adjudge the condition of the artery and we realized at the time the catheter couldn't have passed that point. We had to expose an inch and a half so we could control bleeding that might occur and see that the thing was handled properly. I only needed a small incision in the skin to put the needle in, but when I opened the artery for a distance of a centimeter or so, which is a little less than half an inch, then I needed more exposure of the same artery to gain entrance in it and around the artery so there wouldn't be any bleeding. The loss of the catheter was important enough for me to be there three hours while I made the exploratory operation looking for it. No operation on any parent artery is a minor operation. When I put the catheter in there I considered it a major operation. If there was any way of telling where the catheter was, I could have opened the artery at one place. The length of the incision in that event would have depended upon where the catheter was. If the catheter had been in the artery where I inserted it, the incision would have been about an inch and a half. If it was at the popliteal bifurcation, you would have to make an incision at the back of the patient's leg in the form of an "S." If we had known exactly where the catheter was we would not have had to explore the artery at more than one place. The sentence in my report that says I exposed the entire right arterial system referred to this specific operative procedure. In this operative procedure a description of the man's skin was made. Now you can only operate within the limits of the skin incision. So within limits of that incision this description applies because the entire right arterial system, aorta, bifurcation of the aorta, common iliac, femoral, was exposed and palpated, and we consider that was within the limits of that incision on the man's lower abdomen and on the leg. Now if you were considering the word literally, his entire right arterial system would have been from the top of his head to the tip of his toes. The incision I made was about thirteen inches long. I explored and palpated the aorta, the bifurcation of the aorta, the common iliac. The catheterization, including the taking of the X-rays, is all one simultaneous procedure, and all-told we were in the X-ray room probably about 25 or 35 minutes. That includes making the incision, setting up catheter and putting the needle in and taking X-rays and fluoroscoping the patient. The needle was in Mr. Phillips's body 12 to 15 minutes. It took probably three or four minutes for me to insert the catheter. To retract it an inch or two would require about fifteen seconds, just sliding it back and forth, slowly. On five successive attempts I met resistance and each of those attempts consumed a minute or two. The one time that I took the catheter out I found that part of it was left in the artery. There was no visible defect in the catheter — it was examined to make sure there wasn't any. It is a polyethylene, clear material and it was examined to see that there were no light defects, such as a crack or refractory change that would indicate it had been tampered with. Another thing, the catheter was tested for tensile strength by pulling. Nobody but me handled the catheter while it was in Mr. Phillips's body. When a part of the catheter came out, I knew the rest was in his body. I did not give him a spinal anaesthesia for the three-hour operation, but administered a general anaesthesia. The common iliac is one of the arteries I exposed looking for the catheter. The length of incision and time of operation had I known where the catheter was depends on what artery it was in and where you are operating. If it had been in the popliteal bifurcation it would have taken two or three hours. It would have been more serious in this instance because if it had been in that particular area, and if we had operated in that particular area, he would have had one hundred percent loss of his blood supply in his extremities, to his leg below the knee. The popliteal is in the back — you have to approach it from the back because the knee joint is in front. It is right against the knee joint in the back. And also those tissues in the back of the leg, as you know, when you bend your leg, are bound down tight to the joint, and by the time you have exposed the popliteal artery you have a hole that deep [indicating] in the patient's knee, because the tissues and fat and all bulge out of it and are in the way as you go down toward the artery. The tissue are muscles, nerves, veins and branches of the popliteal arteries, tendons. I am talking about all the branches of the popliteal artery. The broken catheter was, as I remember, found above the smaller branches in the popliteal. The popliteal artery lies back of the knee. The bifurcation is at least an inch and a half or two inches below the lower portion of the knee cap. It is in the back part of the leg where the calf muscle starts. The catheter did not go that far; it went to the middle of the femoral artery, that would be in the knee. If the catheter had not broken the first operation would have lasted thirty to fifty minutes. There are not any particular standard limits for a procedure like that. It depends a great deal upon the conditions that exist; sometimes it takes less than ten minutes. If the X-ray picture taken is a good one, it outlines the aneurysm. I was compensated for my services."
