Jackson v. Rodriquez

CourtUnited States Court of Appeals (Georgia)
Citation173 Ga.App. 211,325 S.E.2d 857
Docket NumberNo. 68926,68926
PartiesJACKSON v. RODRIQUEZ et al.
Decision Date05 December 1984

J. Matthew Dwyer, Jr., Beryl H. Weiner, Thomas C. Dempsey, Atlanta, for appellant.

Philip C. Henry, Robert D. Ingram, Atlanta, for appellees.

CARLEY, Judge.

Appellant slipped and fell while on the job, and thereafter he began experiencing pain in his left side. His employer sent him to the Corporate Center Clinic for an examination. On the day after he was injured, appellant was examined at the clinic by appellee Dr. Combs. During the course of the examination, appellant informed Dr. Combs that he had an ulcer and that he could not take aspirin because it irritated his stomach. Dr. Combs made a notation on appellant's medical record that appellant had a history of ulcer problems.

Dr. Combs determined that appellant was suffering from a muscle strain. He gave appellant two kinds of medication, Parafon Forte and Motrin, and he told appellant to go back to work. Appellant returned to the clinic the next day, complaining that his back pain continued and that the medication was irritating his stomach and his ulcer. Because of appellant's stomach irritation, Dr. Combs discontinued the Motrin he had given appellant and substituted Tylenol with codeine instead.

On the following day and again a few days later, appellant returned to the clinic for his third and fourth visits, respectively. On those occasions, appellant was examined by appellee Dr. Rodriquez. Appellant told Dr. Rodriquez that he was still suffering from back pain. There was evidence that Dr. Rodriquez was also informed of appellant's continuing stomach pain, although the physician denied that appellant complained of stomach problems on his third and fourth visits. In any event, on appellant's third visit to the clinic, Dr. Rodriquez prescribed acetominophen for him, and on the fourth visit, Dr. Rodriquez prescribed Prednisone, Kenalog (intramuscularly), and Darvon Compound-65, which contains approximately 60 percent aspirin.

Appellant's wife administered the medications as prescribed. Four days later, appellant experienced severe stomach pains and was taken by ambulance to a hospital. Emergency surgery was performed and appellant was found to have been suffering from a perforated duodenal ulcer.

Appellant subsequently instituted this medical malpractice action against appellees, alleging that they negligently prescribed medications which caused him to develop a ruptured ulcer. The physicians denied the material allegations of the complaint and, following discovery, the case proceeded to trial. Appellant appeals from the judgment entered on the jury verdict in favor of appellees.

1. The trial court did not err in denying appellant's motion for a new trial on the general grounds. Appellees' expert witness opined that there was no clear corollary between aspirin and ulceration, that low doses of aspirin should not cause stomach problems, that even high doses of aspirin should not cause duodenal (as opposed to gastric) ulceration, that, in all probability, the medications prescribed by appellees did not cause the perforated ulcer, and that the treatment rendered by appellees and the care they exercised was in compliance with that degree of skill and care employed by the medical profession generally. Additionally, another expert testified that the care rendered to appellant was in compliance with that degree of skill and care employed by the medical profession generally under similar conditions and circumstances. This evidence was sufficient to support the verdict of the jury. "It is, of course, of no moment that the evidence would also have authorized a verdict in some amount for the plaintiff. The jury weighed the evidence and made its choice. That was its duty and its function." Daniels v. Hartley, 120 Ga.App. 294, 295, 170 S.E.2d 315 (1969).

2. Appellant contends that the trial court erred by charging the jury on four occasions that physicians are presumed to be skillful. We recognize that it is error to repeat again and again a portion of a charge which is more favorable to one party than the other. Simms v. Floyd, 65 Ga. 719, 720(3) (1880). "But mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the [complaining party's] rights. [Cits.]" Baker v. State, 88 Ga.App. 894, 895, 78 S.E.2d 357 (1953). Thus, "to determine whether the error is prejudicial so as to result in reversal, the whole charge must be examined. [Cit.]" Moore v. Green, 129 Ga.App. 268, 269(2), 199 S.E.2d 317 (1973).

