Fox v. Cohen, 62787

• Decision Date: 02 November 1981
• Docket Number: No. 62787,62787
• Citation: 287 S.E.2d 272,160 Ga.App. 270
• Parties: FOX v. COHEN et al.
• Court: Georgia Court of Appeals

Page 272

287 S.E.2d 272

160 Ga.App. 270

FOX v. COHEN et al.

No. 62787.

Court of Appeals of Georgia.

Nov. 2, 1981.

Ronald C. Harrison, Roswell, for appellant.

George W. Hart, Rush S. Smith, Jr., James S. Owens, Jr., Atlanta, for appellees.

DEEN, Presiding Judge.

Patricia Fox as next friend to her daughter, Chandra, brought an action against Dr. Cohen and Northside Hospital to recover damages for burns received by her daughter during surgery. The evidence shows that Chandra was admitted to the hospital by Dr. Cohen and that he performed a tonsillectomy and and adenoidectomy upon her. Following the surgery, it was noted by the recovery room nurse that the child had two burns on the midportion of her back on either side of her spinal column which were approximately 1 cm. each in size. Patricia Fox appeals from an order granting summary judgment in favor of Dr. Cohen.

1. The issue of informed consent was not before the trial court as an allegation in the pleadings and was not raised by the doctor. Even if it were raised, it could be considered to be abandoned in the court below. During the hearing on the motion, plaintiff's counsel cited Mull v. Emory University, 114 Ga.App. 63, 150 S.E.2d 276 (1966) for the proposition that consent to treatment or diagnostic tests without disclosure of the hazard or danger involved is not valid consent and that the parents in this case were not informed that the child might be burned. The court asked: "Is that what your lawsuit is about?" Counsel replied: "No sir, its not. Specifically what our lawsuit is about ..." and then proceeded to argue the doctrine of res ipsa loquitur. Even if this issue had not been abandoned, the issue of informed consent is controlled by Code Ann. § 88-2906 which creates a presumption of valid consent when such consent is in writing. While the attending physician is required to inform his patient of the general terms of treatment, this duty does not require a disclosure of the risks of treatment. Kenney v. Piedmont Hospital, 136 Ga.App. 660, 667, 222 S.E.2d 162 (1975).

2. Appellant's contention that the doctrine of res ipsa loquitur applies in this case is without merit. The undisputed testimony of Dr. Cohen shows that the burns received by Chandra were a rare but not unheard of complication of electrosurgery. His testimony further showed that the burns were related to the operation as they were not present on her body before surgery and were located at the site where two disc-shaped electrocardiogram electrodes were placed at the direction and under the control of the attending anesthesiologist and that Dr. Cohen in no way participated in supervising the anesthesiologist or in connecting the electrodes to the patient. The Bovie electrosurgical unit used by Dr. Cohen is used by a surgeon to coagulate bleeding at the surgical site. It is operated by pressing a foot pedal and an electrical current passes from the pencil end which is held by the doctor to the tissue. A large conductive pad is placed on the patient (in this case, the patient's thigh) which is then connected to the cauterization unit and operates as a return electrode and is the means by which the current introduced at the site of the surgery is returned to the machine. This machine was in no way connected to the electrocardiogram machine and was plugged into a separate electrical outlet. Dr. Cohen testified that he had performed three similar operations prior to Chandra's using the...