Clemons v. Atlanta Neurological Institute, P.C.

• Decision Date: 28 June 1989
• Docket Number: No. A89A0534,A89A0534
• Citation: 192 Ga.App. 399,384 S.E.2d 881
• Parties: CLEMONS, et al. v. ATLANTA NEUROLOGICAL INSTITUTE, P.C.
• Court: Georgia Court of Appeals

Page 881

384 S.E.2d 881

192 Ga.App. 399

CLEMONS, et al. v. ATLANTA NEUROLOGICAL INSTITUTE, P.C.

No. A89A0534.

Court of Appeals of Georgia.

June 28, 1989.

Rehearing Denied July 20, 1989.

Certiorari Denied Sept. 7, 1989.

Simmons & Toliver, James C. Simmons, Jr., A. Leroy Toliver, Lynda G. Whitt, Atlanta, for appellants.

Downey, Cleveland & Parker, Lynn A. Downey, Russell B. Davis, Marietta, for appellee.

BEASLEY, Judge.

Mr. and Mrs. Clemons sued Atlanta Neurological Institute, P.C., alleging that Mr. Clemons sustained injuries due to the negligence of the doctor, its agent, in failing to protect Mr. Clemons from falling during a cervical myelogram. The Institute denied the material allegations, and the jury found in its favor. A motion for new trial was denied, and this appeal followed.

1. Plaintiffs contend the court erred in giving defendant's fourth request to charge.

(a) Appellee makes the threshold assertion that plaintiffs waived objection made during the charge conference by not excepting to the charge after the jury was instructed.

We are not fully persuaded that it was not waived. OCGA § 5-5-24(a); Sims v. Johnson, 185 Ga.App. 720, 721, 365 S.E.2d 532 (1988); Hurst v. J.P. Colley Contractors, 167 Ga.App. 56, 57(2), 306 S.E.2d 54 (1983).

Moreover, the nature of the objection raised here is not entirely the same as that made at the charge conference. "[T]he specific grounds for objection to a charge control the extent of the appellate review of the charge." Hurst, supra at 58, 306 S.E.2d 54. The complaint made here is that the charge allowed a lesser standard of care to be applied than the law requires, and that if abstractly correct, it was not adjusted to the evidence. The objection during the charge conference was only that it spoke of an unintended result and the myelogram did produce its intended result, that is, x-rays. This refers only to the latter ground; the former was not raised below.

Nevertheless, we will address the merits, because the trial court stated after the jury charge that he incorporated by reference the conference objections and rulings, and after recharge again took blanket note of the previous "exceptions." By its "incorporation" statement, made unsolicited at a time when an invitation to state exceptions should have been extended, the court implied that it assumed the parties would raise exceptions similar to the objections voiced during charge conference, and further that it rejected them. Thus the court created an awkward situation for which the party ought not be penalized by our refusal to address the substantive claim of error.

However, the procedure followed by the trial judge is not approved, because " '[o]ne purpose of [requiring a party to reassert his objections to a given charge] is to afford the trial judge an opportunity to correct any errors in his instructions without the necessity of an appeal.' Fleet Transport Co. v. Cooper, 126 Ga.App. 360, 361, 190 S.E.2d 629." Hurst, supra 167 Ga.App. at 58, 306 S.E.2d 54. Reflection after the charge is given allows reconsideration in a different context and also serves to articulate plainly the legal points and rulings which are later to be reviewed.

This case is distinguishable from Hurst in that there is a full record of the preinstruction charge conference and we are able to review plaintiffs' specific objection.

(b) The charge at issue is that "[a] doctor is not an insurer and an unintended result does not raise even an inference of negligence." The law does not require a retrial on account of this one sentence found in the instructions to the jury at the end of this six-day trial.

The doctor, defendant's agent, testified on cross-examination during plaintiffs' case-in-chief that Frank Clemons fainted and slumped to the floor during a myelogram procedure which the doctor was conducting. The table on which Clemons was lying with the 3 1/2-inch needle inserted in his back pointing towards his feet had been slowly tilted vertically to allow the dye to run down into the sac. This was done because the dye had not dispersed while the table was at a 45-degree angle for some minutes. The table had a 6"'-wide flat platform at the foot, and the patient, who was facing the table, was uncomfortable since he could not get his foot on the platform. The doctor permitted him to step back off the platform, as he indicated he wanted to do so, and lean against the table, remaining vertical. It is essential that he be comfortable during the procedure. It does not matter whether the patient stands on the platform or on the floor.

