Hogan v. Almand, 48960

• Citation: 131 Ga.App. 225,205 S.E.2d 440
• Decision Date: 01 February 1974
• Docket Number: No. 2,No. 48960,48960,2
• Parties: Iris J. HOGAN v. Joseph M. ALMAND, Jr., et al
• Court: United States Court of Appeals (Georgia)

Page 440

205 S.E.2d 440

131 Ga.App. 225

Iris J. HOGAN v. Joseph M. ALMAND, Jr., et al.

No. 48960.

Court of Appeals of Georgia, Division No. 2.

Feb. 1, 1974.

Rehearing Denied March 11, 1974.

Syllabus by the Court the defendant was negligent in improperly

Where in a malpractice case the ultimate the defendant was negligent in improperly diagnosing and treating the patient, depends entirely on medical opinion testimony, the grant of summary judgment to such defendant is error.

The plaintiff Mrs. Hogan sued her physician Dr. Major, the City-County Hospital of LaGrange, Ga., the pediatrician who was called into the case, the defendant-appellee Dr. Almand, and Children's Clinic for malpractice, the result of which she alleges caused the death of an infant born to her the previous day. The motions of Dr. Almand and Children's Clinic for summary judgment were granted and the appeal is from this ruling. The plaintiff relies primarily on the affidavit of the physician who examined hospital records and microscopic tissue slides following autopsy; since its statements primarily summarize the plaintiff's case we quote from it the following: 'Based upon examination of these clinical records, and of the autopsy slides, in my professional opinion, my findings are as follows:

'1. Mrs. Hogan was admitted to the hospital with abnormally heavy vaginal bleeding, increased uterine tonus and a fetal heart rate of 106 per minute. A tentative diagnosis of partial placental separation was made. This diagnosis recognizes the existence of a life-threatening condition for the unborn child. In usual and ordinary medical care, such a diagnosis necessitates measures to deliver the infant as soon as reasonably possible. In Mrs. Hogan's case, the physician returned to his home and she received no further care from her physician throughout the right.

'2. During the course of the night she was repeatedly observed to be crying, in pain, and uncontrollable by the single attending nurse in the hospital. She was examined by that nurse and evidence of labor was not recognized.

'3. Nevertheless, at 6:30 a.m. this unattended woman in her first pregnancy had a precipitous unsterile, uncontrolled, spontaneous delivery of a live born baby which weighed 7 lbs. 5 ozs. Delivery occurred approximately 7 hours after admission. Neither physician nor nurse was in attendance.

'4. The diagnosis of partial placenta separation was confirmed by examination of the placenta, and a laceration of the mother which occurred during delivery was repaired by her physician.

'5. In spite of the fact that the diagnosis of placenta separation had been made, no consultation with another physician was obtained, no technique to accomplish early delivery such as caesarean section was considered and her physician went home.

'6. Since the child was delivered unattended and in conditions which were not sterile, it is not possible to say whether he became bacterially contaminated at the time of delivery.

'7. Within 4 or 5 hours the child had severe respiratory distress and thick bloody mucous was sucked from his lungs. The pediatrician was called to see the child; a diagnosis of hyaline membrane disease was made and therapy appropriate for that diagnosis was instituted.

'8. A diagnosis of pneumonia was not considered in spite of the fact that the child was delivered in a contaminated atmosphere and a therapy to cover the possibilities of infection was not instituted in spite of the fact that (a) acute bacterial infection is a common cause of respiratory distress in newborns, and (b) hyaline membrane is believed to be a disease of premature babies and this child was believed to be fully mature.

'9. The child died at approximately 29 hours of age.

'10. An autopsy was performed in which the major diagnosis was massive atelectasis (collapse) of the lungs due to hyaline membrane disease.

'11. My examination of the microscopic slides shows that the diagnosis of hyaline membrane disease is not warranted by the microscopic findings and that in fact the presence of large numbers of acute inflammatory cells throughout the single section of lung available establishes the more reasonable cause of death as acute bacterial pneumonia (infection).

'In my professional opinion, this child's death was due to acute bacterial infection which occurred at or near time of birth. This unsterile, uncontrolled, unattended delivery could have been avoided by caesarean section and caesarean section was warranted by the physical findings and the diagnosis made by her own physician at or near the time of admission to the hospital. In my opinion the initial evaluation of patient in labor was correct, the medical care during labor was inadequate, the medical care at the time of delivery was inadequate, the diagnosis of the newborn's respiratory distress was inaccurate and the autopsy diagnosis was inaccurate.'

Additionally it appears from the record that Dr. Almand saw...