Overstreet v. Nickelsen

• Decision Date: 13 March 1984
• Docket Number: No. 67291,67291
• Parties: OVERSTREET v. NICKELSEN et al.
• Court: Georgia Court of Appeals

Page 583

317 S.E.2d 583

170 Ga.App. 539

OVERSTREET v. NICKELSEN et al.

No. 67291.

Court of Appeals of Georgia.

March 13, 1984.

Rehearing Denied March 29, 1984.

Certiorari Denied May 2, 1984.

Michael K. Jablonski, Atlanta, for appellant.

Peter K. Kintz, Julia B. Jagger, Alan F. Herman, Atlanta, for appellees.

CARLEY, Judge.

Appellant-plaintiff accidentially cut her finger with a knife while slicing meat at home. She was immediately treated at Doctors Hospital by appellee-Dr. Nickelsen, an osteopath, who diagnosed the cut as a superficial laceration and sutured the wound. The following day, appellant's finger was examined by her family physician, appellee-Dr. Schwartz, who also is an osteopath. Appellant continued to experience pain and was unable to move her wounded finger. She subsequently consulted a medical doctor, who determined that she had not merely suffered a superficial laceration, but had also cut the flexor tendon sheath and the radial digital nerve in her finger. Several operations were performed in an attempt to correct the problem. However, appellant continued to experience pain, and the incapacitated finger rendered her entire left hand useless. Appellant's finger was eventually amputated. Appellant brought the instant medical malpractice suit against appellee-Nickelsen, appellee-Schwartz, and Doctors Hospital. Summary judgment was granted to Doctors Hospital, which was affirmed by this court in Overstreet v. Doctors Hosp., 142 Ga.App. 895, 237 S.E.2d 213 (1977). Following a jury trial as to the two remaining defendants, a verdict was returned for them. Appellant appeals from the denial of her motion for a new trial.

1. Appellant asserts that the trial court erred in giving the jury the following charge on contributory negligence: "I charge you that the defendants contend that the sole proximate cause of the loss was the negligence of the plaintiff herself. If you find from the evidence that the sole proximate cause of the loss was the negligence of the plaintiff, it would be your duty to return a verdict in favor of the defendant." Appellant properly excepted to this charge on the grounds that the appellees had not alleged contributory negligence, and that there was no evidence to support such a charge.

The gravamen of appellant's complaint was that after she accidentally cut her finger, appellees failed properly to diagnosis and treat the finger, and abandoned her. Appellees did not plead nor contend at trial that the injuries sustained as the result of their allegedly negligent diagnosis, treatment and abandonment were proximately caused by appellant's own negligence. Nor do we find any evidence of contributory negligence by appellant.

" 'A material misstatement of the contentions of the parties is prejudicial error ... As a general rule a charge which misstates the contentions of the prevailing party, and tends to confuse the jury as to those contentions and as to the real issues in the case, in such a manner as would permit the prevailing party to recover (or to defend successfully) on a contention he did not make and not authorized by the evidence, necessitates the grant of a new trial. [Cits.]" Mitchell v. Gay, 111 Ga.App. 867, 871(3), 143 S.E.2d 568 (1965). The charge on contributory negligence was harmful error in this case, "for it gave the [appellees] another defense to which they were not entitled." Baldwin v. Walker, 143 Ga.App. 382, 384(3), 238 S.E.2d 695 (1977). See also Rothrock v. Martin, 138 Ga.App. 16(1), 225 S.E.2d 489 (1976); Pace v. Foster, 150 Ga.App. 895, 896(1), 259 S.E.2d 100 (1979); Campion v. McLeod, 108 Ga.App. 261, 132 S.E.2d 848 (1963).

Appellee-Schwartz's argument on appeal that the charge was authorized because appellant was somehow negligent in initially injuring her own finger is totally without merit. The cause of the injury for which appellant sought treatment has absolutely no relevancy to whether she somehow contributed to any of the subsequent injuries sustained as the result of appellees' allegedly negligent treatment, diagnosis or abandonment of her. Compare Robinson v. Campbell, 95 Ga.App. 240, 97 S.E.2d 544 (1957).

2. Appellant contends that the trial court erred in failing to give her requested charge on abandonment. The evidence shows that appellant was treated by appellee-Schwartz the day after she sustained her injury. She subsequently visited appellee-Schwartz for treatment approximately every three days thereafter. However, appellant testified that her last visit to appellee-Schwartz was sixteen days after the date she injured her finger, and after that visit, appellee-Schwartz refused to see her again because there was nothing more he could do for her finger. Appellant alleges that this constituted abandonment by appellee-Schwartz.