Dr. Irvan B. Ross, a witness for the plaintiff, testified: "I am assistant director of laboratories at Georgia Baptist Hospital and have been since January 1, 1950. I have charge of examining all surgical specimens, both grossly and microscopically. I have charge and responsibility of doing or supervising the performance of autopsies. I also have charge of the clinical laboratories, hiring of technicians, and am responsible for all procedures performed in the laboratory. Actually, Dr. Funke is the director, but he is an old man and I have more or less taken over the greater part of the laboratory procedures. The specimen [referring to Mr. Phillips's amputated leg] on May 13, 1953, was placed in the refrigerator when it was sent down from surgery. Following this I examined the specimen and described its gross characteristics. The findings I recorded in the reports headed `Tissue Examination' and `Pathologist's Report' which have been identified as Exhibit E. These reports are the gross and microscopic findings in the case of Mr. Hugh Phillips, following the amputation of his right leg. I made the report. We considered what came to us as one specimen. Any one case is considered one specimen, but in this instance this actually can be considered as two specimens inasmuch as there was a section of tissue submitted having been detached from the amputated leg. The detached section, as near as I could determine, was a section of the popliteal artery. It was two centimeters in length and one or two centimeters in outside diameter. A portion described in my report apparently refers to the inside diameter of the artery, although that is not officially stated in the report. I opened the inside section of the femoral artery longitudinally. There was a considerable degree of arteriosclerosis and a 2-centimeter section of plastic polyethylene tube. I am referring to the dimension of length. It was to the best of my knowledge white. Of course it was bloodstained. We do not have it in my department now to my knowledge and I do not know what became of it. The second portion of the specimen as described in the second paragraph of Pathology Exhibit E was a right leg, which had been amputated 23 centimeters above the right knee. The report designated as Pathology E was made by me and to the best of my knowledge is correct. That is the report I made of the examination. The greater part of the foot and leg was fairly normal skin color but just below the popliteal space on the back part there was a very dark red area which was almost black in color. Generally speaking the popliteal area on the back part of the leg is just above the knee. I would say it is 18 centimeters long. The popliteal artery roughly speaking extends through the center of the popliteal space and its bifurcation at the bottom of the popliteal space. The bifurcation of the popliteal artery is at the lower extent of the popliteal space. There was discoloration of the foot, and in the popliteal area between the popliteal space and the foot in the posteria it was reddish brown, beginning to turn black. In my experience as a pathologist, when we find such discoloration we look for something blocking the artery supplying the foot. Ordinarily that blockage would be on the inside of the artery although there are conditions when you could visualize it being on the outside. In the particular part of the specimen to which I last referred the veins were distended and rather prominent. I opened the femoral artery longitudinally and examined the walls and the lining of the artery and the contents therein. As I recall, I made the examination to the bifurcation of the popliteal artery. There was arteriosclerosis. Going down toward the foot after the popliteal divides there are the peroneal and posterior tibial. I can't recall that my dissection extended that far. Within the right femoral which I dissected I found a polyethylene catheter both in the first portion of the specimen described in Exhibit E and a similar type of catheter in the second portion of the specimen. I do not recall the length of the catheter. The tube was milky white and bloodstained. It was not perfectly straight. At the bifurcation of the popliteal artery in the peroneal and posterior tibial, the polyethylene tube had been bent back on itself for about a distance, as near as I can recall, of three centimeters. I would say three centimeters would be about a quarter of the popliteal space. It bent back toward the heart. I cannot recall the exact diameter of the tube but as near as I can recall it was P. E. 90. The P. E. 90 catheter I found in Mr. Phillips's artery was not mashed together to the best of my knowledge. The catheter you hold in your hand for almost all the distance is uniformly cylindrical. That type of catheter as near as I can tell would be about 1.5 millimeters. That is its outside diameter. And the section I found doubled up was twice that size. I would estimate there were two millimeters on each side. It would be four millimeters. The doubled catheter was in the popliteal artery at the bifurcation of the popliteal. The length of the catheter doubled on itself was, I estimate, three centimeters, one end extended to the most proximal part of the artery, I believe for 15 centimeters. In the presence of arteriosclerosis, which necessarily causes variations in the size of the artery, it could well cause obstruction of the blood flow to the part below it. I don't believe I can answer yes or not as to whether obstruction of this character at the popliteal bifurcation is more or less dangerous than at some other point. The arteries divide at the popliteal bifurcation. The diameter of the two arteries that divide off is normally smaller than the diameter of the popliteal. The arteries that divide off divide at an angle. That dividing point is a point where the obstruction could easily occur. At practically any point below the popliteal bifurcation the pulse can be taken. Physicians frequently take it at the mid portion of the foot on the upperaspect. Below the point where the artery is obstructed no pulse will be felt if the artery is completely obstructed. If it is partly obstructed