Killingsworth v. Poon

• Decision Date: 15 July 1983
• Docket Number: No. 65761,65761
• Citation: 307 S.E.2d 123,167 Ga.App. 653
• Parties: KILLINGSWORTH v. POON.
• Court: Georgia Court of Appeals

Page 123

307 S.E.2d 123

167 Ga.App. 653

KILLINGSWORTH v. POON.

No. 65761.

Court of Appeals of Georgia.

July 15, 1983.

Rehearing Denied July 29, 1983.

Certiorari Denied Sept. 6, 1983.

William C. Head, Athens, for appellant.

Gary B. Blasingame, David E. Barrett, Athens, for appellee.

CARLEY, Judge.

Appellant-patient appeals from the grant of summary judgment to appellee-physician in this medical malpractice case.

On November 16, 1981, appellant went to the office of appellee, complaining of a minor muscle pain in her left shoulder. After examining appellant, appellee diagnosed the problem as a pulled muscle and, as part of the treatment, injected two syringes into appellant's shoulder area. Upon receiving the injections, appellant experienced immediate chest pain and, on the following day, she went to another doctor with complaints of that chest pain and of shortness of breath. At that time, it was discovered that appellant had sustained a collapsed lung. Appellant filed the instant suit, alleging that, as a result of appellee's negligent injections to relieve muscular pain, the membrane of appellant's left lung had been penetrated, causing her to suffer severe pain throughout her entire chest cavity.

In support of his motion for summary judgment, appellee submitted his own affidavit. Appellee's affidavit contained only the general statement that, in his own professional medical opinion, he had followed and complied with the standards of the medical profession generally, and that his treatment of appellant had been rendered in conformity with such standards. Appellant opposed the appellee's motion with her own affidavit, and the affidavit of Dr. Norman Johnson, the physician who had examined and treated appellant the day after she received the injections from appellee. Upon appellee's motion, the trial court deleted certain portions of Dr. Johnson's affidavit. After the trial court's deletions, Dr. Johnson's affidavit stated in relevant part that, from his examination of appellant, the only apparent cause of her punctured lung was "the injections she received on the previous day". However, nowhere in the affidavit did Dr. Johnson state that it was his expert medical opinion that in administering the injections appellee had failed to exercise a reasonable degree of care and skill required under the circumstances.

OCGA § 51-1-27 (Code Ann. § 84-924) provides that "[a] person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had." It has been held that "[t]he degree of care and skill required is that which, under similar conditions and like surrounding circumstances is ordinarily employed by the profession generally." Hayes v. Brown, 108 Ga.App. 360, 363(1), 133 S.E.2d 102 (1963). The presumption in a medical malpractice case is that "the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill, and diligence. [Cits.]" Shea v. Phillips, 213 Ga. 269, 271(2), 98 S.E.2d 552 (1957). See also Summerour v. Lee, 104 Ga.App. 73, 73(2), 121 S.E.2d 80 (1961); Washington v. City of Columbus, 136 Ga.App. 682, 687, 222 S.E.2d 583 (1975). To overcome this presumption of due care and to show negligence in a medical malpractice case, it is usually required that the patient offer expert medical testimony to the effect that the defendant-doctor failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances. Jackson v. Tucker, 118 Ga.App. 693(1), 165 S.E.2d 466 (1968); Pilgrim v. Landham, 63 Ga.App. 451, 454, 11 S.E.2d 420 (1940); Summerour v. Lee, supra, 104 Ga.App. at 74, 121 S.E.2d 80; Washington v. City of Columbus, supra, 136 Ga.App. at 687, 222 S.E.2d 583. "The court and jury must have a standard measure which they are to use in measuring the acts of a doctor to determine whether he exercised a reasonable degree of care and skill; they are not permitted to set up and use any arbitrary or artificial standard of measurement that the jury may wish to apply. The proper standard of measurement is to be established by testimony of physicians, for it is a medical question. [Cits.]" Hayes v. Brown, supra 108 Ga.App. at 363(1), 133 S.E.2d 102.

