Dickerson v. Hulsey

• Decision Date: 19 February 1976
• Docket Number: Nos. 1,No. 51377,2,3,51377,s. 1
• Citation: 138 Ga.App. 108,225 S.E.2d 464
• Parties: Patricia D. DICKERSON v. W. G. HULSEY
• Court: Georgia Court of Appeals

Page 464

225 S.E.2d 464

138 Ga.App. 108

Patricia D. DICKERSON v. W. G. HULSEY.

No. 51377.

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

Feb. 19, 1976.

Rehearing Denied March 12, 1976.

Harmon & Wells, James H. Harmon, Carl A. Veline, Jr., Warner Robins, for appellant.

Jones, Cork, Miller & Benton, E. Bruce Benton, Macon, for appellee.

STOLZ, Judge.

The plaintiff's malpractice suit alleges that she was admitted to a hospital with an injury to the lumbosacral area; that her attending physician, defendant Dr. Hulsey, performed a Dilation and Curettage (D & C) operation on her pursuant to a special consent, which was void because it was signed by her while she was heavily sedated and not in complete control of her faculties; that, due to the negligence of the defendant in failing to exercise the reasonable degree of care and skill required by members of the medical profession in performing the operation, the defendant perforated the plaintiff's uterine (uterus?), necessitating subsequent corrective surgery by a Dr. Weems. The Complaint sought general and special damages.

The defendant filed an answer, alleging the plaintiff's consent to the operation and denying his negligence therein, and moved for summary judgment.

It appeared from the deposition of the plaintiff and Dr. Weems that the plaintiff had had at least two D & C operations that she could remember prior to the one performed by the defendant, one by Dr. Weems and another by a Dr. Manning. These were necessitated by abnormal uterine bleeding due to endometritis (an infection or inflammation of the uterus lining). The defendant deposed that, among other symptoms, the plaintiff was suffering from heavy, frequent bleeding when she consulted him; and that, in the course of the operation, the noticed a loss of tension on the curette (instrument used to scrape the inside lining of the uterus), removed it and immediately called in Dr. Weems for consultation. Dr. Weems deposed that he then performed a laparotomy (exploratory operation), revealing a perforation of the uterus, which was repaired by suturing; that the perforation stops bleeding when it is repaired; that the plaintiff's further incidents of abnormal bleeding after her discharge from the hospital would have been the result of a continuation of the endometritis and not the perforation; that the defendant exercised the degree of care and skill employed by the medical profession generally in his treatment of the patient and performance of the operation; and that it is not uncommon for the uterus to become perforated during a D & C, in even the best of skillful hands and techniques.

The plaintiff appeals from the grant of the defendant's motion for summary judgment. Held:

The defendant movant for summary judgment, by his own medical testimony and that of Dr. Weems, positively showed facts from which the only inference reasonably to be drawn supports the initial presumption that a proper degree of care and skill was used, thus meeting the requirement that on medical questions the proper standard of measurement must be established by the testimony of medical experts. The plaintiff having failed to support her contention of negligence with any evidence, opinion or otherwise, it was not error to grant the defendant's motion for summary judgment. See Anderson v. Crippen, 122 Ga.App. 27, 176 S.E.2d 196 and cits. Cf. Heath v. Steverson, 123 Ga.App. 740, 182 S.E.2d 323; McGlamry v. Smallwood, 124 Ga.App. 401, 184 S.E.2d 52; Rushing v. Ellis, 124 Ga.App. 621, 184 S.E.2d 667; Hogan v. Almand, 131 Ga.App. 225, 205 S.E.2d 440.

Judgment affirmed.

BELL, C.J., and CLARK and MARSHALL, JJ., concur.

DEEN, P.J., concurs specially.

EVANS and WEBB, JJ., dissent.

PANNELL, P.J., and QUILLIAN, J., concur in the result of the dissent.

DEEN, Presiding Judge (concurring specially).

We deal here with the question of the necessity for the plaintiff in a medical malpractice suit to come forward with expert medical evidence in opposition to the doctor's motion for summary judgment.

In a medical malpractice action, the presumption is that the medical or surgical services were performed in an ordinarily skillful manner, and the burden is on the one receiving the services to show a want of due care, skill and diligence. Georgia 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), 180 S.E. 905. 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. 'It is the general rule in this jurisdiction that laymen, even jurors and courts, are not permitted to say what is proper medical and surgical treatment; for that is a medical question. But where the result of medical treatment is so pronounced as to become apparent, as where a leg or limb which has been broken is shorter than the other after such treatment, or where a doctor undertakes to stitch a wound on his patient's cheek, and, by an awkward move, thrusts his needle into the patient's eye, this fact may be testified to by anyone competent to testify; and cases of such character are the only exception in this jurisdiction to the general rule requiring expert medical testimony to show negligence respecting a physician's or surgeon's service to his patient.' Shea v. Phillips, 213 Ga. 269, 271, 98 S.E.2d 552, 555. (Emphasis supplied.)

I am not prepared to say that the perforation of the uterine wall of a plaintiff with a history of endometritis (infection or inflammation of the uterus lining) and undergoing a D & C operation is a result 'so pronounced' as to demonstrate medical malpractice without expert medical evidence.

There being no inference of negligence from the result of the medical treatment undergone by the plaintiff and the defendant having offered evidence showing his actions were proper, it was not error to grant the defendant's motion for summary judgment. Anderson v. Crippen, 122 Ga.App. 27, 176 S.E.2d 196 and cits.

EVANS, Judge (dissenting).

Plaintiff sued defendant (a physician) for negligence in his professional conduct and in the performance of a serious operation upon her. The lower court sustained defendant's motion for summary judgment, and a majority of this court affirms. I respectfully dissent.

1. First, let it be remembered that plaintiff alleged in her complaint what the physician did, punctured her uterus and perforated her womb (T. 3)And if her complaint is true there can be no question as to defendant physician's being negligent. She did not even know the operation was to be performed, but first learned of it afterwards, upon regaining consciousness, and sufficient use of her senses to make inquiry of the physician as to what he had done to her.

2. Plaintiff had no duty whatever of introducing any evidence to sustain the allegations of her complaint as against a motion for summary judgment until defendant first introduced evidence sufficient to 'pierce the pleadings.' This the defendant failed to do. He introduced his own testimony and that of a fellow physician, but the opinion evidence of these two experts can never 'pierce the pleadings'-and can never be sufficient evidence upon which to base a summary judgment. General Motors Corporation v. Wilson, 120 Ga.App. 156, 157, 169 S.E.2d 749; Ginn v. Morgan, 225 Ga. 192(1, 3), 167 S.E.2d 393; Harrison v. Tuggle, 225 Ga. 211(2), 167 S.E.2d 395.

3. This court has held many, many times that a jury and other fact-finding bodies are not bound by opinion evidence; that they may believe it or not; give credence to it or not; they may treat it as they will, and they may completely disregard such opinion evidence without rhyme or reason. Liberty Mutual Ins. Co. v. Williams, 44 Ga.App. 452(1), 161 S.E....