At least one technician was at his side, holding his arm. There may have been one on his other side, too. The doctor stepped back to look at the x-ray screen and was observing it when he heard a noise. He turned around and saw the patient slumped sideways, in the arms of one technician, who was then kneeling. Another technician was also kneeling over the patient, who had fainted after about two minutes of standing.

When he saw that the patient had fainted, the doctor was frightened because fainting is serious as it could indicate a heart attack or severe blood pressure. The doctor immediately pulled the needle out altogether and the three got the patient back lying flat on the table, where the doctor shook him and he regained consciousness after about four or five seconds. While the patient was standing and before he fainted, the doctor had twice asked him if he felt well, and the patient had both times said he did and nodded "yes." The doctor looked at him each time and observed that he looked perfectly alert and in good control of his faculties.

The doctor testified that he had done close to 3,000 myelograms and that of these, three patients had fainted, Mr. Clemons being the second.

In its charge to the jury, the court fully and clearly instructed the jury on the duty of a medical practitioner, the standard of care required, and how it was to be measured. It instructed them how to apply the standard and reach a verdict as to liability or the absence of the same. It instructed that the standard is presumed to have been met but is rebuttable. It instructed that a rebuttable presumption is "merely a circumstantial inference selected by the law as the most reasonable ... rational hypothesis...." It explained how presumptions are to be employed.

The allegedly offensive instruction is found in the above-described context, following the sentence first quoted:

"Ladies and gentlemen of the jury, I charge you that it is the general rule in this state that laymen, even jurors and courts, are not permitted to say what is proper medical and surgical treatment, for that is a medical question. A doctor is not an insurer and an unintended result does not raise even an inference of negligence."

This last sentence cannot be examined in isolation. "It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]" Williams v. State, 249 Ga. 822, 825(3), 295 S.E.2d 293 (1982). "It is well settled that the mere fact that the trial judge interjects into his charge some statement inapplicable to the issues of the case does not always require a reversal. Where such an instruction has been given, the reviewing court looks to the whole record to see if the complaining party in fact suffered prejudice. If so, a new trial will result; otherwise not." Bonita Theatre v. Bridges, 31 Ga.App. 798, 806, 122 S.E. 255 (1924), applied in Blount v. Moore, 159 Ga.App. 80, 82-83(1), 282 S.E.2d 720 (1981).

Even when due process in the trial of a criminal case is at stake, as perceived under the Federal Constitution, the challenger would have to show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) ¹; Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344, 354 (1985). Considering the charge as a whole, the issues, and the evidence, the recitation of the latter sentence is not reversible error even if error. OCGA § 9-11-61. As Justice Bleckley graphically expressed the realistic principle in Cherry v. Davis, 59 Ga. 454, 457 (1877) as related to the jury charge: "Wrong directions which do not put the traveler out of his way, furnish no reason for repeating the journey."

The issue as to liability was whether the doctor failed to exercise due care, skill, and diligence in conducting the procedure so that the patient's slump or collapse toward the floor, which resulted in partial dislodging of the needle and subsequent injury, was proximately caused thereby. From the evidence, it would be obvious to a rational jury that dislodging the needle was not intended; it would be obvious that the patient's fainting or his slumping was not intended; it would be obvious that the medical complications which followed were not intended.

The court merely told the jury that the injuries allegedly resulting from the manner in which the doctor managed the patient's body during the medical procedure could not in themselves raise an inference of negligence, i.e., that an inference of negligence on the part of the doctor cannot be drawn simply from the fact that injury occurred during a medical procedure of which the doctor had charge. It was not in issue whether the doctor intended or did not intend these consequences of his allowing the patient to stand, leaning against the table and unstrapped to it, so the use of the word "unintended" in context would reasonably mean nothing more than "unexpected" or "unanticipated."

Thus the contentious portion of the targeted sentence is inconsequential. The use of the adjective could not have misled a reasonable jury with respect to the standard of care required of physicians and in particular, this physician, which standard of care had...