Blount v. Moore

• Decision Date: 26 June 1981
• Docket Number: No. 61368,61368
• Citation: 282 S.E.2d 720,159 Ga.App. 80
• Parties: BLOUNT v. MOORE.
• Court: Georgia Court of Appeals

Page 720

282 S.E.2d 720

159 Ga.App. 80

BLOUNT v. MOORE.

No. 61368.

Court of Appeals of Georgia.

June 26, 1981.

Edward J. Walsh, Larry S. McReynolds, Gail M. Payton, Atlanta, for appellant.

Michael T. Bennett, Sidney F. Wheeler, Barry S. Mittenthal, Atlanta, for appellee.

Don C. Keenan, Atlanta, Chairman, GTLA, amicus curiae Committee, Ed G. Barham, Valdosta, member, GTLA, amicus curiae committee.

CARLEY, Judge.

Appellant, plaintiff below, brought suit against appellee-physician for the allegedly negligent performance of a surgical operation which resulted in appellant's blindness. A verdict for appellee was returned by the jury and judgment was entered thereon. Appellant appeals.

1. Several of appellant's enumerations of error are premised upon the giving of the following jury charge which was requested by appellee: "[T]he law recognizes that medicine is an inexact science at best and that all a doctor may do is assist nature in accordance with the present state of medical experience." Appellant urges that this charge is an incorrect proposition of law, that it is argumentative and that it is inappropriate and misleading. The crux of the assertion of error in the charge is that its language tends to weaken or liberalize the application of the standard of professional care required of physicians.

The exact language of the contested charge appears in Hayes v. Brown, 108 Ga.App. 360, 133 S.E.2d 102 (1963). Resolution of the issues presented in the instant appeal mandate that we examine that language in the entirety of the context in which it appears, Division 1 of Hayes. Therefore, that division of Hayes is set out below:

"The basis for a malpractice action is provided in Code § 84-924 which provides: 'A person professing to practice surgery or the administering of medicine for 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 shall be a tort for which a recovery may be had.' The degree of care and skill required is that which, under similar conditions and like surrounding circumstances is ordinarily employed by the profession generally. [Cits.] The court and jury must have a standard measure which they are to use in measuring the acts of a doctor to determine whether he exercised a reasonable degree of care and skill; they are not permitted to set up and use any arbitrary or artificial standard of measurement that the jury may wish to apply. The proper standard of measurement is to be established by testimony of physicians, for it is a medical question. [Cits.]

"A doctor is not an insurer and an unintended result does not raise even an inference of negligence. 'A physician can not always effect a cure.' [Cit.] The law recognizes that medicine is an inexact science at best and all a doctor may do is to assist nature in accordance with the present state of medical experience. 'The fact that treatment has resulted unfavorably does not raise even a presumption of want of proper care, skill, or diligence.' [Cits.] It is also well established in this jurisdiction that 'the presumption is that the medical or surgical services were performed in an ordinarily skillful manner.' [Cit.]" (Emphasis supplied.) Hayes v. Brown, 108 Ga.App. 360, 363(1), 133 S.E.2d 102, supra.

It is noted that the first paragraph of Division 1 of Hayes, quoted above, sets the standard by which the acts and actions of a doctor must be measured in a medical negligence case: the degree of care and skill as established by medical testimony which, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally. The second paragraph, however, does not concern the standard by which a jury must review particular acts, actions or conduct of a doctor charged with medical negligence but, rather, deals with the law's acknowledgment that if the physician has otherwise met the standard set forth, the fact that his compliance with that standard did not achieve a satisfactory result cannot be the basis for imputation of negligence liability. In other words, the second paragraph of Division 1 of Hayes establishes that the result of a medical treatment is not a consideration in the determination of whether it was performed negligently. Thus, from an academic and analytical viewpoint, the language of the charge under scrutiny in the instant case was properly positioned within the text of the Hayes opinion. In that context--result--the language is a correct statement of the law for, abstractly, it is a gratuitous preface to the rule that no inference of malpractice may be drawn from unfavorable treatment. In this regard, it is noted that the charge in the instant case was given immediately before an instruction that an unfavorable result does not raise a presumption of lack of care, skill and diligence. However, even conceding that in the context of Hayes the language employed reflects a mere elaboration on the well established principle of law that a doctor is judged by conduct and not result, that fact alone does not render it appropriate as a jury instruction on that principle. "[L]anguage which would be proper in a headnote or in the opinion by a reviewing court may be improper when embodied in a charge to a jury, and the fact that the excerpt was taken verbatim from a decision of this court did not make the giving of it proper." Bonita Theatre v. Bridges, 31 Ga.App. 798, 805-806, 122 S.E. 255 (1924).

