Fincher v. Davis

• Decision Date: 24 October 1921
• Docket Number: 12108.
• Citation: 108 S.E. 905,27 Ga.App. 494
• Parties: FINCHER v. DAVIS.
• Court: Georgia Court of Appeals

108 S.E. 905

27 Ga.App. 494

FINCHER v. DAVIS.

No. 12108.

Court of Appeals of Georgia, Second Division

October 24, 1921

Syllabus by the Court.

"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." Civil Code 1910, § 4427. "The exercise of this degree of care and skill is the measure of professional duty in all cases; and whether this degree of care and skill has been exercised in a given case is a question of fact for the jury." Edwards v Roberts, 12 Ga.App. 140, 76 S.E. 1054. In determining such an issue, "the jury may consider all" the attendant facts and circumstances "which may throw light on the ultimate question." Pace v. Cochran, 144 Ga. 261, 265, 86 S.E. 934, 936.

In an action by a physician and surgeon to recover the value of professional services rendered, the burden is on him to prove that he is a physician, that he was employed as such, that he rendered the services alleged, and to show the value of such services as represented by the ordinary and reasonable price for services of that nature. 30 Cyc. 1601; 9 Enc. of Evidence, 828, 829. In such an action (as well as in a suit brought by a patient for malpractice) the presumption is that the surgical or medical services were performed in an ordinarily skillful manner, and the burden is on the person 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; 30 Cyc. 1602; 21 R.C.L. 406; 9 Enc. of Evidence, 834. The court did not err in so charging.

Where a physician or surgeon renders necessary professional services for a wife, with her consent, the husband is primarily liable therefor, even in the absence of any express consent on his own part. Civil Code 1910, §§ 2296, 2297; Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga.App. 371, 372(4), 71 S.E. 691. The charge of the court, that if the operation was performed "wholly without any authority from this defendant, then the plaintiff would not be entitled to recover a fee for such operation," was more favorable to the defendant than the rule required.

The private physician and surgeon of the wife, who was familiar with the case and all the attendant facts and circumstances and who witnessed the operation, was asked and answered the following question: "Q. Was this operation done in a skillful manner? A. Yes, sir." The question and answer were objected to upon the ground that they trenched upon the province of the jury in seeking and eliciting a conclusion upon the main issue in the case. Held, the opinion of an expert on any question relating to his profession, trade, or business is always admissible, when given in response to a hypothetical question based upon the testimony of witnesses other than himself, or where, as here, the expert has himself observed the facts, and gives his opinion based upon his own observation. Civil Code (1910), §§ 5876, 5874; Yates v. State, 127 Ga. 813(4), 817, 56 S.E. 1017; Taylor v. State, 135 Ga. 622(6), 70 S.E. 237; Crankshaw v. Schweizer Mfg. Co., 1 Ga.App. 363, 58 S.E. 222.

The court charged the jury: "In considering whether the plaintiff in his diagnosis, care, and treatment of defendant's wife exercised ordinary care and skill, the jury may not set up a standard of their own, but must be guided in that regard solely by the testimony of physicians and if...