Pritchard v. Neal, 52397

• Decision Date: 09 September 1976
• Docket Number: No. 1,No. 52397,52397,1
• Citation: 139 Ga.App. 512,229 S.E.2d 18
• Parties: Kathy PRITCHARD v. J. C. NEAL et al
• Court: Georgia Court of Appeals

Page 18

229 S.E.2d 18

139 Ga.App. 512

Kathy PRITCHARD v. J. C. NEAL et al.

No. 52397.

Court of Appeals of Georgia, Division No. 1.

Sept. 9, 1976.

William E. Elsey, Cartersville, Thomas W. Bennett, Macon, for appellant.

Jones, Cork, Miller & Benton, E. Bruce Benton, Macon, for appellees.

STOLZ, Judge.

The plaintiff, a diabetic, was advised by the defendant doctors, who were partners in Macon, Georgia, that another pregnancy would be dangerous. Therefore, on the defendants' recommendation a tubal ligation was allegedly performed on March 29, 1972. In the latter months of 1972, the plaintiff became pregnant. All other facts are disputed.

The plaintiff claims that the defendants fraudulently misrepresented material facts concerning the success of tubal ligations and thus did not receive her informed consent. She also claimed that the defendants were negligent in ligating only one of her two fallopian tubes. According to the plaintiff, the defendants abandoned her after she became pregnant, refusing to abort her when they knew that the pregnancy was dangerous to her life, and they failed to refer her to a substitute physician. She claimed that the fetus died and decomposed in the womb and had to be surgically removed. All of the plaintiff's contentions were supported by affidavits and testimony from depositions.

The defendants deny all of the above allegations of the plaintiff. They claim that she was properly advised that the tubal ligation would not be one hundred percent effective and that both tubes were indeed cut. The defendants claim that their refusal to perform an abortion was due to the plaintiff's refusal to follow their medical directions and cooperate with them until after the time during which an abortion could safely be done. They contend that eventually the plaintiff self-aborted. All of the defendants' contentions were supported by affidavits and testimony from depositions.

The plaintiff appeals from the trial court's grant of the defendants' motion for summary judgment.

1. The Civil Practice Act, § 56(c), Code Ann. § 81A-156(c) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759), provides for summary judgment when the evidence shows 'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . .' 'In motions for summary judgment, the evidence must be construed most favorably toward the party opposing the grant of same; and most unfavorably toward the party applying for the motion for summary judgment. All inferences and conclusions which arise from the evidence must be likewise construed.' Tipton v. Harden, 128 Ga.App. 517(4), 197 S.E.2d 746.

In the instant case, the facts are heatedly contested, with both sides supporting their contentions with affidavits and depositions. It could not be said 'that there is no genuine issue as to any material fact,' as required by the Civil Practice Act for summary judgment.

2. When the disputed facts are construed in the plaintiff's favor, one can find sufficient legal grounds for her major allegations. If, in fact, the plaintiff's consent to the performance of the tubal ligation was obtained as a result of fraudulent misrepresentations, then a tort was indeed committed upon her. As a general rule, there is consent to a tortious act only 'if that consent is free and not obtained by fraud . . .' Code § 105-1803.

3. On the issue of negligent malpractice due to the defendants' failure to cut the right fallopian tube, one could not find for the defendants as a matter of law when the facts are construed in the plaintiff's favor. In contrast to Dickerson...