Akridge v. Noble

• Decision Date: 12 March 1902
• Citation: 114 Ga. 949,41 S.E. 78
• Parties: AKRIDGE v. NOBLE.
• Court: Georgia Supreme Court

41 S.E. 78

114 Ga. 949

AKRIDGE

v.NOBLE.

Supreme Court of Georgia.

March 12, 1902.

malpractice—evidence—instructions.

1. In the trial of an action brought against a surgeon for malpractice, in which it was claimed that a sponge or pad which had been placed in the body of the plaintiff for the purpose of absorbing blood and pus while an operation was being performed had been carelessly left in the body after the wound had been closed, from which injury resulted, it was not error for the court to charge the jury that, if they believed the pad or sponge had been in fact left in the body, they should then determine whether it was so left by reason of the failure of the defendant to exercise due care and skill, and that he owed the plaintiff a duty to exercise reasonable care and skill in performing the operation; including in that expression not only the opening of the body and the removal of the affected parts, but also the use and handling of the sponges or pads.

2. It is not erroneous for the judge, in the trial of a civil case, to call the attention of the jury to the fact that they have taken an oath to try the case according to the evidence and the law as given them in charge by the court, and that they cannot set up any ideas of their own in reference to the law of the case in opposition to what is contained in the charge of the court. There is nothing in such a charge calculated to embarrass a couscientious juror in the discharge of his duty.

3. The evidence authorized the verdict. The charges complained of were not erroneous. The requests to charge, so far as legal and pertinent, were covered by the general charge, which fully and fairly submitted all of the issues to the jury; and the court did not err in refusing to grant a new trial.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Pearl Akridge against G. H. Noble. Judgment for defendant, and plaintiff brings error. Affirmed.

The plaintiff was a charity patient, on whom an operation was performed at the Grady Hospital, —a hospital conducted by the city of Atlanta. The city controlled the place, furnished all the preparations, room, operating nurse, etc. Dr. Noble simply went in and performed operations there free of charge. The plaintiff alleged that an operation had been performed without the exercise of due care and skill, resulting in injury to her, and sued both Dr. Noble and the city. Later she dismissed the case as to the city, and proceeded against Dr. Noble alone.

Ordinarily "a person professing to practice surgery or the administering of medicine for a compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill will be a tort for which a recovery may be had." Civ. Code, § 3831. This is the measure prescribed in this state, where a surgeon performs operations for pay. Certainly it cannot be more stringent where he goes to a charity hospital, and operates without charge. But inasmuch as human life may be at stake, I am of the opinion that, whether he charges or not, he himself is bound to have and ex ercise a reasonable degree of care and skill. Where he undertakes to operate for pay, it would doubtless be incumbent on him to provide suitable instruments, assistants, help (whether called "nurse" or not), and generally to exercise reasonable skill and care in the whole matter. How far he would be responsible for negligence of an assistant furnished by him, need not be decided now. Clearly he would not be responsible for any negligence of assistants in which he took no part, or for accessories, etc., where neither assistants nor accessories were furnished by him, but by a free hospital, and where this was known to the patient. In such a case he would be responsible for any failure to exercise a reasonable degree of care and skill himself. Movant's counsel, in this motion for new trial, seem to think that the charge placed upon them the burden of showing a failure to exercise reasonable care, and also a failure to exercise reasonable skill. But the charge will show that this is a mistake. On the contrary, the burden was placed on the surgeon to exercise a reasonable degree of both care and skill, not on plaintiff to show a failure in both respects.

Further, in the course of the trial, plaintiff's counsel produced as authority, and read from, Thomas, Neg. p. 1107. On that page will be found the following:

"Degree of Skill and Care Required. In the absence of a special contract otherwise providing, a physician and surgeon, whether acting gratuitously or otherwise [post, p. 1109], is required to possess and use reasonable care and skill; and the same is measured by the degree of skill possessed, and skill and care exercised, by the average of his profession in the locality of his residence, regard being had to the advanced state of the profession at the time [pages 1108-1114]. It has been held that it is a material issue, whether a surgeon is skillful in his profession, as well as whether he applied skill in the particular case. Carpenter v. Blake, 50 N. Y. 696; Id., 60 Barb. 488 [page 1108]; Mayo v. Wright, 63 Mich. 32, 29 N. W. 832 [page 1113]. But mere possession of skill is not sufficient, unless due care be taken to exercise it in the case in hand. [Pages 1111, 1112.]

