Rogers v. Black, 44990
| Decision Date | 12 February 1970 |
| Docket Number | No. 3,No. 44990,44990,3 |
| Parties | Rosemary L. ROGERS v. Robert J. BLACK |
| Court | Georgia Court of Appeals |
Harris & Royal, Jackson B. Harris, Clary & Kent, Horace T. Clary, Rome, for appellant.
Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, for appellee.
Syllabus Opinion by the Court
This is a malpractice case arising out of the death of a small male child resulting from what was believed to be an insect sting and because of the alleged improper care by his physician. The death certificate shows death was caused by (a) cerebral edema; (b) acute hemorrhagic glomerulonephritis; and (c) anaphylactic reaction to insect bite. The suit was brought by the mother of the deceased against the medical doctor for the full value of the child's life, alleging that he was negligent in (a) 'improperly prescribing prescriptions for medicines and drugs' not generally used in the medical practice to treat the cause of the child's illness and complaint; (b) failing to properly attend the child after accepting responsibility therefor; (c) prescribing medicines for a disease with which the child was not afflicted; and (d) failing to exercise the standards of a doctor of medicine, particularly a child specialist, in the treatment of said child. The above grounds of negligence are alleged to constitute the proximate cause of the child's death. The case proceeded to trial, resulting in a verdict and judgment in favor of the defendant. Plaintiff filed a motion for new trial which was later amended, heard, and overruled. The appeal is from the judgment denying the motion for new trial as amended.
The evidence in the main, shows that the small child was believed to have been bitten by an insect in the late afternoon on the day before he died. At approximately 11 p.m. he became ill and was taken to the emergency room of the local hospital. He was examined by an intern who found him suffering from an elevated temperature of 102 degrees, a small red or bluish area on his chest where he was believed to have been bitten by an insect, and infected ear drums. In the course of the examination the intern determined that the defendant had been the child's attending physician previously and asked the family if they desired him to call the defendant. In the conversation with the defendant the intern advised him the child was reportedly bitten by some type of insect and stated that he was suffering from infected ears and elevated temperature. After the intern discussed the matter with the defendant over the telephone, he gave the child a shot of phenobarbital to quiet him and a shot of penicillin, as well as two prescriptions for drugs to reduce the fever and keep him quiet and for the infected ear drums, and advised the parents to take the child home and watch him closely. This was done either under the immediate instructions of the defendant or as a result of consultation with the intern; as the evidence is somewhat in conflict as to whether the intern called the doctor for the purpose of obtaining instructions from him as the attending physician, or for purpose of mere consultation with reference to the patient. The prescriptions were not filled because drug stores were closed at that late hour, and the parents of the child were later awakened in the early morning hours around daylight with the child in a dying condition. He was again taken to the hospital but was dead on arrival. There is much testimony in the record based on hypothetical questions as to whether or not there was any malpractice in this case. While the defendant denied that he considered the child his patient by reason of the telephone call from the intern or that he was his primary responsibility, it is noted that he charged the parents for 'call and consultation' from the emergency room at the hospital.
Error is enumerated as to the order and judgment overruling the motion for new trial as amended; the refusal of the court to grant the motion for mistrial made during argument to the jury because of allegedly improper remarks of appellee's counsel; the alleged intimation or expression of opinion on the part of the court in ruling on the alleged and improper remarks, and to the refusal of the court to give a written request to charge, made by appellant's counsel. Held:
1. The right to a thorough and sifting cross-examination shall always belong to every party as to witnessess called against him. Code § 38-1705. Accordingly, the court did not err in refusing to restrict counsel in asking a witness what he was being paid 'to come here and testify against' the defendant. Ga. Power Co. v. Gillespie, 48 Ga.App. 688, 700, 173 S.E. 755; Harris v. Central Railroad, 78 Ga. 525, 534, 3 S.E. 355; Crosby v. State, 90 Ga.App. 63, 65, 82 S.E.2d 38; ...
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Southeast Transport Corp. v. Hogan Livestock Co., Inc.
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