Kuttner v. Swanson

• Citation: 2 S.E.2d 230,59 Ga.App. 818
• Decision Date: 13 March 1939
• Docket Number: 27278.
• Parties: KUTTNER v. SWANSON.
• Court: Georgia Court of Appeals

2 S.E.2d 230

59 Ga.App. 818

KUTTNER v. SWANSON.

No. 27278.

Court of Appeals of Georgia, Division No. 2.

March 13, 1939

Rehearing Denied March 30, 1939.

Syllabus by the Court.

Douglas Andrews & Cole and J. E. Feagin, all of Atlanta, for plaintiff in error.

Bryan Middlebrooks & Carter and John A. Dunaway, all of Atlanta, for defendant in error.

PER CURIAM.

Mrs Max Kuttner brought suit against Dr. Cosby Swanson for damages alleged to have been sustained by her through the malpractice of the defendant in administering X-ray treatment to her, it being alleged that he was negligent (a) in failing to make a test of plaintiff's skin in order to determine the quantity of X-ray radiation plaintiff's skin could safely absorb; (b) in administering three of the X-ray

treatments to plaintiff within fifteen days and in failing to wait at least ten days between each of the treatments; (c) in exposing her neck and chest to X-ray treatment for three minutes and fifty seconds instead of two minutes; (d) in burning the skin of her neck, chest and chin in exposing the same to the X-ray radiation as aforesaid; (e) in failing to use a quantity meter and a quality meter to measure the radiation; (f) in using X-ray treatment for the plaintiff's condition; (g) This ground abandoned in court.); (h) in leaving at frequent intervals the room occupied by the plaintiff while the treatment was being administered. The defendant denied liability and alleged in his answer that the treatment administered was in the exercise of the care and skill required by law. The jury returned a verdict in favor of the defendant, and the exception here is to the judgment overruling the motion for new trial as amended.

Inasmuch as it is the view of the majority of the court that the case should be reversed on certain special grounds of the motion for new trial, it is deemed unnecessary to pass on the general grounds.

1. The first special ground of the motion for new trial, designated as No. 4, complains that the court, after charging that a physician must bring to the exercise of his profession a reasonable degree of care and skill, erred in charging as follows: "This standard of care, this degree of care and skill or diligence is defined in law to be such care and/or skill and/or diligence as, under the law or similar conditions and all the surrounding circumstances is ordinarily employed by the profession generally in this locality." It is contended (a) that the court erred in defining the exercise of care and skill as that used by the profession generally in the same locality, whereas the true test is the standard of care, skill or diligence used by physicians generally whether in or near Atlanta, the locality in which the treatment in the present case was administered. Code,§ 84-924 provides: "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." This section is also applicable to a physician who specializes in the administering of X-ray treatment. The standard prescribed by the code section, "when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally." McLendon v. Daniel, 37 Ga.App. 524, 528, 141 S.E. 77, 79; Hughes v. Weaver, 39 Ga.App. 597 (1), 148 S.E. 12; Radcliffe v. Maddox, 45 Ga.App. 676, 680, 165 S.E. 841. The physician must not only have the requisite care and skill, but must exercise these qualifications. Hinkle v. Smith, 12 Ga.App. 496, 77 S.E. 650; Grubbs v. Elrod, 25 Ga.App. 108, 102 S.E. 908; McLendon v. Daniel, supra; Richards v. Harpe, 42 Ga.App. 123 (11), 155 S.E. 85; Chapman v. Radcliffe, 44 Ga.App. 649 (1), 162 S.E. 651. The true rule is that the reasonable degree of care and skill prescribed in the Code is not such as is ordinarily employed by the profession in the locality or community. It is a question of fact for the jury to determine what is reasonable care and skill under the circumstances, and in so determining the jury may consider the degree of care and skill practiced by the profession generally in the locality or the community. In Akridge v. Noble, 114 Ga. 949, 41 S.E. 78, cited and relied on by counsel for defendant in error, it was not held that the care and skill required of a physician is that employed by the profession generally in the locality or community. See the comments of the Supreme Court on that case in Pace v. Cochran, 144 Ga. 261, 86 S.E. 934. See also Fincher v. Davis, 27 Ga.App. 494, 108 S.E. 905; McLendon v. Daniel, 37 Ga.App. 524, 141 S.E. 77; Gramm v. Boener, 56 Ind. 497, 501; McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354. The charge as given was, therefore, error for the reason assigned.