"Abandonment of a patient is a tortious act. [Cit.] 'Before a physician can abandon or withdraw from a case without liability therefor, he must either give reasonable notice or provide a competent physician in his place ... "A physician who leaves a patient at a critical stage of the disease, without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of a culpable dereliction of duty." ' [Cit.]" Pritchard v. Neal, 139 Ga.App. 512, 514(4), 229 S.E.2d 18 (1976).

Although there may be a question of fact in the present case as to whether appellee-Schwartz refused to treat appellant after the sixteenth day following her injury, there is absolutely no evidence that appellee-Schwartz "abandoned" appellant at a "critical stage." The only evidence of record concerning the time within which further treatment of appellant was allegedly necessary was testimony to the effect that nerve repair surgery should be performed within three to ten days of the cutting of the nerve. This is obviously well before the alleged abandonment of appellant by appellee-Schwartz. The evidence shows at most a misdiagnosis or mistreatment during a "critical stage," not an abandonment of appellant during such a stage. Likewise, there was absolutely no evidence that appellee-Nickelsen abandoned appellant. "There was no evidence that [appellees] abandoned [appellant] at a critical time when there was a need for immediate treatment, for, although the record does disclose [evidence that appellant] needed surgical treatment, it does not disclose that such surgical treatment was needed then and there or that if [appellant] had sought within a reasonable time thereafter other medical care [she] would have suffered any injury from the alleged abandonment." Carroll v. Griffin, 96 Ga.App. 826, 828, 101 S.E.2d 764 (1958).

There being no evidence that appellee-Schwartz's alleged abandonment occurred at a critical time when there was a need for immediate treatment, nor any evidence of abandonment by appellee-Nickelsen, a charge on abandonment was properly refused. Compare Norton v. Hamilton, 92 Ga.App. 727, 89 S.E.2d 809 (1955); Pritchard v. Neal, supra.

3. During the trial, the deposition of Dr. Whitson, and M.D. testifying for appellant, was read into evidence. During redirect examination, the following question was asked: "Assume that [appellant] after she received the treatment and examination that she received in the emergency room on the day that she cut her finger, that she was ... referred to another physician to follow her up from the point of treatment at the emergency room later. Would a physician being in the position of that follow-up examination be expected to examine the sensitivity in the finger?" The trial court sustained an objection to this question on the ground that, as phrased, it called for an answer which was not predicated upon the standard of care and skill exercised by the medical profession generally.

"To establish professional medical negligence the evidence presented by the patient must show a violation of the degree of care and skill required of a physician. [OCGA § 51-1-27]. Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally. [Cits.] There is a presumption that medical or surgical services were performed in an ordinary skillful manner and the burden is on the plaintiff to show failure to exercise due care and skill. [Cits.] Excepting in a few extreme circumstances, the question of compliance with the required standards must be presented through expert testimony. [Cits.]" Kenney v. Piedmont Hosp., 136 Ga.App. 660, 664, 222 S.E.2d 162 (1975).

While the question asked of Dr. Whitson in this instance failed to use the exact language so often quoted by our courts, we find that the question was sufficiently phrased to establish as its predicate a standard of "due care and diligence" exercised by physicians generally. "[S]uch explicit conclusory pronouncements out of the mouths of those clothed with the mantle of evidentiary expertise are not essential." Lawrence v. Gardner, 154 Ga.App. 722, 724, 270 S.E.2d 9 (1980). See also Wilson v. Kornegay, 108 Ga.App. 318, 320, 132 S.E.2d 791 (1963). Contrary to appellee-Schwartz's assertions, the question did not ask Dr. Whitson to express his own personal opinion concerning the proper procedures. Compare Wagner v. Timms, 158 Ga.App. 538, 539, 281 S.E.2d 295 (1981); Kenney v. Piedmont Hosp., 136 Ga.App., supra at 664, 222 S.E.2d 162. The trial court erred in excluding a response to the question.

4. Appellant asserts that the trial court erred in giving a particular charge to the jury. The contested charge instructed the jury that in a medical malpractice action, the presumption is that the medical services were performed in an ordinary skillful manner, that the burden is on the one receiving the services to show a want of due skill and diligence, and that the proof required to overcome such a presumption of care, skill and diligence must come from an expert witness.

It is undisputed that the charge as given is a correct statement of ...