the pulse would be weaker. I mean at the point distal from the obstruction; that is the point farthest away from the heart. I examined the artery in Mr. Phillips's leg and there was a considerable amount of arteriosclerosis present. I mean I found in Mr. Phillips's leg deposits of calcium. I might add, deposits of calcium with cholesterol, which accompanies the deposits of calcium. To a layman, what I found was small, sharp rocks. Some of the deposits are soft, some hard. Some of these were soft, some hard. Those I found in Mr. Phillips's leg were sharp. I believe it possible that they could cut the catheter in two. There can be such substantial deposits in severe cases of arteriosclerosis that they alone can obstruct the artery. There are three arteries below the popliteal bifurcation. I mentioned the peroneal, posterior tibial and there is an anterior tibial. In addition to the catheter there was present considerable thrombosis in Mr. Phillips's arteries; there was what I would call soft thrombosis surrounding the catheter. I did not examine below the bifurcation; in a leg that has been amputated there is bound to be blood within the arteries and it would be difficult. The 18 centimeters of catheter I found in the leg was continuous. The farthest I found the catheter was at the bifurcation of the popliteal artery. The farthest end of the catheter was at that point. A catheter is very flexible and it will stretch. I found three centimeters that had flexed back. I do not recall having opened any part of the peroneal artery or the posterior or anterior tibial. Everything I found was proximal to those arteries with the exception of the gangrene of the soft tissues. I did cut into the soft tissues and made microscopic tests of those. The normal relation between an obstruction and the thrombosis surrounding it is that the thrombosis causes the obstruction. If you have an obstruction in an artery, the blood that comes down to it just can't pass. It will keep piling up toward the heart. The blood piling up would eventually form a clot. It will form a clot first and when it stops there long enough it will form a thrombosis, but the first thing that would happen would be the clot. I estimated that the outside of the catheter was 1.5 millimeters. The chart from which I removed that shows the outside diameter is 1.27 millimeters. I will take the chart's word for it and feel that it should be considered 1.27 millimeters."
The plaintiff testified: "I am Mrs. Jessie H. Phillips, widow of Hugh D. Phillips, named in the letters of administration. I remember when my husband went to the Georgia Baptist Hospital for a catherization. He worked the night before, driving a trolley and completed his run of 9 hours. At that time he weighed between 175 and 180 pounds. He was in the hospital a few days before the catheterization. I was at the hospital the morning of the catheterization and before it was begun he was in a weakened condition but he knew what he was doing and could walk. He got up and went to the bathroom. He had both limbs at that time. They came for him for the catheterization 15 or 20 minutes after 9 o'clock and I did not see him again until 6:30. Dr. Mills called me on the phone at 4:30 and told me what had happened which was the first any doctor had talked to me. When my husband came back, his right foot was black to its bottom, as black as it could be, and it had begun to go up to the top of his foot and on up his ankle 12 or 13 inches; up above his ankle was turned. There were black spots on his foot but reddish blue on the top of his foot and ankle. There was nothing wrong with his foot when he went in; but when he came back his feet were not alike; there was not anything wrong then with with his left foot. The spots were blue-looking on his left leg, and the black was on his right leg. The bottom of the left foot was not discolored. My husband was in the hospital 43 days from April 9. From the time my husband came back that day from the operating room at 6:30 until his right limb was amputated the blackness of his right limb did not disappear but it got worse all the time; I do not know if any clothing was put on it. Until the amputation I visited him all the time except at night — I was with him until 11 o'clock at night when I had a nurse to come on and stay until 6 in the morning and I was there when she left; I stayed at home 3 or 4 hours each night. Sometimes my husband was not rational when I conversed with him but he had not been irrational before he went to the hospital. He could not turn himself or move normally — we had to pick his leg up and move it and it was not easy because he hollered and screamed every time. We moved it every 30 minutes. That had not happened before he went to the hospital. He had not taken morphine or sedatives before, either. I noticed his foot was cold after the change; lasted until it was amputated. The leg was like it was petrified — the right one. It was June 21 when he came home, but his life was not like it had been at home; he was helpless. I nursed him. He got where he could get up and he could hobble around a little bit on crutches but very little. He couldn't hold out to walk across the house hardly. He never used crutches before he went to the hospital. There were a couple of kinds of medicine for nerves he took when he came back — prescribed by Dr. Veatch and part of the time by Dr. Mills, but he never had used anything like that before he went to the hospital. He was never able to work again. He would get out and walk around the house and I carried him fishing a couple of times. We were on that little farm in Clayton County with a horse and cow which he looked after before he went to the hospital but not, after he came back — he was not able. He got a pay check from the Power Company in January and one in April but no more except his pension which started in November before he died in June. He had worked for the Power Company 33 years and he was now 57 or 58. Before going to the hospital he had never lost a day; his health was fairly good. Dr. J. W. Veatch, Jr., came to see my husband while he was in the hospital. He was one of the company doctors."