This court in the second sentence of the second paragraph of the Hayes decision was merely undertaking to make clear the legal principle upon which is founded the rule of law that malpractice may not be inferred from an unfavorable result--medicine is an inexact science at best. In this regard, it is appropriate to an appellate decision reviewing the evidence in a malpractice case but could not possibly enlighten a jury of fact finders on the objective standard of care required of a physician. Indeed, the sentence, if charged as written as was done in the instant case, is susceptible of being understood as imposing a lesser standard on physicians than the required degree of skill. However, the intent of the second paragraph of Hayes is not to imply a lesser standard of care for physicians than is established in the first paragraph--which is that a doctor must exercise that degree of care and skill ordinarily employed by the profession generally while assisting nature in accordance with the present state of medical experience. We believe that an instruction on the principle that a physician is judged by conduct and not by result should be more objectively phrased than that given in the instant case. Absent a qualification as to the necessity that a doctor exercise the care and skill ordinarily employed by the profession generally, we are therefore compelled to conclude that the verbatim language of the second sentence of the second paragraph of Division 1 of Hayes is not adaptable as a jury instruction and should not be included in a charge in a malpractice case because it is argumentative, inappropriate and misleading. The charge in the instant case was, therefore, erroneously given.

However, a review of the entire charge demonstrates that the jury was carefully and repeatedly otherwise informed of the correct standard which they were to apply in determining whether appellee was negligent. For this reason, and this reason alone, the error was harmless. See Bonita Theatre v. Bridges, 31 Ga.App. 798, 806, 122 S.E. 255, supra.

2. During the course of the trial a C-arm fluoroscope machine, the same machine used during appellant's operation, was demonstrated before the jury. This demonstration was conducted by fluoroscoping a bare skull. Because a bare skull was used instead of the skull of a living person, appellant contends that the demonstration was dissimilar to the actual circumstances of her operation. Appellant made other objections based upon appellee's failure to show that the operating condition and repair and maintenance of the machine was the same at the time of the demonstration as during appellant's operation. We find no error for any reason urged on appeal. The same machine was used and substantially the same conditions existed at the demonstration as at the operation except for the use of a bare skull. In matters concerning demonstrations such as this the trial court has broad discretion and it was not abused in the instant case. Atlanta & W. P. R. Co. v. Hudson, 2 Ga.App. 352, 58 S.E. 500 (1907); Watson v. Elberton-Elbert County Hosp. Auth., 125 Ga.App. 112, 186 S.E.2d 459 (1971).

3. Use by the trial court of the term "guilty" in referring to appellee's alleged culpability for malpractice did not constitute reversible error. While it is clearly the better practice not to make use of the word in the context of a civil action, "guilty" is not necessarily restricted to criminal culpability. See Black's Law Dictionary (4th Ed.) p. 836. We cannot say, therefore, that use of the term was so confusing or misleading as to constitute error.

4. Appellant contends that it was error to grant appellee partial summary judgment as to that count of her complaint which alleged appellee's failure to disclose the risks and dangers involved in undergoing surgery.

"The legislature has defined the physician's duty of disclosure to his patient; the physician must inform the patient of the general terms of treatment in order to effect a valid consent. [See Code Ann. § 88-2906] In that we have decided that this duty does not include a disclosure of 'risks of treatment,' appellant cannot sustain an action alleging that defendant breached his duty in failing to warn of the risks of treatment or that her consent was thereby rendered invalid." Young v. Yarn, 136 Ga.App. 737(1), 222 S.E.2d 113 (1975). Therefore, under Young, appellant's contention that appellee would be liable if he negligently breached...