Jackson v. Gershon
| Decision Date | 25 October 1983 |
| Docket Number | No. 39766,39766 |
| Citation | 251 Ga. 577,308 S.E.2d 164 |
| Parties | JACKSON v. GERSHON. |
| Court | Georgia Supreme Court |
Carl Fredericks, Marietta, for Irma Jackson.
George W. Hart, Lawrie E. Demorest, Atlanta, for Charles R. Gershon.
Certiorari was granted to review the decision of the Court of Appeals affirming a grant of summary judgment for appellee physician in this medical malpractice action. We reverse.
Appellant Irma Jackson was admitted to Paulding County Memorial Hospital on September 11, 1980, complaining of severe lower back pain and blood in her urine. Appellee Gershon, a urologist, first saw her on September 13 and recommended conducting a cystoscopy, a relatively simple procedure in which a "lighted telescope" is inserted through the urethra 1 into the bladder for inspection of the bladder's interior. Appellant agreed to undergo a cystoscopy, and an x-ray of appellant's urinary tract was taken that day. Two days later, on September 15, Dr. Gershon for the first time reviewed this x-ray and noted the presence of three small non-obstructive kidney stones in appellant's left kidney, as well as an obstruction, of unknown origin, in appellant's right ureter. 2
A cystoscopy was performed on September 15. Dr. Gershon found nothing unusual inside appellant's bladder. After completing the normal cystoscopy procedure, and without consulting appellant or conducting further tests or x-rays, he inserted a "stone basket" device up appellant's right ureter in an attempt to clear up the blockage there. This procedure caused a break in the ureteral wall, 3 which in turn necessitated an extensive operation to repair damage to appellant's ureter and reimplant the ureter in her bladder.
Following the operation, appellant continued to experience extreme pain in her right side. She consulted a second physician, Dr. Roper, who operated on appellant in February 1981 to remove extensive scar tissue which had formed around appellant's right ureter as a result of the first operation. Dr. Roper also reimplanted appellant's right ureter in the bladder in order to correct a faulty reimplantation by Dr. Gershon. This action was necessary, testified Dr. Roper, to prevent scar tissue from reforming around the ureter and to improve drainage through it.
Appellant sued Dr. Gershon for malpractice in the performance of the cystoscopy, alleging negligence and breach of an implied contract to perform skilled professional services. Dr. Gershon moved for summary judgment, presenting his own affidavit and deposition as expert testimony to the effect that his treatment of appellant comported with accepted medical standards and was, therefore, non-negligent. Appellant responded with the deposition of Dr. Roper stating that, while he would have approached appellant's problem more conservatively, Dr. Gershon's treatment was within the standards of adequate medical care. More specifically, Dr. Roper testified that he personally disapproved of "diagnostic" use of the stone basket device and would not have employed the procedure on appellant without first conducting further tests. Based on this testimony, the trial court granted summary judgment for Dr. Gershon, and the Court of Appeals affirmed. Jackson v. Gershon, 165 Ga.App. 492, 300 S.E.2d 335 (1983).
Appellant's expert testimony raised a factual issue as to Dr. Gershon's alleged negligence in (1) proceeding with the "stone basket" for "diagnostic" use without first conducting further tests to determine whether, in fact, there was a kidney stone blocking appellant's right ureter; and (2) performing surgery on appellant's ureter and bladder without first attempting to intubate the ureter.
It is true, as stated by the Court of Appeals in its opinion, that to avoid summary judgment a plaintiff in a malpractice action must counter a defendant's expert affidavit with a contrary expert opinion. See Howard v. Walker, 242 Ga. 406, 408, 249 S.E.2d 45 (1978). Appellant has met this burden. Dr. Roper's deposition, while not unequivocal, was "sufficient to authorize the jury to find that the defendant had in fact failed to use 'due care, skill and diligence' in treating the plaintiff," Lawrence v. Gardner, 154 Ga.App. 722, 724, 270 S.E.2d 9 (1980). Dr. Roper stated that the surgery performed by Gershon caused massive scar tissue to surround appellant's right ureter, thus constricting the flow of fluids through it and causing pain; that the ureter had been implanted...
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Giddens v. Med. Ctr. of Cent. Ga.
...from a literal reading of our opinions. But utilization of a common-sense approach to its sufficiency as mandated by Jackson v. Gershon , 251 Ga. 577, 308 S.E.2d 164 (1983), with a view of the proof in favor of the party opposing the motion, requires our holding that genuine issues of mater......
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...skill and diligence" in treating the plaintiff[?]' Lawrence v. Gardner, 154 Ga.App. 722, 724 (270 SE2d 9) (1980)." Jackson v. Gershon, 251 Ga. 577, 578, 308 S.E.2d 164) (1983). As can be seen, the problem is not the absence of the "magic words"; they are there, and that is all that is there......
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Bowling v. Foster, A01A2094.
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