Robertson v. Emory University Hospital

• Decision Date: 11 February 1980
• Docket Number: No. 77-3219,77-3219
• Citation: 611 F.2d 604
• Parties: Steve Miles ROBERTSON, etc., et al., Plaintiffs-Appellants, v. EMORY UNIVERSITY HOSPITAL, a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 604

611 F.2d 604

Steve Miles ROBERTSON, etc., et al., Plaintiffs-Appellants, v. EMORY UNIVERSITY HOSPITAL, a corporation, et al Defendants-Appellees.

No. 77-3219.

United States Court of Appeals, Fifth Circuit.

Feb. 11, 1980.

R. Ben Hogan, III, Birmingham, Ala., for plaintiffs-appellants.

Hunter S. Allen, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GEE, TJOFLAT and ANDERSON, Circuit Judges.

GEE, Circuit Judge:

Plaintiffs in this medical malpractice action, Steve Robertson, a minor, and his father, Frank Robertson, appeal from a directed verdict for the defendants, Emory University Hospital, Dr. George Tindall, and Dr. C. B. Fresh. After carefully reviewing the record, we affirm.

On March 26, 1974, Steve Robertson received head injuries in a fight. After arriving home around 9:00 p. m., Steve complained of discomfort and asked to see a doctor. At 9:20 p. m., his parents took him to Clayton General Hospital, where he was seen by Dr. Selwyn Hartley, an emergency room physician. Although he did not feel emergency treatment was necessary, Dr. Hartley recommended that Steve see a neurosurgeon because of a skull fracture, revealed by x-rays, and symptoms of drowsiness, confusion, and lessened consciousness. Frank Robertson called Dr. George Tindall, Chief of Neurosurgery at Emory University Hospital (Emory), who told Mr. Robertson to bring Steve to Emory.

At 2:30 a. m. on March 27, shortly after his admission to Emory, Steve was examined by Dr. John Coleman III, a surgical intern. After administering a complete physical examination, Dr. Coleman found Steve oriented, cooperative, and awake but not particularly attentive. Although he noted some irregularity in Steve's speech, Dr. Coleman did not record any weakness on Steve's right side. He concluded that no emergency existed.

Dr. Coleman then telephoned Dr. C. B. Fresh, the neurosurgical resident on duty that night, who arrived at the hospital at about 3:30 a. m. After speaking with the Robertsons, who related the events leading up to Steve's arrival at Emory, Dr. Fresh examined Steve. Dr. Fresh observed that Steve had a "fairly dense weakness" on his right side, as well as irregularity in his speech. He concluded that these abnormalities resulted from a "focal cortical contusion in the front parietal area" of the brain ¹ but did not rule out the possibility of a subdural hematoma. ² Dr. Fresh ordered that Steve be kept under observation and instructed the nurses to perform neurological checks every hour. He also scheduled Steve for a cerebral angiogram ³ later in the day to determine whether Steve in fact had a subdural hematoma. After discussing his findings with Dr. Coleman and noting some discrepancies between his findings and Dr. Coleman's, Dr. Fresh called Dr. Tindall, who approved Dr. Fresh's handling of the case. It appears, however, that Dr. Fresh did not inform Dr. Tindall of the discrepancies between his and Dr. Coleman's findings. Dr. Fresh then went to bed in the call room, having instructed the nurses to call him if they had any questions.

At 7:00 a. m., Drs. Tindall and Fresh and another neurosurgical resident examined Steve and found no significant change in his condition. A nurse's notation, made at 6:30 a. m., similarly observed that the patient had been "essentially the same since admission." Accordingly, Dr. Tindall decided to continue the course of treatment previously prescribed and proceed with the angiogram as scheduled later in the day.

At around 10:00 a. m., when Steve was taken to the x-ray department for his scheduled angiogram, his condition suddenly deteriorated, and he fell into a deep coma. Shortly thereafter Dr. Mark O'Brien, a pediatric neurosurgeon, performed emergency surgery on Steve. The operation revealed two subdural hematomas, one five millimeters thick and the other one centimeter thick, and massive brain swelling, or cerebral edema. Dr. O'Brien removed a small portion of the brain from the temporal lobe to decompress the area.

Steve was subsequently treated to reduce the swelling. Although he showed temporary improvement, it became necessary to perform a second operation several days after the first to remove necrotic brain tissue that extruded through the suture. Steve is presently in a catatonic state that is presumed to be permanent.

