Meeks v. Coan
| Decision Date | 10 March 1983 |
| Docket Number | No. 65274,65274 |
| Citation | 165 Ga.App. 731,302 S.E.2d 418 |
| Parties | MEEKS, et al. v. COAN, et al. |
| Court | Georgia Court of Appeals |
Adele P. Grubbs, James C. Strayhorn, Marietta, for appellants.
Lawrie E. Demorest, Robert L. Pennington, Fordham E. Huffman, Daniel S. Reinhardt, George W. Hart, Atlanta, for appellees.
Calvin T. and Sandra Meeks sued Drs. Coan, Wildstein, and Kumin for medical malpractice and loss of consortium. The trial court granted summary judgment in favor of each of the physicians and the Meeks appeal.
1. Appellants contend that the trial court erred in granting summary judgment in favor of Drs. Coan and Wildstein because there was expert opinion testimony that both physicians failed to use due care, skill, and diligence in treating Mr. Meeks. Appellants' chief contentions of negligence are that the doctors failed to surgically remove all of a graft placed in Mr. Meeks' arm and that they abandoned him. Mr. Meeks, who suffers from diabetes and kidney failure, underwent numerous and successive operations beginning in 1979 for the creation of access sites on his arms for purposes of receiving dialysis. The surgical procedure entails the formation of an arteriovenous ("A-V") fistula, which is a connection between an artery and a vein. The connection may be either made directly or by use of a graft. It is characteristic of A-V fistulas to eventually fail or to become infected, particularly with diabetic patients such as Mr. Meeks.
Dr. Kumin, a nephrologist treating Mr. Meeks since 1979, referred him to Dr. Coan and his associate, Dr. Wildstein, both surgeons, and they formed an A-V fistula on Mr. Meeks' left forearm in January 1980 using a synthetic graft. Due to infection in the original site, subsequent A-V fistulas were formed, and the first graft was removed in surgery performed by Dr. Coan in April 1980. The site remained open, infected and draining. In June 1980, Mr. Meeks returned to Dr. Henry, a surgeon who had treated him in 1979. In August 1980, Dr. Henry removed a portion of the first graft placed by Drs. Coan and Wildstein that had remained in Mr. Meeks' arm, and the infection was resolved in approximately two weeks.
Drs. Coan and Wildstein based their motions for summary judgment on expert opinion testimony in their affidavits stating that at all times both had possessed and exercised that degree of skill and care customarily exercised in the medical community generally under same or similar circumstances. Appellants offered in opposition the testimony of Dr. Henry, who deposed that failure to have eventually removed the graft would have been improper treatment and a deviation from the standard of skill and care as are generally exercised by the profession. However, Dr. Henry also testified that at the time Mr. Meeks came to him in June 1980, there was nothing to show that Drs. Coan and Wildstein had not exercised reasonable care.
The question, then, is whether Drs. Coan and Wildstein, both of whom treated Mr. Meeks, intended to return and remove the piece of graft that was left in his arm, since according to Dr. Henry, failure to do so would have been negligence, as the arm would never have healed. A critical excerpt of Dr. Coan's operation report for "removal of arterial venous graft" is as follows: "The arterial and the venous anastomoses are divided with a small cuff of graft left in situ on the brachial artery and then with blunt dissection the graft is mobilized from the tunnel and avulsed and removed in its entirety." (Emphasis supplied.) The report gives rise to the inference that Drs. Coan and Wildstein did not intend to go back later and remove the remaining portion of graft. On summary judgment, this bare inference of negligence must be construed favorably to the appellants, as the non-moving parties. Pritchard v. Neal, 139 Ga.App. 512, 513(1), 229 S.E.2d 18 (1976). Dr. Henry's testimony, while equivocal on the question of negligence, did provide a foundation on which a jury could have concluded that Drs. Coan and Wildstein negligently intended not to remove the remaining portion of graft. Id. at 514(3), 229 S.E.2d 18; Lawrence v. Gardner, 154 Ga.App. 722, 724, 270 S.E.2d 9 (1980).
While it is argued that it was intended that a portion of the graft be left intact, as evidenced by the inference in the report to the "graft left in situ," this does not disturb the inference that Drs. Coan and Wildstein did not intend to return and remove the remaining portion.
Drs. Coan and Wildstein cite Parrott v. Chatham County Hosp. Auth., 145 Ga.App. 113, 243 S.E.2d 269 (1978) in pointing out evidence that Mr. Meeks suffered no permanent injury and experienced no pain or discomfort with this particular graft that differed from that resulting from numerous other grafts performed on his arms for dialysis access sites. However, unlike Parrott, there was evidence in the instant case to show that had the entire graft been removed, healing would have resulted and that "his pain and discomfort would have been less or different from that actually suffered." Parrott, supra at 114, 243 S.E.2d 269....
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