Lawrence v. Gardner, 59459
| Decision Date | 08 May 1980 |
| Docket Number | No. 59459,59459 |
| Citation | 270 S.E.2d 9,154 Ga.App. 722 |
| Parties | LAWRENCE v. GARDNER. |
| Court | Georgia Court of Appeals |
Harry J. Altman, Thomasville, for appellant.
William U. Norwood, Thomasville, for appellee.
Appellant-plaintiff appeals from the grant of summary judgment to the defendant doctor-appellee in a medical malpractice action. Plaintiff sought recovery against the defendant on the basis of the defendant's alleged failure to exercise the skill and care generally used by members of the medical profession in connection with defendant's performance of a hysterectomy on plaintiff. Plaintiff alleged that the surgery itself was negligently performed, that the defendant failed to diagnose and treat complications occurring subsequent to and because of the surgery, and that the surgery was unnecessary. Specifically plaintiff contends that defendant's negligence resulted in a very serious rectovaginal fistula discovered subsequent to the performance of the surgery. The defendant doctor moved for summary judgment asserting that no genuine issue of material fact existed and that defendant was entitled to judgment as a matter of law. The defendant relied upon the entire record in the case including his deposition and the depositions of three other licensed physicians. These depositions of the other physicians were taken during the discovery period on behalf of the defendant.
In his deposition testimony the defendant denied that he was negligent in any way or that he failed to exercise the requisite skill and care in his treatment of plaintiff. The defendant further testified that during the surgery he had not nicked, cut, clamped or in any manner traumatized the rectum of appellant. It was the defendant's contention that the fistula did not occur during the surgery. The deposition testimony of the three nonparty doctors deals in detail with the procedures utilized and the possible causation of the rectovaginal fistula. Though not couched in specific language of absolution, the testimony on direct examination of the three nonparty doctors generally was favorable to defendant in that all of these physicians indicated that it is possible for a rectovaginal fistula to occur without medical negligence.
However, the cross examination of each of these physicians resulted in what appellant contends was sufficient equivocation to make a jury issue as to the attainment of the proper standard of care: Dr. James B. Taylor-from whom plaintiff-appellant had sought a second opinion prior to undergoing the surgery-stated that while he would not say that the doctor did not attain the proper standard of care, he could not say that he did attain the proper standard of care. Dr. Taylor further testified that upon his examination of the plaintiff after surgery he observed a lesion of the rectal wall which he felt "could have been related to the surgery." Dr. Taylor also stated that, in his opinion, the fistula could have been caused by a clamp or suture near the rectal wall. In response to the question: "It is also possible, is it not (for a rectovaginal fistula) to be caused by improper surgical technique?", Dr. Talmadge Bowden replied, "Sure." Dr. Edward Talledo testified that it would be possible for the causing of a rectovaginal fistula in the performance of a vaginal hysterectomy to be some evidence of the lack of exercise of a reasonable degree of proficiency. However, Dr. Talledo stated that here he did not know enough of the "details of the surgery" to give a specific opinion in this case.
Appellee relies upon Howard v. Walker, 242 Ga. 406, 408, 249 S.E.2d 45, 46 (1978), holding that "in those cases where the plaintiff must produce an expert's opinion in order to prevail at trial, when the defendant produces an expert's opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant." Clearly, plaintiff in this case could...
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