Pace v. Cochran
| Decision Date | 12 November 1915 |
| Parties | PACE v. COCHRAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In a suit to recover damages for injuries alleged to have resulted from the negligent "setting" of a broken arm by a physician and surgeon, it was error to overrule a ground of demurrer which sought to have a photograph "of the present condition" of the injured member stricken and removed from the petition.
The amendments to the petition, as set out in the second division of the opinion, are not open to the objection that they set out a new cause of action. They merely amplify the original cause of action as set out in the petition.
Civ Code 1910, § 4427, declares: This lays down a terse rule for determining under what circumstances a physician is liable for injury resulting to a patient.
(a) The charge which was approved in Akridge v. Noble, 114 Ga. 949, 41 S.E. 78, as against certain objections thereto was not identical with the charge complained of in the fourth ground of the amended motion for a new trial; nor should a charge of that character be given where inapplicable.
(b) While expressions used in an opinion by a Justice of the Supreme Court in discussing a case under review may be entirely proper for that purpose, it does not follow as a matter of course that they are apt for use in a charge to a jury in another case. They may not apply to the facts of the second case, or they may be argumentative in character, or otherwise not suited to be given as instructions in a different case, however correct they may have been as used in an opinion.
(c) Some of the charges complained of, in regard to the skill and diligence required of one holding himself out to the public for the practice of surgery, were not unobjectionable in the mode of expression employed, or in being accurately adjusted to the evidence in the case then being tried.
It is reversible error to charge the jury that: "Where witnesses agree as to the material facts testified to by them, slight discrepancies as to collateral, attendant facts afford no sufficient legal reason for discrediting their testimony."
Under the allegations of the petition and the evidence introduced on the trial of the case, the court was authorized to charge the jury the rule as to estimating damages on account of pain and suffering.
On the trial of a case involving malpractice of medicine and surgery, a photograph of the wound, alleged to have been caused by the malpractice, which has been proved to be a correct photograph, is admissible in evidence, as tending to show the details and extent of the injury, in connection with other evidence tending to show that the condition of the injured member at the time when the photograph was taken resulted from the alleged tort.
Error from Superior Court, Cobb County; H. L. Patterson, Judge.
Action by B. B. Cochran, Jr., by B. B. Cochran, his next friend against W. T. Pace. Judgment for plaintiff, and defendant brings error. Reversed.
B. B Cochran, Jr., an infant within the age of 21 years, who sued by B. B. Cochran, his next friend, alleged in his petition substantially as follows: W. T. Pace is a practicing physician and surgeon for compensation at Smyrna and the vicinity thereof, and has damaged petitioner in the sum of $15,000 as hereinafter set out. At 5 o'clock p. m. on December 25, 1911, the infant plaintiff fell off the porch of H. F. Cochran, a distance of approximately three feet, and his right arm was injured by the fall. Immediately after the accident the defendant was sent for, and arrived within an hour's time, and after examination he pronounced the plaintiff's right arm broken in the elbow, and proceeded "to set" the arm, on which he put two boards, one on each side, leaving the arm perfectly straight, with the boards tied tightly around it with a bandage. The defendant then brought the arm around in front of plaintiff's body breaking the board, and said that it would be all right, and for the plaintiff to keep his arm in that condition for a period of 28 days. The defendant administered an anesthetic to the plaintiff during the time he set the arm. In setting the arm he left the little finger bent down and bandaged it in that shape, thereby stopping the circulation in the little finger, "causing infection to set in, and causing the same to rot off." After defendant set the arm he said it had been broken above the elbow instead of at the elbow. It was alleged that defendant negligently set plaintiff's arm and after setting it broke the board, a part of which stuck in the flesh above the elbow, and part of it stuck in the flesh at the root of his thumb, and then bound it so tight that great sores came all over the hand and fingers, and also at the elbow, where the board went in the flesh, finally covering the entire arm, and as a result "the little finger rotted off" and his whole hand became disfigured, and he has no use of his right hand at all, nor his fingers, nor his thumb on that hand, and will not have use of it the remainder of his life; his hand is "perishing away," and is disfigured and useless, and his condition was caused solely by not having the proper attention on the part of the defendant when it was first set, and it was the want of due care, skill, and diligence on the part of the defendant, and in grossly failing to do his duty as a physician and surgeon, which caused the injuries and damages hereinbefore set out, etc.; that the defendant did not exercise any reasonable amount of care and skill "in doctoring" plaintiff's right hand and arm, and his negligence in not looking after petitioner and causing his permanent injury "was criminal negligence, willful and malicious and without cause." Plaintiff is seven years old, and before his injury he was in perfect health physically, and his right arm was in good shape, but as a result of the injury it is forever useless and disfigured for life; before the injury and the treatment by the defendant plaintiff's right hand and arm were normal, but now it is disfigured so that it is horrible and useless. Plaintiff attaches a photograph of the present condition of his hand, caused by the negligence of the defendant, and makes it a part of his petition. The defendant filed his answer, denying all the material allegations of the petition, and averred specially that:
The jury returned a verdict for the plaintiff. A motion for a new trial was overruled, and the defendant excepted.
Chas. H. Griffin, of Marietta, for plaintiff in error.
Clay & Morris, of Marietta, for defendant in error.
HILL, J. (after stating the facts as above).
1. The defendant filed a demurrer to so much of the tenth paragraph of the petition as refers to a photograph "of the present condition" of the plaintiff's hand and arm and moved the court that the same be stricken and the photograph removed from the petition and taken out of the record and excluded from the consideration of the jury. The court overruled the demurrer, and allowed the photograph to remain attached to the...
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