The courts of this state have repeatedly held that the only exceptions to the requirement that the plaintiff-patient must produce expert medical testimony showing a deviation from the applicable standard of care in opposition to the defendant-doctor's medical testimony so as to create a genuine issue of material fact and avoid summary judgment, are when the facts concerning the alleged malpractice, "although connected with medicine, are so well known as not to require expert testimony to place them before the jury, or where the case concerns matters which juries must be credited with knowing by reason of common knowledge. [Cits.]" Jackson v. Tucker, supra, 118 Ga.App. at 693, 165 S.E.2d 466. Stated another way, this evidentiary burden on plaintiff-patients to produce such expert medical testimony is applicable except in those cases where the asserted actionable negligence would appear to be so clear from the evidence then of record that expert testimony would, at that point, otherwise be unnecessary to establish a prima facie case of malpractice. Terrell v. West Paces Ferry Hospital, 162 Ga.App. 783, 292 S.E.2d 433 (1982); Hughes v. Malone, 146 Ga.App. 341, 345, 247 S.E.2d 107 (1978). Examples often cited by Georgia courts of what would be such "pronounced results" indicative of possibly negligent medical treatment include those evinced when a doctor, while stitching a wound on his patient's cheek, by an awkward move, thrusts his needle into the patient's left eye, or where a leg or limb which has been broken is shorter than the other after treatment. Shea v. Phillips, supra 213 Ga. at 271-272, 98 S.E.2d 552; Summerour v. Lee, supra 104 Ga.App. at 75, 121 S.E.2d 80; Caldwell v. Knight, 92 Ga.App. 747, 751, 89 S.E.2d 900 (1955).

However, we note that although the above facts are often cited as "PRONOUNCED RESULTS" INDICATIVE OF POSSIBLY negligent medical treatment, they have only been cited as examples, as such factual situations have apparently not been directly before Georgia courts. See Shea v. Phillips, supra, 213 Ga. at 271, 98 S.E.2d 552. In fact, the only Georgia case that we have found where possibly negligent actions by the doctor appeared so clearly from the record that a prima facie case of medical malpractice was made out even though the plaintiff did not produce an expert's medical testimony concerning the applicable standard of care in response to the defendant-doctor's affidavit denying a breach of that standard was in Caldwell v. Knight, supra. In Caldwell, the plaintiff-patient alleged that he suffered severe injuries as the result of the defendant-chiropractor's negligent treatment. The evidence revealed that the defendant incorrectly strapped a machine to the plaintiff which subjected him to pulling and stretching of his spinal column, during which time the plaintiff was left unattended. On these facts, this court held that the plaintiff had made out a prima facie case of malpractice even though the plaintiff had not established "by expert testimony that the defendant failed to use that degree of care and skill generally followed by other like practitioners in the community." Caldwell v. Knight, supra, 92 Ga.App. at 751, 89 S.E.2d 900. In so doing, we cited with approval the proposition that, " '[i]n certain types of malpractice cases, the law is that negligence can be proved by nonexpert witnesses. Where, as here, recovery is sought not for negligence in making an incorrect diagnosis or in adopting the wrong standard of treatment, but for the performance of an operation in a negligent manner, any pertinent evidence having a fair tendency to sustain the charge of negligence is sufficient to take the case to the jury.' ... We hold here that if a defendant chiropractor, in giving a patient an adjustment, were to take a hammer and shatter his backbone with a blow, or if a surgeon in performing an appendectomy were to take a knife and unintentionally slit the patient's throat, a non-expert jury could find such conduct to be negligence without the aid of expert testimony to that effect." Caldwell v. Knight, supra at 751, 752, 89 S.E.2d 900.

Thus, we turn to the question of whether the instant case is within the general rule or is instead one of those exceedingly rare cases wherein the medical questions presented concern matters which a jury can be credited with knowing by reason of common knowledge or the possibility of actionable medical negligence appears so clearly from the record that the plaintiff-patient need not produce expert medical testimony concerning the applicable standard of care to avoid summary judgment for a defendant-doctor testifying as to his own lack of negligence.

The relevant facts in making this determination are as follows: Appellant visited the office of appellee, complaining of pain "from a pulled muscle in [her] shoulder." Immediately after appellee injected two needles in appellant's upper back in treatment of the muscular problem, for the first time, appellant developed a problem in her chest when she "began experiencing extreme pain and breathing difficulties ... [so that she] almost fainted right after [appellee] performed the injection." The following day appellant was diagnosed as having a punctured and collapsed lung and was required to obtain treatment for this condition at a hospital.

While appellee, in an answer to appellant's interrogatories, denied that he punctured appellant's lung during the course of the treatment...