Hyles v. Cockrill, 66299

CourtUnited States Court of Appeals (Georgia)
Citation169 Ga.App. 132,312 S.E.2d 124
Decision Date13 October 1983
Docket NumberNo. 66299,66299

L.B. Kent, Columbus, for appellant.

Samuel E. Kelly, Jr., Columbus, J. Ronald Mullins, Jr., Augusta, for appellee.

CARLEY, Judge.

The facts relevant to this medical malpractice case are as follows: Mrs. Martin was admitted to the hospital for an illness unrelated to the instant controversy. A routine chest x-ray of Mrs. Martin revealed an enlargement of a mediastinal node in the region of the azygos vein. The mass was approximately three and one-half centimeters in diameter. The radiologist recommended that Mrs. Martin "have tomograms as well as supine and upright chest films to see if there was a change in the characteristics of this lesion on x-ray." The fact that changes in the characteristics of the mass occurred during this procedure confirmed the radiologist's initial diagnosis that the mass was a nonvascular, soft tissue mass. He then recommended that a mediastinoscopy be performed for the purpose of viewing the obstruction.

The mediastinoscopy was performed on Mrs. Martin by Dr. Love on April 4, 1977. Dr. Love, who testified at trial concerning the procedure, stated that after passing the mediastinoscope through an incision at the base of Mrs. Martin's neck, he located the trachea and followed it down by viewing through the scope. Two small nodes were located and removed for diagnosis of possible malignancy. Dr. Love then located a third node which he decided should also be removed. At this point, the suspected mass shown on the tomogram had not yet been located. After the third node was removed, bleeding occurred. The bleeding would not clot, and it was necessary for Dr. Love to perform surgery through Mrs. Martin's chest to stop the bleeding. After the chest was opened, it was determined that the source of bleeding was a tear at the junction of the azygos vein and the vena cava. The tear was sutured and the bleeding was stopped.

On April 12, 1977, eight days after undergoing the mediastinoscopy procedure, Mrs. Martin suffered respiratory and cardiac arrest. Subsequently, Mrs. Martin demonstrated symptoms of brain damage.

Lucille Martin, by next friend, instituted the instant medical malpractice case against Dr. Love, who is now deceased and whose executor is the appellee here. A jury trial resulted in a verdict in favor of appellee. A timely notice of appeal from the judgment was filed. Mrs. Martin died subsequent to the filing of her notice of appeal, and Mark Hyles, her duly appointed and qualified administrator, has been substituted as the appellant in the instant case.

1. The first enumeration asserts that the trial court erred in excluding certain testimony by appellant's expert witness on direct examination. The testimony objected to, which concerned the witness' opinion that Mrs. Martin suffered from cerebral anoxia, was excluded on the ground that a proper foundation had not been laid. "It is a sound rule that a judgment will not be reversed on an exception (and, a fortiori, in the absence of an exception) to the refusal of the trial court to allow a competent witness to testify, where the record does not show what testimony the witness was expected to give. [Cits.]" McLendon Elec. Co. v. McDonough Constr. Co., 145 Ga.App. 137, 142(3), 243 S.E.2d 537 (1978), reversed on other grounds, 242 Ga. 510, 250 S.E.2d 424 (1978). Accordingly, since appellant failed to state what testimony the witness was expected to give, the issue was not properly preserved for appellate consideration. Page v. Brown, 192 Ga. 398, 401(6), 15 S.E.2d 506 (1941); Anderson v. Jarriel, 224 Ga. 495, 496(3), 162 S.E.2d 322 (1968); Cambron v. Canal Ins. Co., 246 Ga. 147, 152(10), 269 S.E.2d 426 (1980).

2. During the trial, Dr. Galloway testified by way of deposition as an expert witness for appellee. Appellant contends that during cross-examination of this witness, the trial court erred in sustaining appellee's objection to the following question: "And being a conscientious surgeon you feel that recognized standard medical and surgical care would require you to inform a patient about the possible complications before you do it so that they may have a chance to make a choice whether they want to undergo the procedure?"

It is clear that this question was an attempt to put before the jury the issue of the "informed consent doctrine." The informed consent doctrine is, however, not a viable principle of law in this state. Kenney v. Piedmont Hosp., 136 Ga.App. 660, 222 S.E.2d 162 (1975); OCGA § 31-9-6 (Code Ann. § 88-2906). "While the attending physician is required to inform his patient of the general terms of treatment, this duty does not require a disclosure of the risks of treatment. [Cit.]" Fox v. Cohen, 160 Ga.App. 270(1), 287 S.E.2d 272 (1981); Young v. Yarn, 136 Ga.App. 737(1), 222 S.E.2d 113 (1975). Accordingly, the trial court did not err in excluding testimony by appellant's expert witness concerning his adherence to a practice of informed consent. See generally Simpson v. Dickson, 167 Ga.App. 344, 306 S.E.2d 404 (1983).

