Hawkins v. Greenberg
| Decision Date | 30 June 1981 |
| Docket Number | No. 61252,61252 |
| Citation | 283 S.E.2d 301,159 Ga.App. 302 |
| Parties | HAWKINS et al. v. GREENBERG. |
| Court | Georgia Court of Appeals |
Henry Angel, Michael K. Jablonski, Atlanta, for appellant.
Robert G. Tanner, Atlanta, for appellee.
Mrs. Hawkins and her husband sued Dr. Greenberg for medical malpractice in negligently prescribing medication for her containing sulfa when he knew at the time she was allergic to sulfa drugs and which caused her to suffer anaphylactic shock, schizophrenia and other severe and debilitating reactions from which she has never completely recovered. Mr. and Mrs. Hawkins sought damages in the amount of $10,000.00 as reasonable compensation for past, present and future injuries, damages and expenses and loss of Mrs. Hawkins' services to Mr. Hawkins. Prior to trial the manufacturer of the drug and the pharmacy which supplied it to Mrs. Hawkins were removed as codefendants on motion for summary judgment. Hawkins v. Richardson-Merrell, 147 Ga.App. 481, 249 S.E.2d 286 (1978). At trial the testimony of seven doctors who had treated Mrs. Hawkins both before and after her allergic reaction, including the defendant, was presented by the plaintiffs. Expert testimony of a doctor from California as to the proper standard of care exercised by the medical profession generally, and his opinion as to the standard of care exercised by Dr. Greenberg in the instant case also was presented. The jury found for the defendant and this appeal is from the judgment on that verdict.
1. Since Dr. Greenberg testified under cross examination that he knew the drug he prescribed contained sulfa, that it should not be given to one allergic to sulfa drugs, that he did not tell Mrs. Hawkins it contained sulfa nor ask her if she was allergic to any drugs, and that because there was further uncontroverted evidence that this drug was the cause of Mrs. Hawkins' anaphylactic shock and ensuing medical and mental problems, appellants contend that they were entitled to the grant of their motion for directed verdict or for judgment notwithstanding the verdict.
The only major conflict in the evidence presented here is the exact time at which Mrs. Hawkins became aware that she was allergic to sulfa drugs. Mrs. Hawkins had been treated by Dr. Ernest W. Abernathy, a general practitioner, since 1970. In 1972 Dr. Abernathy referred Mrs. Hawkins to Dr. Alexis Davison, an internist specializing in allergies, for her particular allergic problems. When asked routinely by Dr. Davison if she had any known drug allergy problems, Mrs. Hawkins "responded at that time that she had a reaction after taking sulfa preparation by mouth in 1972." After testing Mrs. Hawkins and discovering that she was allergic to a large number of substances, Dr. Davison put her on a regimen of certain dietary restrictions and a series of desensitization injections which were administered once or twice weekly in Dr. Abernathy's office for convenience. Dr. Greenberg was Mrs. Hawkins' gynecologist and saw her for regular checkups once or twice a year from 1969 to 1974. During this same period she was also treated by Dr. Thomas W. Busey, a urologist, for bladder infection. The medical records of all the doctors except defendant Greenberg contain notations prior to 1974 that Mrs. Hawkins had a known allergy to sulfa drugs, and these doctors testified that they would never prescribe any sulfa drug for her. Defendant Greenberg's records had only one reference to Mrs. Hawkins' allergies, dated November 8, 1973, in which it was stated that she had "no drug allergies." However, Mrs. Hawkins testified that after she suffered an allergic reaction to sulfa drugs in October of 1972, she so informed Dr. Greenberg.
The evidence is undisputed that on September 9, 1974, Mrs. Hawkins went to Dr. Greenberg for a routine gynecological checkup, at which time Dr. Greenberg gave her a prescription for AVC vaginal suppositories, a medication containing sulfa. Dr. Greenberg did not ask Mrs. Hawkins if she was allergic to sulfa drugs although he knew the product contained sulfa. Mrs. Hawkins had the prescription filled on September 15. Neither the label nor the packaging of the medication revealed that it contained sulfa, nor was this fact communicated to Mrs. Hawkins by the pharmacist. That evening at bedtime Mrs. Hawkins inserted one of the suppositories and slept through the night. The next morning when she awoke she felt "weak and jittery," but went to Dr. Abernathy's office as scheduled for her regular desensitization injection. At about 2:30 that afternoon she felt weaker and noticed red splotches on her legs. When her husband came home from work about an hour later and could care for their baby, she drove to Dr. Abernathy's office where she suffered an acute anaphylactic allergic reaction resulting in total loss of blood pressure, epileptic-type seizures and laryngospasms with a heart rate of 140 beats per minute. Dr. Abernathy administered emergency care. Mrs. Hawkins was hospitalized for a prolonged period during and subsequent to which she was treated by two other medical specialists for physical complications and by a psychiatrist who diagnosed her mental condition as "acute schizophrenic episode and psychosis with drug intoxication" caused by her allergy to sulfa drugs. Mrs. Hawkins is still unable to work at her profession of cosmetology and has suffered possible permanent injury to the central nervous system of her brain from the total loss of blood pressure. Although Mrs. Hawkins was taking other prescription medication at the time of the allergic reaction, the medical witnesses were unanimous in the opinion that the anaphylactic shock episode could only have been triggered by the AVC suppositories containing sulfa.
Dr. Abernathy and Dr. Ellenhorn (a California physician who has frequently been an expert witness in medical malpractice suits) both testified that the degree of reasonable care exercised by the medical profession generally is to ask a patient at the time of prescribing a drug if they are allergic to any drugs. As stated by Dr. Ellenhorn:
Dr. Abernathy testified that he "always ask[s] with each prescription on each visit no matter how many times they have been in" if his patients have any allergies to any drugs, and that he always makes a note of it in the patient's medical records so that he would not overlook this information and prescribe such a product. When asked how it was determined whether a person had an allergy to a drug, Dr. Davison (the allergy specialist) replied that it could only be learned in retrospect: "You need to ask someone have they ever had any type reaction to a drug ... in general, and to any specific drugs, if you want to know; we really cannot predict who is going to have an allergic reaction to a drug."
Kenney v. Piedmont Hospital, 136 Ga.App. 660, 664, 222 S.E.2d 162 (1975). Slack v. Moorhead, 152 Ga.App. 68, 71-72, 262 S.E.2d 186 (1979).
The plaintiffs here offered the opinions of seven independent medical experts while the defendant presented no explanation of his conduct nor medical evidence to rebut the standard of care generally exercised by the medical profession as established by the uncontradicted testimony of the plaintiffs' experts. We perceive this to be a case in which the plaintiffs' experts have "demonstrate[d] to the jury a deviation from the recognized and accepted standard of medical care prevalent in the general professional community for treating a patient with the signs and symptoms exhibited by the plaintiff" so as to rebut the presumption that the defendant's medical services were performed with the requisite degree of skill or care. Smith v. Luckett, 155 Ga.App. 640, 641, 271 S.E.2d 891 (1980). This court's ruling in Slack v. Moorhead, supra, that a directed verdict is authorized in a medical malpractice action "if it was demanded either from proof or lack of proof on the controlling issue" makes no distinction in application between plaintiffs and defendants (although the defendant prevailed in that case). However, in light of ...
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