Upon an examination of the charge in its entirety, we find that appellant was not prejudiced by the repetition of the court's instruction concerning the presumption of a physician's skill. The court's lengthy charge covers 19 pages of the transcript. Other than the initial charge concerning the presumption, all of the charges were coupled with a more complete charge explaining how the presumption could be overcome by the plaintiff. In fact, two of the court's charges in this regard mirror an instruction specifically requested by appellant. "Although it would have been better not to repeat these rules of law, we do not believe [appellant] could have been prejudiced thereby." Moore v. Green, supra at 269, 199 S.E.2d 317 (2).

3. Appellant enumerates as error the trial court's instruction to the jury "that the law recognizes that medicine is an inexact science at best, and all that a doctor may do is assist it in accordance with the state [of] medical experience existing at the time of the treatment." This language appears in Hayes v. Brown, 108 Ga.App. 360, 363, 133 S.E.2d 102 (1963).

In the case of Blount v. Moore, 159 Ga.App. 80, 83, 282 S.E.2d 720 (1981), this court held: "Absent a qualification as to the necessity that a doctor exercise the care and skill ordinarily employed by the profession generally, we are therefore compelled to conclude that the verbatim language of the second sentence of the second paragraph of Division 1 of [Hayes v. Brown, supra] is not adaptable as a jury instruction and should not be included in a charge in a malpractice case because it is argumentative, inappropriate and misleading." (Emphasis supplied.) Blount v. Moore was a whole court case in which five judges (one of whom dissented because he thought the charge was reversible error) agreed that the instruction is improper and should not be given. The reasoning of Blount is sound, and we decline to overrule it. Accordingly, the challenged instruction was erroneous in the instant case. See also Hawkins v. Greenberg, 159 Ga.App. 302, 309-310, 283 S.E.2d 301 (1981). However, the giving of the improper charge does not require reversal, because appellant failed to voice an objection to it prior to the return of the jury verdict. OCGA § 5-5-24(a). " 'A party may not complain of the giving or failure to give an instruction to the jury, unless he objects thereto before the jury returns its verdict, stating distinctly his objection and the grounds of his objection.' [Cit.]" Barney v. Morris, 168 Ga.App. 426, 427, 309 S.E.2d 420 (1983).

4. Appellant also contends the trial court erred by charging the jury in terms of whether or not appellees were "guilty" of negligence. The word "guilty" appears three times in the court's charge. "Use by the trial court of the term 'guilty' in referring to [appellees'] alleged culpability for malpractice did not constitute reversible error. While it is clearly the better practice not to make use of the word in the context of a civil action, 'guilty' is not necessarily restricted to criminal culpability. See Black's Law Dictionary (4th Ed.) p. 836. We cannot say, therefore, that use of the term was so confusing or misleading as to constitute error." Blount v. Moore, supra at 83, 282 S.E.2d 720 (3).

5. The trial court instructed the jury that "a person is not bound to foresee and guard against incidents which are not reasonably to be expected or which would not occur except under exceptional circumstances.... [I]f you find from all the evidence that the incident described in this case came about as a result of exceptional circumstances which could not be reasonably foreseen or expected by the defendants, then the defendants cannot be held responsible for the occurrence." Appellant asserts that this charge erroneously misled the jury because it was not adjusted to the evidence.

" 'It has been held in many cases that a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they must be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again. A man's responsibility for his negligence must end somewhere. As has been well said: "One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable." ' " Seymour v. City of Elberton, 67 Ga.App. 426, 432, 20 S.E.2d 767 (1942). Accord, Peggy Ann of Ga. Inc. v. Scoggins, 86 Ga.App. 109, 116, 71 S.E.2d 89 (1952); Yarbrough v. Cantex Mfg. Co., 97 Ga.App. 438, 440, 103 S.E.2d 138 (1958).

In the case at bar, medical experts testified that there may be no direct medical link between aspirin and ulceration, that even high doses of aspirin should not have caused appellant's duodenal distress, and that the medications prescribed by appellees probably did not cause appella...

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