Mull v. Emory University, Inc.
| Decision Date | 11 July 1966 |
| Docket Number | No. 41663,No. 1,41663,1 |
| Citation | 114 Ga.App. 63,150 S.E.2d 276 |
| Parties | Betty Lee MULL v. EMORY UNIVERSITY, INC |
| Court | Georgia Court of Appeals |
Betty Lee Mull, plaintiff, brought a petition against Emory University, Inc., doing business as Crawford W. Long Memorial Hospital, on July 6, 1964, this petition containing approximately 65 paragraphs, was demurred to by the defendant on August 5, 1964, the demurrer containing 51 separate grounds of demurrer, including a general demurrer which was the demurrer numbered 1. On May 21, 1965, the trial judge sustained grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 24, 25, 26, 28, 29, 30, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43 and 44 of the demurrers. The other grounds of demurrer, including the general demurrer, were overruled and the plaintiff in the order was required to rewrite the petition 'and esponge, therefrom, the allegations which are demurred to in the demurrers which are sustained' and was given 30 days in which to amend. The time for amendment was extended and within the extended time, and on July 6, 1965, the plaintiff amended the fifth paragraph of the petition by rewriting the same, although it was not specifically demurrerd to, and paragraph 6 of the petition was amended, although not demurred to; paragraph 8 of the petition was stricken pursuant to demurrer No. 2; paragraph 22 was rewritten to meet the ground 13 of the demurrer moving to strike certain language therefrom; paragraph 47(a) and 47(b) were added; paragraph 51 was redrafted to meet grounds of demurrer No. 24; paragraph 54 was amended; paragraph 65 was amended by adding subparagraphs (n) and (o). On July 13, 1965, and filed July 14, 1965, the trial judge entered the following order: 'It appearing that, under order of this Court dated May 21, 1965, the time for plaintiff to have amended her petition has now expired; and it further appearing that plaintiff has failed to amend and rewrite her petition after an extension of time through July 6, 1965; and it further appearing that plaintiff filed an amendment on July 6, 1965, amending Paragraphs 8, 22, and 51 of her petition which were demurred to by defendant being Paragraphs 2, 13, and 24 of defendant's demurrers which were sustained; and it further appearing that plaintiff has failed to rewrite her petition and expunge therefrom the allegations of Paragraphs numbered 10, 12, 15, 16, 17, 18, 20, 21, 23, 25, 28, 29, 31, 32, 33, 58, 63, 65(b), 65(c), 65(d), 65(e), 65(g), 65(i), 65(j), 65(k), 65(l), of her petition all having been demurred to by defendant's demurrers being numbers 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 18, 19, 20, 21, 22, 25, 26, 28, 29, 30, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43, 44, which were sustained by order dated May 21, 1965, with the direction that plaintiff rewrite her petition and expunge therefrom the aforesaid allegations to which defendant's demurrers were sustained; and it further appearing that plaintiff has stated that she would not rewrite her petition and expunge therefrom the aforesaid allegations;
'Now Therefore, it is Hereby Ordered and adjudged that each and everyone of the aforesaid allegations of plaintiff's petition be hereby stricken from plaintiff's petition and that, before this case be set down for trial, the petition be rewritten as required by the Court's order of May 21, 1965.'
The defendant, by pleading dated July 13, 1965, and filed July 14, 1965, renewed his demurrers Nos. 1, 16, 17, 23, 27, 37 and 45 and filed new demurrers Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 to new paragraphs 47(a) and 47(b), 51 and 65(n). On August 31, 1965, the trial judge entered the following order:
'It appearing that plaintiff having filed an amendment to her original petition, and demurrers having been filed to the original petition as amended;
In order that the rulings here made can be more readily understood, the various paragraphs of the petition and the demurrers sustained to them are set forth below:
Par. 5 (new). 'That in consideration of plaintiff's training and education as a student nurese, plaintiff's parents agreed to pay and did pay to defendant the sum of $375 as plaintiff's tuition; that in further consideration of such training and education, plaintiff agreed to perform and did perform valuable services, work and labor for defendant in said hospital by carrying on nursing duties and performing such tasks as the defendant's agents, servants and employees in charge of said hospital directed her to do; that in consideration of said tuition and services, defendant agreed to furnish plaintiff training in a three (3) year nurse's training educational program and did agree to furnish plaintiff with medical care and services during her period of enrollments as a student nurse.'
