Hughes v. Weaver, (No. (9170.)
| Decision Date | 10 April 1929 |
| Docket Number | (No. (9170.) |
| Citation | 148 S.E. 12,39 Ga.App. 597 |
| Parties | HUGHES et al. v. WEAVER. |
| Court | Georgia Court of Appeals |
(Syllabus by Editorial Staff.)
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Error from City Court of Atlanta; Hugh M. Dorsey, Judge.
Action by Mrs. Fred Weaver against N. A. Hughes and another. Judgment for plaintiff, defendants' motion for new trial was overruled, and defendants bring error. Affirmed.
Norman I. Miller, of Atlanta, for plaintiffs in error.
O. C. Hancock and Thos. G. Lewis, both of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
This was a suit for damages against two physicians on account of alleged malpractice, the petition charging that the defendants operated upon the plaintiff for hemorrhoids, and negligently, carelessly, and unnecessarily cut the sphincter ani muscle, which left the plaintiff unable to control her bowels. She seeks to recover for the alleged permanent injury and for pain and suffering. It is alleged that in the cutting and severing of the muscle the defendants "did not exercise that degree of care and skill that surgeons engaged in the same general line of service would have used in performing the same or similar operations, " and that the severing of the muscle was totally unnecessary in performing an operation of that kind. The defendants filed separate general and special demurrers; the general demurrers were overruled, and the petition was amended to meet certain of the grounds of special demurrer, the other grounds being overruled, or the allegations demurred to stricken. The trial resulted in a verdict for the plaintiff for $10,-000, and the defendants except to the overruling of their motion for new trial, and assign error upon exceptions pendente lite taken to the rulings on the demurrers. Held:
1. Civil Code 1910, § 4427. "This standard, when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally." McLendon v. Daniel, 37 Ga. App. 524, 528, 141 S. E. 77, 79; Fincher v. Davis, 27 Ga. App. 494 (5), 108 S. E. 905. Accordingly, the petition in the instant case, which alleged that the defendant physicians and surgeons had negligently, while operating on the plaintiff for hemorrhoids, cut and severed the sphincter ani muscle, and that it was wholly unnecessary to do so in the performance of the operation, set forth a cause of action. Nor did the allegation to the effect.that the defendants in so doing failed to exercise that degree of care and skill which surgeons engaged in the same general line of service would have used amount to a mere conclusion, in view of the allegation that it was wholly unnecessary to cut the muscle in order to perform the operation.
2. The testimony of the plaintiff's husband, who was present at the operation, to the effect that he could not tell whether the defendant who actually performed the operation used a certain described instrument inside the rectum or whether he pulled the parts out, was not erroneously admitted, since it was a part of the testimony of the witness in describing the acts and doings of the defendants at the time of the operation, and the witness swore that he was present, and that the defendant used a described instrument, and with it "cut out" certain particles from the plaintiff's person.
(a) The testimony of plaintiff's husband, to the effect that after the treatmentby defendant "she grew worse, " was not a mere conclusion, in view of the testimony of the witness describing the plaintiff's condition and symptoms.
3. The testimony of the plaintiff as to her condition after the operation and treatment by the defendants was properly admitted in evidence, and was not objectionable on the ground that the condition testified about existed after other physicians had treated her.
[7, 8] 4. The testimony of practicing physicians who treated the plaintiff after the alleged operation, and their opinions as to her condition and the cause of the condition in which the plaintiff was found, was properly admitted, in view of the testimony of each of such physicians as to his training and experience. This is true even though they did not qualify as specialists in surgery. The weight to be given their testimony was for the jury. Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749 (10), 759, 65 S. E. 844.
5. The testimony of the plaintiff, concerning efforts she had made to locate the trained nurses who had attended her after the treatment and operations by the defendants, could not have been harmful to the defendants, since no presumption prejudicial to the plaintiff arose by reason of her failure to produce such witnesses. Bank of Emanuel v. Smith, 32 Ga. App. 606 (2), 124 S. E. 114.
6. In view of the uncontradicted testimony that one of the defendant physicians had...
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