Kenney v. Piedmont Hospital

• Decision Date: 20 November 1975
• Docket Number: No. 51274,No. 2,51274,2
• Citation: 136 Ga.App. 660,222 S.E.2d 162
• Parties: Ouida KENNEY et al. v. PIEDMONT HOSPITAL et al
• Court: Georgia Court of Appeals

Page 162

222 S.E.2d 162

136 Ga.App. 660

Ouida KENNEY et al. v. PIEDMONT HOSPITAL et al.

No. 51274.

Court of Appeals of Georgia, Division No. 2.

Nov. 20, 1975.

William T. Elsey, Cartersville, for appellants.

T. M. Smith, Jr., Hunter S. Allen, Jr., Robert G. Tanner, Atlanta, for appellees.

CLARK, Judge.

This appeal in a medical professional negligence ¹ action is from a judgment rendered upon a verdict for the four defendants, they being a hospital, a vascular surgeon, his employee-associate who was also a vascular surgeon, and an anesthesiologist. Plaintiffs were patient, upon whom surgery was performed, and her husband, who sought damages for his wife's personal injuries.

In October 1970, plaintiff wife arranged with Dr. J. Harold Harrison to perform upon her an operation known as a bilateral carotid arteriogram. He disclosed the significant risks involved including the statistic that serious complications including the possibility of death occur in approximately one in a thousand operations of this type. Dr. Harrison arranged for admittance of the plaintiff to Piedmont Hospital on October 27, 1970, with the operation being scheduled for the following day. After her admission, Dr. Harrison's employee-associate, Dr. Alfredo Alarcon informed the patient that Dr. Harrison was then out of the city but was expected to return that evening or the next morning. He explained that she might either allow Dr. Alarcon to perform the operation or reschedule the procedure for a later time. She accepted Dr. Alarcon's services with the qualification that if Dr. Harrison should return to the city, the latter was to perform the operation. Dr. Alarcon also made a disclosure of the risks.

Dr. Harrison returned to Atlanta the evening before the operation from a vacation taken to combat fatigue and a persistent case of sinusitis. Because of this sinus condition, he was not feeling well enough the morning of the scheduled operation to undertake the task.

Dr. Alarcon proceeded to perform the operation. Complications developed during the surgery but were such that the patient was returned to the recovery room in good condition and with vital signs stable. While she was in the recovery room certain events occurred which plaintiff alleged constituted negligence on the part of Piedmont Hospital personnel. These recovery room occurrences were also the basis of claims of negligence against Dr. Alarcon and the anesthesiologist. Then, when definitive neurological signs indicative of stroke were observed, Dr. Harrison was called upon to perform emergency surgery along with Dr. Alarcon. Permanent brain damage resulted from the stroke.

Upon the trial, after both sides had completed their presentation of evidence, defendants moved for a partial verdict to be directed against the plaintiffs with respect to certain stated specifications of negligence as to each defendant. Some of these were sustained. Thereafter, in charging the jury the judge made no reference to those eliminated specifications but instructed the jury only as to the remaining negligence specifications.

The first eight enumerations attack those rulings which eliminated the negligence specifications. Two other enumerations deal with alleged errors during the trial. Another attacks a portion of the charge. The final enumeration of error asserts the court erred in overruling the plaintiffs' motion for new trial as amended.

At the conclusion of a five-day trial, the jury returned a verdict for all defendants. The appeal is from that judgment entered on that verdict and from the denial of a subsequent new trial motion. Held:

1. The first assignment of error attacks the direction of a verdict against the plaintiffs with respect to the specification of negligence as to defendant Dr. Harrison arising out of breach of contract. When first pleaded this specification of negligence was limited to three words: 'Breach of contract.' Then when amended under the caption of 'Amended specifications of negligence as to Dr. Harrison,' the pertinent portion read: 'As to Defendant Harrison, breach of contract (pleader's emphasis) in that there existed an expressed and implied contract between Dr. Harrison as physician and Mrs. Kenney as patient for the purpose of performing upon Mrs. Kenney carotid arteriograms; that Dr. Harrison breached the duty imposed upon him by law incident to and created by the contract; . . . (reciting specific facts) which acts and/or omissions constituted a deliberate breach of the duty he owed Mrs. Kenney under the physician patient contract . . .' (R. 140).