"Skill—How Tested. The skillfulness of a physician should be tested by the recognized rules and doctrines of his own, and not those of other schools. [Post, pages 1114, 1115.] It has been held, however, that clairvoyant physicians are adjudged by the skill required of a physician of good standing in the community. [Page 1115.] Where a physician departs from the settled course of practice, it may be a question for a jury whether this would not constitute negligence. [Pages 1108, 1111, 1113, 1114.]"

Movant's counsel now seek to draw some sort of distinction between the operation by the surgeon, and his handling of the sponges or cloths placed inside the patient's bodywhile the actual cutting proceeds, to catch the flow of blood or pus. They claim that the handling of these sponges or gause strips was no part of the operation at all, that the rule of care and skill required of the surgeon in operating had no application to the case, and that the charge was error. Frankly, I fail to perceive the force of this point Dr. Noble undertook to do something as a surgeon. The doing of that something involved the putting of pads or sponges inside the body of the patient, as well as the actual cutting open and sewing up. After the cutting and cleansing was over, and the time to close the wound had arrived, the sponges were to be removed. If he did not undertake to find and remove them as a surgeon, in what capacity was he acting? Reasonable or ordinary care is not an absolute term, and has no arbitrary meaning. If the care and skill required of him in doing this thing was not measured by the reasonable care and skill of a surgeon, what was the measure of it? Was it that of an upholsterer stuffing or removing the stuffing of furniture? Or that of a railroad employe operating a train? Or that of a master toward his servant? Or what was it? It may seem at first blush, as perhaps it has impressed counsel, that if the surgeon put the sponges inside of a patient's body, care would require him to take them all out. But when we remember that abdominal surgery, as now practiced, is largely a matter of a few years' growth; that until quite a recent period it was considered that an incision or wound which penetrated the abdominal cavity was certainly fatal, and that now such operations are very frequently performed; that the surgeon must make a small incision, not over a few inches in length; must insert and properly place a number of small sponges or gauze pads (sometimes as many as a dozen, as the evidence discloses); must partly by sight and partly by feeling, reach the seat of the trouble and cut away the necessary parts; must tie up the loose ends, remove the sponges, and close and sew up the opening, arranging for proper drainage; and all this with the utmost promptness, for sometimes a slight delay may mean death, —circumstances and surroundings must be considered in measuring duty. Some of the witnesses in this case testified that, with the surgeon's mind and attention riveted on the delicate and dangerous work before him, it was very difficult if not impossible, to keep in his memory the exact number and placing of these sponges; that he must needs rely somewhat for the count upon another; that he exercised such care and skill as he could in finding and removing the sponges, and then had the operating nurse to aid him by keeping count of them; and one or more said that, if the surgeon should stop at the critical moment to count sponges before closing the wound, the patient might die. This system may be imperfect What system is not? But certain ly it would never do to turn juries loose to fix some arbitrary standard—each jury for itself—of how abdominal surgery ought to be performed, regardless of how the surgeons themselves had found it safest and best to do, nor (which would amount to the same thing) to say whether a method of performing an operation, even if universally adopted by the most skillful surgeons, seems reasonable to the jurors' minds or not This is especially true where the practice of surgery is permitted only by those who have studied the recognized methods, and have had certain training, and have been found to be sufficiently proficient and have been licensed. If the practice of surgery were thrown open to everybody to act on his general judgment, without skill or training, perhaps the rule might be different The average juror might, in such a supposed state of affairs (if it can be supposed), be able to judge of the mode of performing operations as well as the practitioner, of whom no training, skill, or knowledge was required. If all...