Landers v. Georgia Baptist Medical Center

Decision Date15 July 1985
Docket NumberNo. 70663,70663
Citation175 Ga.App. 500,333 S.E.2d 884
CourtGeorgia Court of Appeals
PartiesLANDERS v. GEORGIA BAPTIST MEDICAL CENTER et al.

Fred A. Gilbert, Decatur, Leonard S. Luckett, Atlanta, for appellant.

Robert D. Roll, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Herbert Landers, husband of the deceased, Helen Landers, appeals from summary judgment granted to four defendant doctors. Helen Landers was diabetic and in December 1981, experienced total failure of her kidneys. She was admitted to Georgia Baptist Hospital where it was decided that she would need permanent dialysis. A surgical procedure was performed to install a permanent arteriovenous shunt for hemodialysis in her left arm. On December 31, 1981, she was discharged to a doctor for followup hemodialysis. She was admitted to DeKalb General Hospital on January 7, 1982, and diagnosed as having an advanced case of gangrene in the arm on which the surgery had been performed. Her doctors at DeKalb General determined there was no alternative and amputated her left arm. The complaint alleges Mrs. Landers is deceased. No explanation appears in the record.

The four defendant doctors moved for summary judgment and in support thereof submitted their affidavits, as experts, that their surgery on, and treatment of, Mrs. Landers comported fully with the requisite degree of competent care and skill customarily and ordinarily employed by physicians generally. All affiants stated their qualifications as experts and recited facts within their personal knowledge. Each claimed to have exercised that degree of care and skill customarily and ordinarily employed by physicians and surgeons when treating a patient with the symptoms presented by Mrs. Landers.

In response to the defendant's motion for summary judgment, plaintiff presented the affidavit of his medical expert which was based on "the medical records of ... Helen Frances Landers ... and other pertinent documentation supplied by her attorneys.... [I]t [was his] professional opinion that defendants' care of plaintiff was not in keeping with good and accepted medical practice in Fulton County, Georgia."

The trial court found that plaintiff's expert's affidavit had no probative value, denied plaintiff's motion for a continuance, and granted summary judgment to the four defendant doctors. Plaintiff brings this appeal. Held:

1. Plaintiff contends the affidavits of the defendant doctors "failed to pierce the pleadings contained in plaintiff's complaint." The complaint alleged three bases for recovery: (1) the failure of the doctors to exercise a reasonable degree of care and skill; (2) a breach of a duty of care by releasing Mrs. Landers from the hospital and abandoning her with a serious infection in her arm; and (3) a breach of an implied warranty that defendants possessed the requisite skill to undertake treatment of Mrs. Landers and to treat her in a manner to avoid the injury she sustained.

The defendant doctors' affidavits stated their individual medical credentials, their expertise in their specific field of medicine, and their expert opinion that the surgery and their treatment of Mrs. Landers was in accordance with that degree of care and skill customarily and ordinarily employed by physicians generally. A physician is not an insurer or warrantor that the exercise of his professional expertise will effect the cure of a patient. Hyles v. Cockrill, 169 Ga.App. 132, 138, 312 S.E.2d 124. The law recognizes that medicine is an inexact science and the fact that treatment has resulted unfavorably does not raise a presumption of want of proper care, skill, or diligence. Id., pp. 133-134, 312 S.E.2d 124.

The law presumes that medical and surgical services were performed in an ordinarily skillful manner and the burden is on the one receiving the services to show a want of due care, skill, and diligence. Shea v. Phillips, 213 Ga. 269, 271, 98 S.E.2d 552. A defendant-doctor is competent to give his opinion as an expert in a medical malpractice action against him. Parker v. Knight, 245 Ga. 782(3), 267 S.E.2d 222. Such expert testimony, the same as any other expert testimony on the same issue, can be sufficient to pierce the pleadings of the plaintiff-patient. Payne v. Golden, 245 Ga. 784, 267 S.E.2d 211.

"In a medical malpractice action, in which the defendant is held to the higher standard of care within the profession, a plaintiff, in order to resist a defendant's motion for summary judgment based on his affidavit that his services were performed with the requisite degree of skill and care, must produce a physician's, or qualifying expert's, affidavit stating that the defendant did not treat or care for the plaintiff with that degree of skill and care exercised in the medical profession generally." Childs v. Christmas, 171 Ga.App. 756, 758, 320 S.E.2d 629.

There is an exception to the general rule that expert testimony is usually required for a plaintiff-patient to overcome the presumption of proper performance and use of due care and skill of a defendant-doctor. This exception is known as the "pronounced results" of medical treatment which is so obviously negligent that jurors would recognize the negligence by reason of common knowledge and experience, and expert medical testimony would not be necessary. Shea v. Phillips, supra, 213 Ga. at pp. 271-272, 98 S.E.2d 552. An example of possible negligence in medical treatment of a patient, not requiring expert medical testimony to refute a defendant-doctor's affidavit of use of due care and skill, is the puncturing of the patient's lung by the doctor using a syringe in a shoulder. See Killingsworth v. Poon, 167 Ga.App. 653, 655, 307 S.E.2d 123.

The allegations of negligence in the complaint, and expanded in the brief, are not such acts of negligence as would come within the "pronounced results" exception. Terrell v. West Paces Ferry Hosp., 162 Ga.App. 783(1), 292 S.E.2d 433; Hughes v. Malone, 146 Ga.App. 341, 345, 247 S.E.2d 107.

Hence, in order for the plaintiff to recover in a medical malpractice case wherein defendants have submitted their affidavits showing due care and treatment of the patient, plaintiff must produce opinion testimony of an expert witness in opposition to avoid summary judgment. Howard v. Walker, 242 Ga. 406, 407, 249 S.E.2d 45. If the plaintiff...

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    • Georgia Court of Appeals
    • June 28, 1989
    ...first assertion is incorrect. Hayes v. Brown, 108 Ga.App. 360, 363(1), 133 S.E.2d 102 (1963). See also Landers v. Ga. Baptist Med. Center, 175 Ga.App. 500, 501(1), 333 S.E.2d 884 (1985). Likewise the assertion that the sentence is confusing because not adjusted to the evidence is incorrect,......
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    ...307 S.E.2d 123. See McClure v. Clayton County Hosp. Auth., 176 Ga.App. 414, 416, 336 S.E.2d 268 (1985); Landers v. Ga. Baptist Medical Center, 175 Ga.App. 500, 333 S.E.2d 884 (1985). The Hospital enumerates as error the trial court's holding that this limited "pronounced results" exception ......
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