Hill v. Hospital Authority of Clarke County

• Decision Date: 09 January 1976
• Docket Number: No. 2,No. 51173,51173,2
• Citation: 137 Ga.App. 633,224 S.E.2d 739
• Parties: HILL, Linda S. by Guardian v. HOSPITAL AUTHORITY OF CLARKE COUNTY et al
• Court: Georgia Court of Appeals

Page 739

224 S.E.2d 739

137 Ga.App. 633

HILL, Linda S. by Guardian v. HOSPITAL AUTHORITY OF CLARKE COUNTY et al.

No. 51173.

Court of Appeals of Georgia, Division No. 2.

Jan. 9, 1976.

Rehearing Denied Feb. 17, 1976.

Levine, D'Alessio & Cohn, Sam F. Lowe, Jr., Atlanta, Gerard & Matthews, William T. Gerard, Athens, for appellant.

Erwin, Epting, Gibson & Chilivis, Gary B. Blasingame, Eugene A. Epting, Athens, for appellees.

CLARK, Judge.

This tort suit was filed in behalf of Linda S. Hill by her guardian ad litem against five defendants. They were the Hospital Authority of Clarke County, and four doctors, who are respectively an obstetrician, an internist, a surgeon and an anesthesiologist. The complaint alleged joint and concurring acts of negligence by the five defendants which resulted in the plaintiff sustaining brain damage causing her to be permanently incapacitated. After a trial over a period of six weeks and one day the jury returned a verdict for all defendants. A motion for a new trial and a motion to enter judgment for plaintiff notwithstanding the verdict on the issue of liability alone were denied. This appeal is from the denial of those motions.

The trial record and transcript totals 5,797 pages. Additionally, the exhibits include two technical books, one of 505 pages and the other of 155 pages. This represents the most voluminous file in the 70 years of the existence ¹ of our court.

Our opinion will provide a condensation of the facts followed by a division of the twenty-two enumerations of error into sections according to subject matter.

FACTS

The young woman plaintiff was 22 years old at the time of the unfortunate events which resulted in her being permanently paralyzed. Being pregnant she was under the care of a physician who was not available at the time she was referred to the defendant obstetrician. Observing the patient to have developed serious symptoms of toxemia of pregnancy the obstetrician admitted her to the Athens General Hospital. On February 8, 1968, defendant obstetrician surgically removed a healthy male child by caesarean section. During the next few days that plaintiff remained in the hospital she began to show signs of jaundice which rapidly worsened. The obstetrician called in a specialist in internal medicine. The internist's diagnosis was possible pulmonary emboli. He ordered her to be placed in the hospital's intensive care unit to enable careful monitoring of the patient's heart. Thereafter, defendant surgeon was consulted and he determined the problem was obstructive jaundice. This required an operation known as an exploratory laparotomy which was performed on the sixth day after the birth of the child. The anesthesiologist defendant performed his specialty and after surgery was completed accompanied the patient to the recovery room. There he connected her to a Bird respirator which he adjusted to automatic control. He then gave necessary instructions for the continued care.

A Licensed Practical Nurse (LPN) was in charge of the recovery room. She was an employee of the hospital and had been a regular recovery room employee for about 18 months with training in this type of work. Some time later, a surgical technician who was not qualified as either a Practical or Registered Nurse entered the recovery room. While the two women were engaged in conversation the LPN noticed that she did not hear the sound of the Bird respirator in operation. Thereupon she immediately administered heart massage. Other heroic efforts were made, including an emergency telephone call for a physician which was placed by the surgical technician. After an erroneous call to the emergency room the proper Code 99 was sounded for the recovery room. There is a dispute as to the time which ensued prior to the arrival of the house doctor who found that the two hospital employees had taken proper measures which he continued. The patient was revived but unfortunately had sustained permanent brain damage which left her in a vegetative state, her body alive but her brain gone.

I. JURY SELECTION

(1) 'A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury.' Melson v. Dickson, 63 Ga. 682, 686. Recognizing this maxim, the able advocates for both plaintiff and defendants conducted a complete and exhaustive voir dire of the individual jurors. Appellant's first five enumerations of error attack the trial court's rulings as to five specific veniremen.

