Anderson v. Crippen, 45027

• Decision Date: 20 May 1970
• Docket Number: No. 45027,Nos. 1,2,3,45027,s. 1
• Citation: 176 S.E.2d 196,122 Ga.App. 27
• Parties: Henry ANDERSON v. Donald A. CRIPPEN
• Court: Georgia Court of Appeals

Page 196

176 S.E.2d 196

122 Ga.App. 27

Henry ANDERSON v. Donald A. CRIPPEN.

No. 45027.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 20, 1970.

Rehearing Denied June 15, 1970.

Syllabus by the Court

Where on motion for summary judgment in a malpractice action the plaintiff showed that recovery from a wrist fracture had been unsatisfactory and alleged that this was due to faulty placing of the pin in a metal plate attached to the bone but failed to support this contention with any evidence, opinion or otherwise, but the defendant testified positively to the procedures used and the only possible inference from the testimony as a whole was that proper surgical procedures had been used, it was not error to grant the defendant's motion for summary judgment.

The plaintiff's malpractice suit alleges that he suffered a radial fracture of the right wrist and went to the defendant physician for treatment; that the defendant first attempted a closed reduction (setting the bones without operation and applying a plaster cast); that the bone failed to knit and he then performed open reduction by surgery, affixing a metal plate with four screws to the bone to hold it in place; that one of the screws was located so near the fractured portion of the radius that it eroded and allowed movement within the replaced cast; that as a result the bone failed to heal properly and that he now suffers loss of use of his hand. The defendant moved for summary judgment, and offered as evidence his deposition taken on cross examination, which showed that he first attempted manual reduction as the usual and more conservative treatment but that due to the position of the break it was difficult to obtain union by this method and x-rays showed that the bones were not knitting; that he then, after exhibiting the x-rays to and conferring with an orthopedic specialist, placed the plaintiff in surgery and attached a three inch metal plate by four screws to the bone above and below the fracture site and replaced the cast; that he continued periodic x-rays; that the plaintiff was sixty-two years old and had had a former break in the right wrist some years before which had healed improperly and resulted in some bone deformity and this added to the problem; that the bone ends still did not knit although, as shown by x-rays, the position was proper, and that some bone erosion developed as a result of which the bony socket around one of the screws became loose so that it became necessary to reoperate; that he so advised the plaintiff but the plaintiff refused to return for further treatment. The defendant explained the difficulty in reply to a question by saying that 'if you had a screw that was worn out or not secure through to the carpus, there would be a weakening of the plate and the plate would work loose, but the fact is that there was no healing of the bone all during this time, there was nonunion; whenever you have a nonunion it has got to be removed and something else done because it comes to the point when that bone is not going to heal any more and that plate is not going to do any good, and as a matter of fact it will at this stage keep the bones apart.' Asked why the bones did not heal he replied that he did not know, that some medical reasons for nonhealing are poor circulation, infection, simple failure of the bone ends to unite, etc.; that the bone ends did not unite but developed some discoloration; that the older the person is the more likelihood there is of nonunion, and that, the closed reduction and plate methods having both failed he advised the partient that he should have further surgery and a bone graft, at which time the wrist which was deformed from the old break could also be straightened and that he advised this after further consultation with a specialist but the plaintiff failed to return. It appeared from the plaintiff's deposition that he had consulted another physician but had had no further treatment, and he offered no medical evidence. The trial court granted the defendant's motion for summary judgment and plaintiff appeals.

Thomas M. Strickland, Royston, for appellant.

McClure, Ramsay & Struble, Robert B. Struble, Toccoa, for appellee.

DEEN, Judge.