(b) It is further contended that such portion of the charge was error, in that the court instructed the jury that the defendant was to be absolved if he brought to the exercise of his profession either the care or the skill or the diligence ordinarily employed by the profession, whereas under the law the physician must both possess and exercise a reasonable degree of care and skill. The charge of the court, although it used the expression "and/or" between the words "care" and "skill," is calculated to instruct the jury that the rule would be satisfied if the defendant had used either care or skill and not both. If "and" and "or" are interchangeable, as held by the Supreme Court in Davison v. Woolworth Co., 186 Ga. 663, 198 S.E. 738, 118 A.L.R. 1363, the charge is an instruction to the jury that the rule requires of a physician the exercise of either care or skill, and that if the physician brought to bear only a reasonable degree of skill he is not required to bring to bear any degree of care, or that if he brought to bear a reasonable degree of care he is not required to bring to bear any degree of skill. Richards v. Harpe, 42 Ga.App. 123, 155 S.E. 85. The charge was error for the reason assigned.

(c) It is further contended that the portion of the charge, together with the sentence immediately preceding, was error for the reason that it purported to charge the test applicable to a physician or surgeon, whereas the court should have charged that, the defendant being a specialist, as shown by the pleadings and the evidence, he should be held to the standard of care and skill employed by specialists generally. The defendant, while a specialist, was nevertheless a physician, and the care and skill to be possessed and exercised by him, whether in treating with medicine or X-ray, is that ordinarily employed by physicians generally under similar conditions and like circumstances. The failure to charge as contended for was not error for the reason assigned.

2. The fifth special ground is similar to ground 4 (a) dealt with in the first division of the opinion, and is controlled by the ruling thereon.

3. The sixth special ground complains that the charge of the court that the plaintiff would not be entitled to recover if by the exercise of ordinary care, she could have avoided the consequences of the defendant's negligence, if any, was inapplicable to the facts of the case and that such charge was therefore error. There being no evidence whatsoever from which it could be inferred that the plaintiff did, or omitted to do, anything that could be chargeable to her as negligence contributing to the injury, there is no evidence that she failed to exercise ordinary care, or that she, in the exercise of ordinary care, could have prevented the injury. The court erred in charging the jury that a duty was upon the plaintiff to exercise ordinary care to prevent the consequences of the defendant's negligence, if any, and that if she failed to do so there could be no recovery.

4. The court charged the jury as follows: "Now, it is contended by the defendant, gentlemen, that, in addition to the contentions to which I have already directed your attention any injury that the plaintiff may have received, as already stated, was not due to the negligence of the defendant, but was due to idiosyncrasies in the plaintiff herself, due to the susceptibility or hypersensitiveness of the plaintiff to X-ray exposure, and that this was the direct, proximate and producing cause of any injuries that she may have received. Now, gentlemen, the plaintiff denies this, and as to what the truth is as to this issue, you will determine. Gentlemen, you consider as to whether or not she was hypersensitive, if she had an idiosyncrasy that in and of itself produced and brought about the condition which she claims to have suffered. And you determine, gentlemen, as to whether or not this was known by the defendant, or in the exercise of ordinary care on his part should have been known by him. The defendant denies this, and the burden as to that, gentlemen, is on the defendant to prove that, the law being that a party asserting a fact has the burden of proving the same to be true." It is contended by the plaintiff in error in the seventh special ground of her motion for new trial that, in connection with other portions of the charge as to the burden resting on the plaintiff to prove the allegations of her petition, it was confusing and misleading to the jury and had the effect of instructing them that the only burden on defendant was to prove that the plaintiff was idiosyncratic or hypersensitive, and that the burden was on the plaintiff to prove that she could not, by the exercise of ordinary care, have avoided the consequences of the defendant's...