Mitchell v. Gilson

• Decision Date: 08 January 1975
• Docket Number: No. 28937,28937
• Citation: Mitchell v. Gilson, 233 Ga. 453, 211 S.E.2d 744 (Ga. 1975)
• Parties: W. E. MITCHELL, Sr., et al. v. Irving GILSON et al.
• Court: Georgia Supreme Court

Page 744

211 S.E.2d 744

233 Ga. 453

W. E. MITCHELL, Sr., et al. v. Irving GILSON et al.

No. 28937.

Supreme Court of Georgia.

Jan. 8, 1975.

T. M. Smith, Jr., Hunter S. Allen, Jr., Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, George H. Connell, Jr., Atlanta, for appellants.

Ross & Finch, Claude R. Ross, Charles E. McCranie, A. Russell Blank, Atlanta, for appellees.

Syllabus Opinion by the Court

JORDAN, Justice.

This case is before us by grant of the writ of certiorari to the Court of Appeals. The question at issue is whether concert of action is required to be shown to constitute defendants as joint tortfeasors.

This suit arose out of the alleged negligence of Doctors Soria, Mitchell, Sr., and Mitchell, Jr., in connection with the use of a central venous pressure catheter inserted in Mr. Gilson's jugular vein in connection with an operation procedure. It was alleged that Dr. Soria inserted an abnormally short catheter in the vein and subsequently did not follow the patient's progress through the removal of the catheter and that the Doctors Mitchell upon discovering the strangely short catheter upon its removal by them, did not inquire of Dr. Soria concerning the length of the catheter but jumped to the conclusion that a portion of the catheter was floating in the patient's blood stream and immediately subjected him to expensive and painful procedures to locate the missing part. It was alleged that the three doctors were joint tortfeasors and that their acts together produced the single injury to the patient of needless subjection to medical procedures and mental distress. For a more detailed statement of the facts, see Gilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421.

The trial court ruled that the doctors were not joint tortfeasors because they were not alleged to have acted in concert, that the action against Dr. Soria and the Doctors Mitchell were two separate negligent actions requiring separate verdicts in individual amounts against the defendants. Based on this conclusion the trial court ruled that Dr. Soria would have the final closing argument to the jury since he presented no evidence.

The trial resulted in a verdict for the defendants. On appeal the Court of Appeals reversed in a full court opinion, the holding being set forth in the following headnote: 'If the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury other...