Gilson v. Mitchell

• Decision Date: 27 February 1974
• Docket Number: Nos. 1,3,2,No. 48445,48445,s. 1
• Citation: 205 S.E.2d 421,131 Ga.App. 321
• Parties: Irving GILSON et al. v. W. E. MITCHELL, Sr., et al
• Court: Georgia Court of Appeals

Page 421

205 S.E.2d 421

131 Ga.App. 321

Irving GILSON et al. v. W. E. MITCHELL, Sr., et al.

No. 48445.

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

Feb. 27, 1974.

Rehearing Denied March 15, 1974.

Syllabus by the Court

If the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury other than a nuisance, and if a rational basis does not exist for an apportionment of the resulting damages among the various causes, then the actors are joint tortfeasors, jointly and severally liable for the full amount of plaintiff's damages, notwithstanding the absence of voluntary intentional concert of action among them. This common law rule is not intended to conflict with Code § 105-2011 allowing apportionment of damages in particular kinds of actions.

This is a medical malpractice suit here on appeal following a jury verdict for the defendants.

Ross & Finch, Claude R. Ross, Baxter H. Finch, A. Russell Blank, Atlanta, for appellants.

T. M. Smith, Jr., Hunter S. Allen, Jr., Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Atlanta, for appellees.

Beryl H. Weiner, Atlanta, amicus curiae.

HALL, Presiding Judge.

Plaintiffs below and appellants here are Mr. and Mrs. Irving Gilson; defendants-appellees are Dr. W. E. Mitchell, Sr., Dr. W. E. Mitchell, Jr., and Dr. Raul Soria. The suit grew out of the alleged negligence of the defendants in connection with the use of a central venous pressure catheter ('CVP Catheter') in Mr. Gilson's right external jugular vein throughout a period of several days of hospitalization during which time he underwent stomach surgery. Such a CVP Catheter is a flexible tube normally several inches long, designed to reach from the neck through a vein into the heart area, and the insertion of the one in question was done by Dr. Soria. The removal was accomplished by Dr. Mitchell, Jr., who found the catheter so short upon pulling it out of the vein that he, in conjunction with Dr. Mitchell, Sr., concluded that the missing length was adrift somewhere in Mr. Gilson's circulatory system where it could produce quick death. Mr. Gilson was inconclusively x-rayed to locate the missing part and then flown to Texas for treatment by a heart specialist whose tests were also inconclusive. Apparently, the fate of the missing length has never been medically determined.

Mr. Gilson's negligence suit against the three doctors sought recovery for his unnecessary subjection to mental distress and to surgical procedures, on the theory that the alleged missing length never existed but was in fact cut off by Dr. Soria prior to insertion. Mrs. Gilson's claim is for loss of consortium. The Gilsons alleged independent but concurring acts of negligence by the doctors, and sought a joint recovery against them. The rewritten and modified complaint advanced the claim that the doctors were joint tortfeasors and that their acts of negligence were as follows: Dr. Soria, without informing the Drs. Mitchell, and without telling plaintiffs of the experimental nature of his proceeding, inserted an abnormally short catheter and subsequently did not follow the patient's progress through removal of the catheter; the Drs. Mitchell, upon discovering the strangely short catheter, did not inquire of Dr. Soria the length he used but jumped to the conclusion that a piece was lost and immediately subjected the patient to expensive and painful procedures to 'locate' the missing part. Thus the various acts of the Drs. Mitchell and Dr. Soria together produced the single injury to plaintiff of needless subjection to medical procedures and mental distress.