Plaintiffs brought suit against Emory University Hospital, Dr. Fresh, and Dr. Tindall alleging the following acts of negligence: (1) Dr. Fresh's failure to take an angiogram after his initial examination; (2) his failure to inform Dr. Tindall of the discrepancies between his and Dr. Coleman's findings; (3) Dr. Tindall's failure to supervise Steve's treatment during his first night in the hospital; (4) the failure of the nursing staff to carry out Dr. Fresh's orders; (5) Dr. Fresh's failure to supervise the nurses; and (6) Dr. Fresh's failure to perform emergency surgery after his initial examination of Steve. At the close of the evidence the district court granted defendants' motion for a directed verdict. In his memorandum order and opinion the court held that plaintiffs had failed to establish defendants' negligence or show that Steve's condition was proximately caused by the defendants.

In reviewing the district court's directed verdict for defendants, we must consider all of the evidence in the light most favorable to the plaintiffs. Unless there is "substantial evidence" opposed to the motions such that reasonable persons might reach different conclusions, the district court's verdict must be affirmed. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc). To determine whether sufficient evidence was adduced at trial to overturn a directed verdict, ⁴ we must first ascertain what evidence the plaintiffs were required to present under Georgia malpractice law.

Georgia Code Ann. § 84-924 requires a physician to exercise "a reasonable degree of care and skill." This standard has been elaborated by the Georgia courts. In a malpractice action a doctor is held to a standard of care that, "under similar conditions and like circumstances, is ordinarily employed by the medical profession generally." Kenney v. Piedmont Hospital, 136 Ga.App. 660, 222 S.E.2d 162, 167 (1975). Cf. Murphy v. Little, 112 Ga.App. 517, 145 S.E.2d 760, 763-64 (1965) (standard of care not limited to locality or community). Such standard is ordinarily established through the testimony of expert witnesses. Shea v. Phillips, 213 Ga. 269, 98 S.E.2d 552, 555 (1957); Kenney, supra at 167. Testimony showing a mere difference in views or individual practices among doctors, however, is insufficient to support a malpractice action where it is shown that each view or practice is acceptable and customary. Hayes v. Brown, 108 Ga.App. 360, 133 S.E.2d 102, 106-07 (1963). See also Mayo v. McClung, 83 Ga.App. 548, 64 S.E.2d 330, 335 (1951) ("It was not a question of what one individual doctor thought was advisable."). Additionally, there is a presumption that medical services were performed in an ordinary, skillful manner, and the burden is on the plaintiff to show a failure to exercise due care. Shea, supra at 554; Kenney, supra at 167. See also Watson v. United States, 346 F.2d 52, 53 (5th Cir. 1965), Cert. denied, 382 U.S. 976, 86 S.Ct. 544, 15 L.Ed.2d 467 (1966). To prevail, plaintiff must show not only that the defendant was negligent but also that plaintiff's injury was proximately caused by the defendant's lack of care or skill. Parrott v. Chatham County Hospital Authority, 145 Ga.App. 113, 243 S.E.2d 269, 270-71 (1978).

Turning to the testimony presented at trial, we find the record lacking in evidence sufficient to prevent a directed verdict for defendants. Plaintiffs' principal contention on appeal is that defendants violated the standards "ordinarily employed by the profession generally" by failing to take an angiogram or perform emergency surgery on a person in Steve Robertson's condition when he was first examined by Dr. Fresh. ⁵

Other than Drs. Fresh and Tindall, ⁶ plaintiffs' only expert witness was Dr. Keith Langford, ⁷ Associate Professor of Neurosurgery at the University of Alabama. Although Dr. Langford is an advocate of early surgical exploration of subdural hematomas, he repeatedly refused to criticize the defendants' handling of Steve Robertson "without personal knowledge of the events." In fact, Dr. Langford testified that he was not "prepared to say that normal practice is different" from the course of treatment followed by Drs. Tindall and Fresh. Dr. Langford's testimony thus supported Defendants' position, not plaintiffs'.

Similarly, none of the other doctors who testified indicated that standard practice was other than that carried out by defendants. Defendants' expert, Dr. Robert McLaurin, Chairman of the Division of Neurosurgery at the University of Cincinnati, testified that it was "the normal process" to continue observation, not to perform emergency angiography or emergency surgery, even assuming Steve had deteriorated to the extent represented by the discrepancies between Dr. Coleman's findings and Dr. Fresh's. ⁸ He concluded that Steve had "received very excellent care, and certainly in my judgment it would be entirely in keeping with standards of care in my own community and in the neurosurgical community in this country." Dr. Tindall testified that it was "normal practice to stay on top of the evaluation observation" of a patient with a serious head injury, adding that Dr. Fresh's management of the patient during the early morning hours was "appropriate." There was some expert testimony...