3. Dr. Anylyn, a California surgeon, testified at trial by way of deposition as an expert witness for appellant. Appellant asserts that the following testimony elicited from Dr. Anylyn on cross-examination was erroneously allowed into evidence: Question: "Medicine is not such a perfect science that doctors are willing to guarantee their judgments on the success of their best efforts for a patient as a general rule? Answer: Yeah, correct." Appellant objected on the ground that the question was misleading.

Georgia courts have repeatedly held that "[t]he 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.' [Cits.]" Hayes v. Brown, 108 Ga.App. 360(1), 133 S.E.2d 102 (1963). While it would not be appropriate to charge the jury in the language used in the challenged question, (see Blount v. Moore, 159 Ga.App. 80(1), 282 S.E.2d 720 (1981)), we find no error in permitting testimony in that regard.

4. Appellant next asserts that the trial court erred in striking the following testimony of appellant's expert, Dr. Anylyn: "Question: Do you have any criticism of the factual finding by the radiologist on the report that you have read? Answer: Yes, I find that it is not complete enough. Question: Will you tell me precisely the facts that support your conclusion to that effect? Answer: I will have to bring in the opinion of our radiologist. Question: Then your answer is based, in part, upon that of the radiologist here at this hospital? Answer: That's correct." The trial court excluded the above quoted testimony on the ground that the expert's expressed opinion was impermissibly based, in part, on the opinion of another.

The law in Georgia is that "[a]n expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions." Walker v. Fields, 28 Ga. 237(2) (1859). "A witness' opinion must be his own and he cannot act as a mere conduit for the opinions of others. [Cit.]" Stephen Brown Radiology Assoc. v. Gowers, 157 Ga.App. 770, 780(5), 278 S.E.2d 653 (1981). In the instant case, it is clear that the expert witness was basing his opinion, at least in part, on the opinion of a radiologist in California, and not upon facts as given to him by that radiologist. While the radiologist in California was not a witness at trial, and therefore we are not faced with the situation where an expert bases his opinion upon the opinion "testified to by other witnesses", the case at bar is still controlled by the rationale of the general rule that an expert may not base his opinion upon the opinion of another, especially an opinion which is not even testified to at trial. See generally Green, Ga.Law of Evidence (2nd ed.), § 111.

It was not error, therefore, for the trial court to exclude the testimony. Compare Life Ins. Co. of Ga. v. Dodgen, 148 Ga.App. 725, 729(3), 252 S.E.2d 629 (1979) where the opinion of a treating physician was included in records and reports, and "formed a part of the background for professional expert'[s] opinion" who testified at trial. Appellant's reliance on City of Atlanta v. McLucas, 125 Ga.App. 349, 187 S.E.2d 560 (1972) and Ga. Power Co. v. Edwards, 136 Ga.App. 135, 220 S.E.2d 460 (1975) is misplaced because, as stated above, unlike those cases, appellant's expert was not basing his opinion on facts as told to him by others.

5. Appellant next asserts as error the admission of testimony regarding the generally accepted opinion of thoracic surgeons as to whether "aspiration should or should not be done before biopsying any given node." On the record before us, "[i]t was not error to admit this testimony, as similar evidence of other witnesses was admitted without objection. [Cit.]" Hammond v. Paul, 249 Ga. 241, 242, 290 S.E.2d 54 (1982). See also Sikes v. Wilson, 74 Ga.App. 415, 39 S.E.2d 902 (1946).

6. During appellant's cross-examination of the radiologist who made the x-rays and tomograms of Mrs. Martin's chest, appellee successfully objected to a hypothetical question propounded to the witness. Appellee's objection was sustained on the basis that the question assumed a fact not in evidence. OCGA § 24-9-67 (Code Ann. § 38-1710). Specifically, the fact which was assumed in the question as propounded by appellant but which appellee asserts was not in evidence was that the mass as shown in the presurgery x-rays and tomogram was suspected to be vascular in nature. Appellee argues that there was no evidence of record that the mass as seen in the x-rays and tomograms was suspected to be vascular, but, to the contrary, was suspected at all...

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