Herman Phillips testified for plaintiff: "I am the son of Mr. Hugh Phillips, live in College Park, and work for Lockheed Aircraft as a production supervisor. Dr. Shea discussed the catheterization with me at the hospital before it was done, and as I remember he said he was going to make one incision and insert a tube in the artery and it would be a very minor operation, and it wouldn't take too long for that. I was there at the hospital every day after the catheterization. I was there when he was catheterized but the next I heard anything about my father was around 6 or 6:30 in the afternoon, and he was awfully weak and complaining about his right leg; his right foot had started turning a dark color and he complained he could not stand anything like cover on it — it hurt his leg, his foot hurt. That lasted until he died, but it was not the case before he went to the hospital. I was at the hospital mostly in the afternoons until his limb was amputated, sometimes all night. He would ask for medicine to stop the pain and did until his death, but he had never taken medicine for that before he went to the hospital. He left the hospital in May. He had smothering spells and complained of his back and leg hurting. I lived in Smyrna and would take him in the car and lots of times on the way I would have to stop and rub his back, control his emotions or something during the twenty miles there. He would holler out at night. That condition existed at the hospital but not before he went — his health had been fairly good so far as I know. He seldom missed a day from work. He had hunted and fished before he went to the hospital. Usually on Saturday he spent the day hunting, but after he went to the hospital he could not. I took him to my place and usually he would sit on the front porch or in the car, and I took him around and he stayed in the car and hunted — after he came back. But he was not able to control his right limb — it had spasmodic spells of jumping and shaking every day. They would last 30 minutes or an hour. He often had chills. Did at the hospital and after he got out. He never had them like that before he went to the hospital."
In order to conveniently designate the parties referred to in this opinion, the plaintiff in error, Mrs. Jessie H. Phillips, will be referred to as the plaintiff; the defendant in error, Dr. P. C. Shea, Jr., as the defendant; and Hugh D. Phillips, who originally instituted the action and in whose stead his administratrix was substituted, will be referred to as the patient.
The cause of action alleged in the petition and upon proof of which the plaintiff relies for recovery was that the defendant, a surgeon, proximately caused serious injuries to the patient by his failure to exercise ordinary care in performing two operations, one a diagnostic operation to ascertain the location and extent of an aneurysm in the patient's abdomen and the other an exploratory operation to find a piece of plastic tube or catheter broken off in the patient's arterial system in the course of the first operation. These operations in the ensuing discussion will be referred to after the order in which they occurred as "the first operation" and "the second operation."
This being an appeal from a judgment of the trial court granting a nonsuit, the only question here is whether the plaintiff proved the case as laid in the petition. Archer v. Johnson, 90 Ga. App. 418 ( 83 S.E.2d 314); Hardin v. Nicholas, 90 Ga. App. 738 ( 84 S.E.2d 110); Bradford v. City of Commerce, 91 Ga. App. 581 ( 86 S.E.2d 645).
The defendant contends the evidence failed to prima facie prove the case as alleged and hence that the trial judge was right in granting the nonsuit. He particularly insists that the plaintiff's proof was insufficient for the reason no expert witness in the field of diagnosis or surgery testified to the direct opinion that he was negligent in performing either of the operations, or that negligence on his part resulted in injury to the patient. In support of this position he cites several authorities, all stating the same rule as to the necessity for expert opinions in matters of diagnosis. Perhaps the best-worded and clearest pronouncement of the rule is found in Pilgrim v. Landham, 63 Ga. App. 451 (3) ( 11 S.E.2d 420), as follows: "What is the proper method of diagnosing a case is a medical question to be testified to by physicians as expert witnesses. Laymen, even jurors and courts, are not permitted to say what is the proper method of diagnosing a case for discovering the nature of the ailment. Results of the diagnosis and treatment, if so pronounced as to become apparent, as where a leg or limb which has been broken is shorter than the other after diagnosis and treatment, may be testified to by anyone. James v. Grigsby (Kansas), 200 P. 267. And where, measured by the method shown by medical witnesses to be negligence and the evidence, a bad result is shown, it is the province of the jury to say whether the result was caused by the negligence."