(a) Prior to commencement of the voir dire examination inquiry was made by the court of the entire panel as to reasons for inability to serve in a lengthy trial. The court excused two jurors who did not have legal excuses which appellant contends was error. Appellees point out the list contained 108 names and only the first 56 were called before the desired number of 28 was selected and qualified. One of these jurors carried No. 65 and the other No. 97. Thus, the court's decision could not be considered harmful. Moreover, as was pointed out Grasham v. Southern Railway Company, 111 Ga.App. 158, 161, 141 S.E.2d 189, 191, 'A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury.'

(b) Two enumerations (3 and 5) contend the court erred in overruling plaintiff's motions seeking to disqualify two jurors whose families had been patients of the internist defendant. The answers of these two veniremen during the extensive voir dire of each demonstrated that this fact would not impede their ability to be impartial, to consider the issues based on the evidence and to make fair decisions. As such, they were qualified. See Williams v. State, 177 Ga. 391, 411, 170 S.E. 281 and citations thereon. The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. American Oil Co. v. Studstill, 132 Ga.App. 56, 207 S.E.2d 553. Moreover, one of these two jurors served only as an alternate and as such did not participate in the deliberations.

(c) The foregoing principles would apply also to the fourth enumerations which avers the court erred in sustaining the defendants' motion to disqualify a juror who expressed bias against the medical profession as a whole. The expressed views of this female juror showed she could not be impartial so the trial judge properly struck her name from the venire panel.

II. INSTRUCTIONS TO THE JURY

The prodigious industry and thorough preparation of counsel was shown in that plaintiff submitted more than 114 requests to charge and defendants tendered 27 suggested instructions. At the end of the sixth week of trial, court and counsel held a Saturday session for consideration and decision upon these requests. Assignments numbered 7 through 21 aver error either as to the instructions or as to the court's refusal to give plaintiff's requests in the language or substantial language submitted. Enumeration No. 16 has been withdrawn. We will deal with the others in numerical order.

(1) Enumeration No. 7 finds fault with the court's charge as to the effect of equally balanced evidence. This followed an instruction to the jury in the statutory language as to the burden of proof by a preponderance of the evidence. The instruction was correct. Boyd v. Boyd, 173 Ga. 139, 144(2), 159 S.E. 674, 677 held that 'In view of the instructions defining what is meant by preponderance of evidence, and laying down the method by which the jury should determine where the preponderance lies, we do not think that the charge here (as to treatment where the evidence on each side is equally balanced) . . . was error requiring a new trial.' See also Southern Railway Co. v. Smalley, 116 Ga.App. 356, 358(3), 157 S.E.2d 530 and Holland v. Tootle, 124 Ga.App. 186, 187(1), 182 S.E.2d 898.

(2) Enumeration No. 8 contends the court erred in instructing the jury on the subject of circumstantial evidence. We find no error as the court's language is in accord with Ga. Railway and Electric Co. v. Harris, 1 Ga.App. 714, 717, 57 S.E. 1076 and Baldwin v. Ga. Automatic Gas Co., 85 Ga.App. 767, 775, 70 S.E.2d 108.

(3) An interesting proposition is submitted in the ninth enumeration of error in that appellant's able advocate expressly stated to the court that 'I want to except to the law which has been honored for so many years, that is a presumption that doctors have performed their professional functions in accord with proper techniques. I do that for this reason, that it occurs to me that the theory that doctors or any other persons exercising scientific undertakings of one kind or another are judged by jurors who are ordinary lay people and not by jurors who are doctors and that this presumption has always been unnecessary and one that was never proper at all.' (T. 4002).

In our court appellant expressly requests that we overrule a series of cases beginning with Fincher v. Davis, 27 Ga.App. 494(2), 108 S.E. 905 and continuing through Anderson v. Crippen, 122 Ga.App. 27, 176 S.E.2d 196. These and other cases (the most recent being Kenney v. Piedmont Hospital, 136 Ga.App. 660, 222 S.E.2d 162) rule that there is a presumption that medical or surgical services were performed in an ordinarily skillful manner and the burden is on the plaintiff patient to show failure to exercise due care and skill.

While urging us to overrule these cases, counsel recognizes that the Supreme Court of Georgia in Shea v. Phillips, 213 Ga. 269, 271(2), 98 S.E.2d 552 stated 'In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and that the burden is on the one receiving the services to show a want of due care, skill and...