At trial, the Gilsons' stance was predicated upon their theory that the doctors were joint tortfeasors; that since the Drs. Mitchell presented evidence the plaintiffs should have the last argument to the jury; and that a joint verdict against the defendants was authorized. The doctors argued successfully below that they were not joint tortfeasors because they were not alleged to have acted in concert. The trial judge agreed with the doctors and ruled that they were not joint tortfeasors but were merely defendants in two separate negligence actions-one against the Drs. Mitchell as medical partners and one against Dr. Soria-and therefore, since Dr. Soria presented no evidence (though the Drs. Mitchell did) Dr. Soria was given the final closing argument to the jury. The order of closing arguments was-the Drs. Mitchell; plaintiffs; Dr. Soria. Denial to plaintiffs-appellants of the right to give the final argument is enumerated as error. Also enumerated is the trial judge's instruction to the jury that should they find for plaintiffs, separate verdicts in individual amounts would be required against the two 'groups' of defendants. (There were four additional enumerations of which summary disposition is made below.)

The Gilsons were entitled to have the case tried to the jury on their theory of the doctors' liability unless as a matter of law such theory was inapplicable. Our decisive question at this point is whether as a matter of law acts such as those alleged in the complaint to have occurred would make of these doctors joint tortfeasors. We answer this question 'yes' and rule that appellants are entitled to the benefits of a trial conducted upon their joint tortfeasor theory. A critical part of this holding is that 'concert' of action is not required to be shown to constitute persons joint tortfeasors.

The Georgia cases concerning the definition of joint tortfeasors present some confusion in that certain decisions seem to require concert of action and others do not. It is our purpose here to outline the weight of authority in this state, and to eliminate certain prior inconsistent pronouncements of this court.

Let it be emphasized here that this discussion is concerned with the joint tortfeasor concept as a matter of substantive law and not merely as a procedural concept affected by recent joinder rules.

It has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff's damage. However, American law has expanded over the years from this beginning point, and presently textwriters and most Georgia cases are agreed that concert of action is not required-concurrent and independent wrongdoers are joint tortfeasors if their actions produce a single indivisible result and a rational apportionment of damages cannot be made. Examples of such an indivisible result could be death, a broken leg, any single wound, the total burning of a house, or sinking of a barge. Prosser, Torts § 52, p. 315 (4th Ed. 1971). 'Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it. Here again the typical case is that of two vehicles which collide and injure a third person. The duties which are owed to the plaintiff by the defendants are separate, and may not be identical in character or scope, but entire liability rests upon the obvious fact that each has contributed to the single result, and that no rational division can be made.' Id., p. 315.

'The correct procedure is to look first to the time of the commission of the acts. If there was concert of action, then there is no need to go further to establish entire liability. But if there was no concert, the next step should be to look to the combined effect of the several acts. If the acts result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts. However, if the combined result is a single and indivisible injury, the liability should be entire. Thus, the true distinction to be made is between injuries which are divisible and those which are indivisible.' Note, Joint Torts and Several Liability, 17 Tex.L.Rev. 399, 405 (1939). (Emphasis supplied) 'The conclusion to be drawn from this grouping of the cases would seem to be, that a tort is 'joint,' in the sense which the American courts have given to the word, when no logical basis can be found for apportionment of the damages between the defendants. The question is whether, upon the facts, it is possible to say that each defendant is responsible for a separate portion of the loss sustained. The distinction is one between injuries which are capable of being divided, and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury, and the tort is joint. If they shoot him independently, with separate guns, and he dies, the tort is still joint, for death cannot be apportioned. If they merely inflict separate wounds, and he survives, a basis for division exists, no matter how difficult the proof may be and the torts are several.' Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413, 442 (1937).

This test for determining joint tortfeasors, namely, whether the injury is divisible or indivisible, is that proposed in the Restatement Second of Torts which, summing up an entire chapter on 'Contributing Tortfeasors' in the prior Restatement, set forth this criterion: '(1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes.' Restatement, Second, Torts § 433A. Thus, those tortfeasors among whom damages cannot be apportioned under these rules are properly regarded as joint tortfeasors. This is a refinement of the first Restatement, which in § 879 entitled 'Concurring or Consecutive Independent Acts' stated: 'Except as stated in § 881, (concerning nuisances) each...