Howell v. Jackson

• Decision Date: 03 July 1941
• Docket Number: 28816.
• Citation: 16 S.E.2d 45,65 Ga.App. 422
• Parties: HOWELL et al. v. JACKSON.
• Court: Georgia Court of Appeals

16 S.E.2d 45

65 Ga.App. 422

HOWELL et al. v. JACKSON.

No. 28816.

Court of Appeals of Georgia, Division No. 1.

July 3, 1941

Rehearing Denied July 23, 1941.

Syllabus by the Court.

Bryan Middlebrooks & Carter and Yantis C. Mitchell, all of Atlanta, for plaintiffs in error.

Dorsey Stubbs & Dorsey, of Atlanta, for defendant in error.

MacINTYRE Judge.

Janet Lee Jackson, age five, by Mrs. E. T. Jackson, her mother as next friend, brought this action against Dr. J. L. Howell and Dr. J. T. Hutchins, for personal injury alleged to have been caused by the negligent and incorrect setting of plaintiff's arm, leaving the arm weak, disfigured, at an awkward angle, and subjecting her to intense pain and suffering. As a result of the improper setting, the plaintiff, realizing the condition of the arm and probable permanent disfigurement and loss of use thereof, through other physicians attempted to have the defects and disfigurements corrected by resetting and an operation necessitating the plaintiff to be put under a general anesthetic on four separate occassions after the arm had been originally set. The jury returned a verdict in favor of the plaintiff and the defendants excepted to the overruling of their motion for new trial.

1. Dr. T. M. McIntosh, now deceased, of Thomasville, Georgia, whose medical education had been obtained in part at the University of Heidelberg in Germany, then one of the greatest institutions of its kind in the world, and who became one of the most celebrated general practitioners as well as surgeons in southwest Georgia, once made a statement in the presence of the writer which has ever lingered with him. He said: "We doctors can not raise the dead. All we can do is to assist nature in her effort to heal the ailment." A physician can not always effect a cure. He is "only required to possess and exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing, and to use ordinary, and reasonable care and diligence, and his best judgment, in the application of his skill to the case." Lake v. Baccus, 59 Ga.App. 656, 657, 2 S.E.2d 121, 122. Jurors and courts do not know and are not permitted arbitrarily to say what are the proper methods of treating an ailment. This is a medical question. Hence, the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. "The court and the jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill. They were not permitted to set up and use any arbitrary or artificial standard of measurement that a jury may wish to apply." Pilgrim v. Landham, 63 Ga.App. 451(4), 11 S.E.2d 420, 423. If a doctor or physician possesses the qualifications above stated, and uses ordinary and reasonable care and diligence and his best judgment in the application of his skill to the case, he is not liable because his efforts to assist nature in effecting a cure did not bring about the desired result. "A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had." Code, §

84-924.

Taking the evidence in its most favorable light to upholding the verdict in favor of the plaintiff, the jury were authorized to find that Janet Lee Jackson had her arm broken and was taken by her mother to Dr. Howell's office in the Medical Arts Building in Atlanta, Georgia. While waiting for Dr. Howell to come a nurse took an X-ray of the arm, which was of course before the arm was set. Dr. Howell took the girl and her mother to the Lakewood clinic from the Medical Arts Building, and there Dr. Howell gave the anesthetic and Dr. Hutchins, his partner, set the arm. Three weeks after the setting of the arm Mrs. Jackson complained to Dr. Howell about the look of the arm, but no X-rays were taken then, but at the end of five weeks after the setting of the arm, she demanded an X-ray picture of it and Dr. Howell took her back to the Lakewood clinic and made the X-ray. There were only two X-rays taken by the defendants, according to the testimony of the child's mother, one just before the setting, the other five weeks thereafter. The child's arm was broken in or near the elbow, and with reference thereto Dr. M. T. Myers, an expert witness for the plaintiff,...