Par. 6. 'That in November or December of 1961, the exact date being unknown to plaintiff but well-known to defendant and while plaintiff was enrolled as a student 1965, the trial judge entered the following Memorial Hospital, she became ill and sick at her stomach and experienced pain in her abdomen; that she thereupon consulted one of the resident physicians in the employ of the defendant, whose name is unknown to plaintiff but well-known to the defendant, concerning said pain in her abdomen.'
Par. 7. 'That the aforesaid resident physician advised plaintiff that it was his opinion that she might be suffering from a disease of her liver and he ordered that the plaintiff be administered a certain diagnostic test known as a 'BSP' test and that said test be conducted and administered by and through the medical facilities of the defendant's Crawford W. Long Memorial Hospital.'
Par. 9. 'That said 'BSP' test was and is a test for the purpose of determining and measuring the functional ability of the liver of the human body to eliminate waste substance from the blood.'
Par. 10. 'That said 'BSP' test as administered and performed in the course of proper and accepted medical practice consists of injection into the bloodstream of the patient of a quantity of a liquid chemical compound bearing the trade name of Bromsulphalein and the chemical name of Sulfobromophthalein Sodium; that said chemical is a dye and is usually and customarily injected into a partient's bloodstream through a vein in the antecubital fossa of the patient; that said compound, when it reaches the liver, is removed from the bloodstream of the patient by the liver in the course of its natural functioning and is excreted into the bile; that one-half hour after the injection thereof, a sample of the patient's blood is taken and examined to determine the quantity of said chemical still present within the blood, thus furnishing a means of measuring and determining the efficiency of the liver in removing said chemical.'
Dem. No. 3. 'Defendant demurs to Par. 10 of plaintiff's petition upon the ground that the same constitutes a conclusion of the pleader unsupported by any well-plead facts in plaintiff's petition, insofar as said paragraph attempts to set out what the course of proper and accepted medical practice is concerning the administration of the 'BSP' diagnostic test and as such is incompetent, irrelevant and immaterial, and defendant moves to strike the same.'
Par. 12. 'That if said dye compound is injected into muscle tissue of the human body, it is extremely harmful, dangerous and injurious to the body in that it causes Cellulitus, that is, destruction and inflamation of the cells and tissues of the muscles and causes Thrombophlebitis, that is, destruction, injury and damage to the veins, blood vessels and capillaries of the body and causes severe and permanent damage to the circulatory system; that said dye compound causes the muscles, and other soft tissues of the body, to become inflamed, severely painful, swollen and permanently damaged.'
Dem. No. 4. 'Defendant demurs to Par. 12 of plaintiff's petition in its entirety upon the ground that it constitutes a conclusion of the pleader unsubstantiated by alleged facts and as such is prejudical in its nature and calculated to inflame the court and the jury against the defendant without any allegations of fact to show any causal connection between the condition alleged in Par. 12 and the alleged injuries and damage to the plaintiff, and defendant moves to strike the said paragraph.'
Dem. No. 5. 'Defendant demurs to Par. 12 of plaintiff's petition in its entirety upon the ground that same constitutes a medical conclusion unsupported by any facts well-plead anywhere in plaintiff's petition and upon the further ground that same is an improper allegation and is prejudicial in that there are no allegations of fact to show that the allegations set forth in said paragraph constitute the proximate or contributing cause of any of the injuries alleged to have been sustained by the plaintiff, and defendant moves to strike said paragraph in its entirety.'
Par. 13. 'That in the exercise of the standards of proper and accepted medical practice, said dye compound is injected into the veins of the body by a syringe having a hollow needle.'
Par. 14. 'That in the exercise of the standards of proper and accepted medical practice, the needle of such syrings used in injecting said dye must be completely and carefully inserted into the vein into which said dye is being injected so that the opening of the point of said needle is entirely within the interior diameter of the vein; that said point of the needle must be so positioned as to...
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