The correct construction of the holding quoted, and others of similar import, is not that in every case the plaintiff's recovery is dependent upon the direct testimony or opinion of an expert witness that the examination of the patient was unskillful or the operation performed on his person negligent. The rule stated was intended to apply only in those cases where, on account of the involved character of the disease or the intricate nature of the processes necessarily employed in ascertaining its existence and progress, an expert witness cannot by his testimony bring within the comprehension of intelligent laymen the facts which must be known and understood in determining whether the diagnosis was prudently made. However, the decision of this case is not controlled by the holding in the Pilgrim case, supra, but by the rule stated in Caldwell v. Knight, 92 Ga. App. 747 ( 89 S.E.2d 900).
In respect to the first operation the petition does not assert that there was lack of skill or care on the defendant's part either in diagnosing the patient's malady as an aneurysm in his abdomen or in the determination of the operation to be performed in ascertaining the exact location and extent of the aneurysm. The charges or specifications of negligence in relation to that operation pertain exclusively to the manner in which it was executed. The specifications of negligence were as set forth above in the statement of facts.
If the plaintiff's proof was sufficient to present an issue of fact as to whether the defendant, while performing the first operation, was negligent in one of the particulars alleged in the petition and that the negligence caused the plastic tube to break off in the deceased's arteries, the grant of the nonsuit was error. This is true because there was competent evidence in the record authorizing the logical inference that all of the injuries for which recovery was sought flowed from and were proximately caused by the segment of the plastic tube or catheter being severed and set adrift in the patient's arteries. The second operation was admittedly necessitated by the breaking off of the catheter, its only purpose being to discover the location thereof and effect its removal from the patient's arterial system. That this operation was of a grave nature and itself constituted a serious physical injury to the patient is shown by the evidence.
There was also sufficient evidence in the record to authorize a finding that the broken segment of the catheter lodged at the bifurcation of the popliteal artery in the patient's right leg which is just back of the knee cap, occluded the flow of blood causing gangrene to set up in his foot, and thus proximately resulted in his right leg having to be amputated. Dr. Shea testified that the broken tube in the popliteal artery, in the presence of arteriosclerosis, could "well cause" obstruction of the blood flow to the points distal to the occlusion. There was evidence that arteriosclerosis in an advanced stage was present in the artery. The defendant in his version of the matter admitted that the broken piece of tube, plus blood clots present in the artery, could have caused the occlusion. He advanced the theory that blood clots alone could have had that effect, even in the absence of the catheter, and that the condition could have existed before it was present in the artery. However, there was no evidence of any complaint of pain or any discoloration in the foot before the catheter was severed in the artery. On the other hand, there was undisputed evidence that shortly thereafter, and on the same day, the patient experienced excruciating pain in the foot and that it turned a dark color due to the occlusion of the blood flow to that member. Mr. Phillips's condition in this respect deteriorated until the gangrene set up and the amputation of his leg was necessary.
The evidence adduced upon the trial showed that the defendant was called into consultation by the patient's physician; that it was determined that an aneurysm was present in the patient's arterial system, in his abdomen, and that an operation to definitely learn in just what arteries it existed was decided upon. The operation, according to the defendant's testimony, was a proceeding in which a 15-guage catheter was inserted in the patient's superficial femoral artery and from thence passed along proximally, that is, in the direction of the heart, to the bifurcation of the aorta in the abdomen. An opaque fluid was injected through the tube into the arteries. The size and shape of the arteries involved would be distinctly outlined so that accurate X-ray pictures could be taken and the exact location and extent of the aneurysm accurately ascertained.
The evidence did not support the allegation that the defendant failed to exercise care in examining or testing the plastic tube. His evidence affirmatively showed that he did properly test the tube. The fact that the tube broke off in the artery was not a circumstance indicating the contrary, because the doctor described a condition in the patient's arteries which might well have been expected to cut or break even a perfect tube of the type used.
There was evidence that before the defendant began the first operation he was aware that there existed in the patient's arteries arteriosclerosis; that this disease caused the interior walls of the arteries to harden and particles of the same to flake off; that these particles became what is known as calcium plaque, shell-shaped, hard and sharp, which would obstruct the passage of an object inserted in the arteries and were capable of cutting in two a plastic tube of the kind used. The defendant, with knowledge of these circumstances, inserted the tube in the patient's artery and undertook to pass it along the arteries toward the heart. When he met with resistance in this attempt he partly withdrew the tube or catheter and then pressed it against the obstruction in an attempt to force its passage. This process was repeated several times with the result that the catheter was broken off in the artery.