The general rule is that since the jury is not bound by opinion testimony, this type of evidence may never serve as the basis for the grant of a summary judgment whether contradicted or not. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 373; Harrison v. Ruggle, 225 Ga. 211, 167 S.E.2d 395. It is here contended that all malpractice actions fall within this category. In Truluck v. Funderburk, 119 Ga.App. 734, 168 S.E.2d 637 the court questioned Jackson v. Tucker, 118 Ga.App. 693, 165 S.E.2d 466 where the grant of summary judgment to a defendant physician had been affirmed, and reversed the grant in the case under consideration because 'the opinion testimony in the case sub judice would not be sufficient to authorize the granting of the defendant's motion for summary judgment.' This was followed in Williams v. Melton, 120 Ga.App. 466, 171 S.E.2d 318 in a malpractice action involving a question of improper diagnosis, failure to follow conservative treatment, and failure to advise the patient of the risks involved in surgery. These cases illustrate situations where a jury would ultimately have to make a choice of inference as to negligence or non-negligence based on medical opinion evidence as to what procedures would constitute the exercise of reasonable care and skill in diagnosis and treatment, and thus would necessarily be dependent on the opinions of doctors as to what was proper, and this regardless of the fact that we have many times said that the ultimate fact of diligence or negligence is for the jury and may not be the subject of direct testimony.

The present case raises the question of whether every malpractice action ultimately depends on jury inferences from opinions, so that it may be said that under no circumstances can summary judgment be granted a defendant physician becasue whether or not he was negligent in diagnosis or treatment depends on the opinions of other doctors, and the defendant cannot show that it would be impossible for the plaintiff at the trial to produce an expert witness in whose opinion the defendant was at fault. We do not apprehend this to be the law. Expert medical testimony may or may not be opinion testimony, and where a difference of opinion is shown the matter is of course for the jury. But no case has gone so far as to say that the defendant has the burden of showing that no contrary opinion may exist. On the contrary, in a malpractice trial the plaintiff must come forward with some evidence from which negligence may be inferred or he fails to make a prima facie case. Shea v. Phillips, 213 Ga. 269(3), 98 S.E.2d 552. Mere failure to effect a cure is not of itself any evidence of negligence. Specht v. Gaines, 65 Ga.App. 782, 16 S.E.2d 507. 'In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill, and diligence. Ga. Northern Ry. Co. v. Ingram, 114 Ga. 639, 640, 40 S.E. 708; Akridge v. Noble, 114 Ga. 949, 958, 41 S.E. 78; Fincher v. Davis, 27 Ga.App. 494(2), 108 S.E. 905; 21 R.C.L. 406; Taylor, Med.Jur. 356. And in such a case the proof ordinarily required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses. Pilgrim v. Landham, 63 Ga.App. 451(4), 11 S.E.2d 420; Howell v. Jackson, 65 Ga.App. 422, 16 S.E.2d 45; 70 C.J.S. Physicians and Surgeons § 62, 1006-1008; 41 Am.Jur. 238, § 128.' Shea v. Phillips, supra, at page 271, 98 S.E.2d at page 554. 'Where the movant in summary judgment shows facts from which the only inference reasonably to be drawn supports the initial presumption that a proper degree of care and skill was used, or as in this particular case, that no negligence on the part of the physician was the cause of the failure of the fractured bone ends to knit together, and where the defendant testified positively that he had X-rayed the break and that the bone erosion around the screw was not caused by faulty location of the screw, as contended by the plaintiff, the requirement that on medical questions the proper standard of measurement must be established by the testimony of medical experts (Murphy v. Little, 112 Ga.App. 517, 519, 145 S.E.2d 760) has been met, and the plaintiff must of necessity offer some evidence, opinion or otherwise, or suffer judgment against him. It is true that the distinction between fact and opinion is a relative one. As stated in McCormick on Evidence, § 11, p. 22: 'By the middle of the 1800's the disparagement of 'mere opinion' in the sense of a notion or conjecture not rooted in observation had emerged into a much more questionable canon of exclusion. This is the doctrine that witnesses generally give the 'facts' and not their 'inferences, conclusions, or opinions'. This classic formula, based as it is on the assumption that 'fact' and 'opinion' stand in contrast and hence are readily distinguishable, has proven the clumsiest of all the tools furnished the judge for regulating the examination of witnesses. It is clumsy because its basic assumption is an illusion.' In the testimony of medical experts it is easy to identify certain types of opinion evidence, usually couched in the form of answers to hypothetical questions. But other testimony, such as a description of procedures in general use under a given set of circumstances, while it is expert testimony because in a field as to which the layman has no special knowledge, is still primarily a question of fact rather than opinion, and from this sort of testimony the jury must draw its own inference as to whether the defendant used that degree of care...