Hayes v. Brown
| Decision Date | 04 September 1963 |
| Docket Number | No. 40069,No. 3,40069,3 |
| Citation | 133 S.E.2d 102,108 Ga.App. 360 |
| Parties | J. D. HAYES v. R. H. BROWN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) The degree of care and skill required by a practicing surgeon in the performance of his service is that degree which, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.
(b) The proper standard of measurement for a jury to apply to the acts of a doctor to determine whether he exercised a reasonable degree of care and skill must be established by testimony of physicians, for it is a medical question.
(c) The law recognizes that medicine is an inexact science at best and all a doctor may do is to assist nature in accordance with the present state of medical experience.
(d) The presumption is that the medical or surgical services were performed in an ordinarily skillful manner.
2. Testimony showing a mere difference in views between surgeons as to operating techniques, or as to medical judgment exercised, is insufficient to support an action for malpractice where it is shown that the procedure preferred by each, or the judgment exercised, is an acceptable and customary method of performing the surgery.
3. This court will not extend the application of the rule of evidence of res ipsa loquitur to a malpractice suit such as this.
The plaintiff, a 50-year-old insurance salesman, brought an action for personal injuries arising from the alleged negligence and malpractice of defendant, Dr. Robert H. Brown, a specialist and surgeon in the field of otolaryngology, involving diseases of the ear, nose and throat, who is associated with the Ponce de Leon Infirmary in Atlanta, Ga. After defendant answered, both plaintiff and defendant filed motions for summary judgment. The motions were heard together and were passed upon by the trial court, after consideration of the pleadings and the depositions of plaintiff and defendant on cross-examination and of plaintiff's medical witness, Dr. Charles H. Alper, an otolaryngologist from Chattanooga, Tenn., on direct and cross examination. After argument of counsel, the trial court entered judgment for defendant as a matter of law, overruling plaintiff's motion, and not passing on the issue of damages.
Plaintiff is suffering from otosclerosis in both ears, a disease causing progressive conductive deafness resulting from abnormal bone being laid down around the stapes, one of the three bones in the middle ear. At the time defendant first examined plaintiff, the over-all hearing loss was 88 per cent in his left ear and 56 per cent in his right ear. Defendant recommended and performed a stapes mobilization operation on plaintiff's right ear, under a local anesthetic, by which an incision is made in the external canal behind the ear drum to give access to the bones of the middle ear which, under a special microscope, are gently manipulated with delicate instruments until the bones again become mobile. When the defendant surgeon confirmed the diagnosis of otosclerosis but was unable to mobilize the bones, he closed the incision, packed the ear, and immediately informed the plaintiff that the operation to improve plaintiff's hearing had not been successful. Plaintiff told the defendant that he could not hear as well as before the operation, but at that time his right ear was packed and filled with blood. Three months later, after several audiograms, the defendant informed the plaintiff that no further surgery would benefit the right ear. It is undisputed that by that time, as compared with presurgical audiograms, plaintiff showed substantial conductive hearing loss and some additional nerve loss in the right ear.
Plaintiff alleged that the proximate cause of the increased deafness in his right ear was the negligence of the defendant physician in the following particulars (omitting repetition): (a) that defendant severed the auditory nerve (VIII) in plaintiff's right ear; (b) that defendant operated on the right ear rather than the left ear; (c) that defendant injured nerves controlling the mobility of plaintiff's tongue and his sense of taste on the rear of his tongue; and (d) that defendant did not use reasonable care and skill in performing the operation.
The defendant denies these allegations and contends that the deterioration in plaintiff's hearing in the right ear was caused by the progression of otosclerosis rather than any negligence in performing the operation.
On appeal plaintiff urges that the trial court erred in granting defendant's motion for summary judgment, in that either the pleadings and evidence or the doctrine of res ipsa loquitur raised material questions of fact which should go to a jury.
Grubbs & Prosser, Holcomb & McDuff, Marietta, for plaintiff in error.
Hansell, Post, Brandon & Dorsey, Hugh E. Wright, Atlanta, for defendant in error.
On review of a summary judgment the first essential question for determination by the appellate court is whether a genuine issue of material fact exists which should be decided by a jury. If no jury issue is found to exist, the next query is whether the moving party is entitled to judgment as a matter of law after each party had an opportunity to make out his case. Code Ann. § 110-1203. Holland v. Sanfax Corp., 106 Ga.App. 1, 4(1), 126 S.E.2d 442.
1. The basis for a malpractice action is provided in Code § 84-924 which provides: The degree of care and skill required is that which, under similar conditions and like surrounding circumstances is ordinarily employed by the profession generally. Akridge v. Noble, 114 Ga. 949, 958, 41 S.E. 78; Fincher v. Davis, 27 Ga.App. 494(5), 108 S.E. 905; Chapman v. Radcliffe, 44 Ga.App. 649, 162 S.E. 651. The court and jury must have a standard measure which they are to use in measuring the acts of a doctor to determine whether he exercised a reasonable degree of care and skill; they are not permitted to set up and use any arbitrary or artificial standard of measurement that the jury may wish to apply. The proper standard of measurement is to be established by testimony of physicians, for it is a medical question. 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.
A doctor is not an insurer and an unintended result does not raise even an inference of negligence. 'A physician can not always effect a cure.' Howell v. Jackson, 65 Ga.App. 422, 423, 16 S.E.2d 45, 46. The law recognizes that medicine is an inexact science at best and all a doctor may do is to assist nature in accordance with the present state of medical experience. 'The fact that treatment has resulted unfavorably does not raise even a presumption of want of proper care, skill, or diligence.' Branch v. Anderson, 47 Ga.App. 858, 860, 171 S.E. 771, 772; Wall v. Brim, 138 F.2d 478 (5th Cir.), applying Georgia law. It is also well established in this jurisdiction that 'the presumption is that the medical or surgical services were performed in an ordinarily skillful manner.' Shea v. Phillips, 213 Ga. 269(2), 98 S.E.2d 552.
2. After reviewing the evidence, we find that the only foundation for Hayes' first allegation that Dr. Brown cut the auditory nerve in his right ear is plaintiff's own unsupported supposition that he did not develop nerve deafness until after the operation. Plaintiff's own medical witness, Dr. Alper, flatly refutes this contention.
The medical evidence shows that Hayes' hearing problem was mixed, involving both air conduction and bone conduction or nerve deafness, in both ears prior to the operation, though to a different extent in each ear. The tests made under Dr. Brown's supervision indicated that the nerve or bone conduction loss in Hayes' right ear was the same before and soon after the operation on that ear, but he found that the air conduction loss had increased. The audiogram made by Dr. Brown some three months after the operation showed that the air conduction loss in plaintiff's right ear was 90 percent and the bone or nerve conduction...
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