The essence of appellants' contention was that the patient had relied upon Dr. Harrison's reputation as an outstanding vascular surgeon in contracting with him to perform the operation and his failure to do so when available constituted a violation of his contractual duty which involved a non-assignable personal performance obligation.

The trial court did not err because this specification as amended was not for breach of contract but ex delicto for failure to perform an alleged contract. Here plaintiffs have not raised a question of misfeasance in the performance of a contract which would be a tort. Instead, plaintiffs asserted a failure to perform arising out of a contract, which non-feasance is not tortious.

In Brown v. Hilton Hotels Corp., 133 Ga.App. 286, 211 S.E.2d 125 (certiorari dismissed as improvidently granted, 234 Ga. 663, 218 S.E.2d 78) our court dealt with a similar question. 133 Ga.App. at page 288, 211 S.E.2d at page 127 of that opinion we wrote as follows: 'A study of those authorities and similar cases shows that in every instance where such tort cause of action was upheld there was negligence in the performance of a duty owed either apart from the contract or arising from the contract rather than from a failure to carry out the contract itself. This is pointed out in Mauldin v. Sheffer, 113 Ga.App. 874, 877, 150 S.E.2d 150 where it is said that 'Generally, a mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort . . .' In discussing the difficulty of formulating a definitive rule workable upon application to all cases, our court there concluded at p. 879, 150 S.E.2d at 154 that 'one clear distinction seems to have been made which is indicative of the scope and application of the rule, and that is the distinction between nonfeasance or the mere failure to perform the contract at all, and misfeasance or the negligent performance of the contract. (Cit.). As to the former of these the cases have fairly consistently held that it affords no basis for an action ex delicto, even though the failure to perform may have been characterized as negligent (cits.); while in the latter a cause of action ex delicto may be had. (Cit.)." See also the discussion and citations in Long v. Jim Letts Oldsmobile, Inc., 135 Ga.App. 293, 294(2), 217 S.E.2d 602.

As all of the acts and omissions contained in this specification dealt with Dr. Harrison's failure to perform the operation and did not allege any misfeasance arising out of a contract, the trial judge did not err in his ruling that this specification was not to be considered by the jury.

2. The second enumeration attacks the court's elimination of that specification of negligence as to Dr. Harrison which charged him with abandonment of his patient. Such conduct is a tort. Scott v. Simpson, 46 Ga.App. 479, 167 S.E. 920. This specification stated 'That Dr. Harrison, after being hired as Mrs. Kenney's physician abandoned her treatment without reasonable notice to her and without providing for her a competent physician in his place.'

Pretermitting any reference to the ailment which Dr. Harrison testified prevented him from performing the original operation, the trial court was correct in its ruling. 'The unwarranted abandonment of a case after its assumption will render a physician or surgeon liable in damages, at least where he does not give reasonable notice or provide a competent physician in his place.' 70 C.J.S. Physicians and Surgeons § 48f(2), p. 966. See also Norton v. Hamilton, 92 Ga.App. 727, 731, 89 S.E.2d 809.

Inasmuch as the record (T. 389-392) discloses Dr. Alarcon's extensive qualifications it is clear that Dr. Harrison provided a fully capable physician as his replacement. Accordingly, he could not be held to have committed the tort of abandonment.

3. The next three enumerations deal with the court's elimination of three of the specifications of negligence as to Dr. Alarcon.

Enumeration number three reads as follows: 'Direction of a verdict against the plaintiffs with respect to specification of negligence against Defendant Dr. Alarcon concerning his negligence in failure to give definitive instructions to the recovery room personnel. (T. 1125).'

To establish professional medical negligence the evidence presented by the patient must show a violation of the degree of care and skill required of a physician. Code Ann. § 84-924. Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally. Bryan v. Grace, 63 Ga.App. 373(1a), 11 S.E.2d 241; Pilgrim v. Landham, 63 Ga.App. 451, 11 S.E.2d 420; Hayes v. Brown, 108 Ga.App. 360, 133 S.E.2d 102. There is a presumption that medical or surgical services were performed in an ordinary skillful manner and the burden is on the plaintiff to show failure to exercise due care and skill. Shea v. Phillips, 213 Ga. 269, 271(2), 98 S.E.2d 552; Wilson v. Kornegay, 108 Ga.App. 318, 132 S.E.2d 791. Excepting in a few extreme circumstances, the...