One of two conclusions is inescapable if the proof submitted by the plaintiff is true: first that, by the exercise of the forethought which is the chief ingredient of care, the defendant should have anticipated that the tube, when pressed against the obstruction that barred its passage with the force that was exerted, must be broken off; or secondly that, if the obstruction was what he might well expect it to be, calcium plaque, the tube would be severed and a part of it would be left in the artery.
Thus the complaint that the defendant was negligent in the manner in which he manipulated the plastic tube in the patient's arteries was supported by evidence and should have been submitted to the jury. At this point in our review of the case it is apparent that it was error to grant the nonsuit and that the case must be reversed.
We have not overlooked the fact that the doctor stated that he very gently pushed the tube against the obstruction. It must be observed that unless the doctor was exerting what he anticipated would be enough pressure to force the passage of the tube past the obstruction, there would have been no purpose in withdrawing and pressing the tube forward. In these circumstances, it was for the jury to decide whether, in the exercise of ordinary care, he should have anticipated that the tube might be broken or cut.
However, while not necessary for the purpose of deciding that question, since the case is to be tried again, and the question will then arise, it is expedient to pass upon whether the issue as to the alleged negligence of the defendant in performing the second operation was supported by sufficient competent proof to carry it to a jury.
This operation was described by the defendant in a statement made by him. The seriousness and complexity of its nature appeared from the defendant's testimony. The defendant gave evidence that the piece of plastic tube loose in the patient's arterial system could result in a variety of serious consequences, and that its presence there posed considerable danger; but that three months would probably elapse before the mischief could be done. Thus he made it clear that the removal of the tube was necessary, but that in his opinion there was no cause for haste in performing an operation for that purpose.
The evidence showed that the first operation was performed in the X-ray room; that immediately after discovering that he had broken the tube off in the patient's arteries the defendant sent the patient to the operating room and, without summoning another surgeon to assist him, began the second operation. Since the evidence elicited from the defendant indicated that the aneurysm was not so great that he did not have time in which to secure the services of another surgeon, together with the admission by him that he did not employ some method of determining what part of the patient's anatomy should be first explored in search of the piece of tube adrift in the patient's arteries, we think the issue as to whether ordinary care required him to call another surgeon into consultation was a question for the jury. The evidence presents an issue of fact as to this matter.
In our opinion the plaintiff proved her case substantially as laid in the petition, and the grant of the nonsuit was error. The issues presented by the specifications of negligence in reference to the defendant's failure to exhaust the means of diagnosis conveniently available to him, before beginning the exploratory examination, were supported by some evidence and should have been submitted to the jury. The evidence certainly furnished the jury a factual basis upon which they could have made an intelligent finding in reference to the matters involved. From the evidence adduced upon the trial, it could have been legitimately inferred that the means of diagnosis were, as alleged in the petition, presently available to the defendant; that he had sufficient time to employ their use; and that there was a strong probability they would have disclosed the lodgment of the catheter at the point where dissection of the leg after amputation disclosed its presence. Thus by the use of ordinary prudence the necessity of the second operation might have been obviated as well as the loss of the patient's leg.
Judgment reversed. Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.
Whether or not the doctor was negligent in this case is a medical question the answer to which must be established by medical testimony, of which there is none authorizing a finding that the doctor was negligent. In order to make out a case, the plaintiff had to prove that the doctor was negligent in taking the risk of leaving the tube in the artery, assuming that the doctor knew of the danger and possibility of the tube's being cut off and left in the artery and that it could not be later located and removed. What the doctor should or should not have done depended on the condition of the patient and the weighing of the results of not endeavoring to prepare for and make an X-ray and of the chances for successful treatment against making the effort to prepare for and make the X-ray and the chances for adverse results as were had in this case. The mere fact that the jury had evidence from which it could find that the leaving of the tube in the artery contributed to the condition which necessitated the amputation could not take the place of proof that the doctor was negligent in the procedure which he followed. The law in such cases is clearly stated in Pilgrim v. Landham, 63 Ga. App. 451 (4) ( 11 S.E.2d 420). In that case it was only held that the bad result could only be considered if the negligence was shown as measured by the method shown by medical witnesses to be negligence. The court stated: "The proper standard of measurement is to be established by testimony of physicians; for it is a medical question." See also, Howell v. Jackson, 65 Ga. App. 422, 423 ( 16 S.E.2d 45); and Mayo v. McClung, 83 Ga. App. 548 ( 64 S.E.2d 330).