Shea v. Phillips
| Decision Date | 08 April 1957 |
| Docket Number | No. 19627,19627 |
| Citation | 213 Ga. 269,98 S.E.2d 552 |
| Parties | P. C. SHEA, Jr. v. Jessie H. PHILLIPS, Administratrix. |
| Court | Georgia Supreme Court |
James A. Branch, Thomas B. Branch, Jr., Atlanta, for plaintiff in error.
Northcutt & Edwards, Edwin R. Johnston, R. J. Edwards, W. S. Northcutt, Atlanta, for defendant in error.
Cumming, Nixon & Eve, Augusta, Anderson, Anderson, Walker & Reichert, Macon, Franklin, Eberhardt, Parham & Coleman, Valdosta, John A. Dunaway, Dunaway & Embry, Atlanta, Nightingale & Liles, B. N. Nightingale, Brunswick, Alexander, Vann & Lilly, Thomasville, for parties at interest, not parties to record.
Syllabus Opinion by the Court
Hugh D. Phillips filed a suit for damages against Dr. P. C. Shea, Jr., alleging malpractice. Before it was tried, Phillips died, and his administratrix was substituted in his stead as the party plaintiff. On the trial, the court granted a nonsuit, and the Court of Appeals, with Chief Judge Felton dissenting, reversed that judgment. Phillips v. Shea, 94 Ga.App. 796, 96 S.E.2d 390. The allegations of the petition, as four times amended, are fully set out in the opinion filed by that court, and they can be seen by reference thereto. Briefly, they show that on April 22, 1953, the defendant, as a physician and surgeon, performed two operations on the original plaintiff. During the first operation, about 6 inches of a plastic catheter was broken off in one of his arteries. The second operation, which immediately followed the first one, was an unsuccessful effort to locate and remove the portion of the catheter adrift in the patient's arterial system. It is alleged that the original plaintiff was injured and damaged by the defendant in consequence of the following negligent acts: (1) in manipulating the catheter so roughly while it was in his body that a portion thereof was broken off; (2) in failing to promptly examine the popliteal artery, and particularly the portion thereof near the popliteal bifurcation where the broken-off catheter was likely to be lodged; (3) in failing before inserting the catheter to test it for strength to withstand the force and pressure to which it was subjected by the defendant while in the patient's body; (4) in failing, following the breaking of the catheter, to call to his assistance another surgeon competent to assist in the location of the catheter; (5) in failing to exhaust methods of diagnosis for presence of the broken portion of the catheter at or near the femoral bifurcation which is a narrow point of the arterial system that could be explored with much less danger than the portions of his abdomen that were actually opened and probed; (6) in forcing the catheter into his artery with a degree of force that it had not been tested to withstand; (7) in failing to skillfully discharge the duty he owed his patient in performing the operations; (8) in failing to exercise reasonable care and skill in the performance of the operations; (9) in failing to exercise reasonable care and skill in inserting the catheter into his arterial system; (10) in failing to exercise the degree of skill and learning ordinarily possessed and exercised, under similar circumstances, by the members of his profession; (11) in failing on the two occasions mentioned in the petition to exercise that degree of care and skill required by his profession as a surgeon; and (12) in forcing the catheter against hard and sharp obstructions in his artery.
The Court of Appeals by its majority decision held that the trial judge erred in granting a nonsuit, since the plaintiff's evidence was sufficient to authorize the jury to find that the defendant was negligent: (1) in failing to locate and remove the catheter segment which lodged at the bifurcation of the popliteal artery in the patient's right leg, and which stopped the flow of blood from his knee down to his foot, necessitating the amputation of his leg because of gangrene; (2) in the rough manner in which he manipulated the catheter in the patient's arteries; and (3) in failing to summon another surgeon to assist him before beginning the second operation. To review these rulings, the writ of certiorari was granted. Held:
1. If the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit may be granted. Code, § 110-310; Hobbs v. Houston, 190 Ga. 505(1), 9 S.E.2d 749; Lewis v. Bowen, 208 Ga. 671, 68 S.E.2d 900.
2. In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill, and diligence. Georgia Northern Ry. Co. v. Ingram, 114 Ga. 639, 640, 40 S.E. 708; Akridge v. Noble, 114 Ga. 949, 958, 41 S.E. 78; Fincher v. Davis, 27 Ga.App. 494(2), 108 S.E. 905; 21 R.C.L. 406; Taylor, Med.Jur. 356. And in such a case the proof ordinarily required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses. Pilgrim v. Landham, 63 Ga.App. 451(4), 11 S.E.2d 420; Howell v. Jackson, 65 Ga.App. 422, 16 S.E.2d 45; 70 C.J.S. Physicians and Surgeons § 62, pp. 1006-1008; 41 Am.Jur. 238, § 128. More than twenty-three hundred years ago Aristotle, in his work on Politics, wrote: 'As the physician ought to be judged...
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...respecting the service a physician or a surgeon renders his [or her] patient.Rodriguez, 574 P.2d at 485 (quoting Shea v. Phillips, 213 Ga. 269, 98 S.E.2d 552, 555 (1957)) (internal quotations omitted). Although the pharmacologist was qualified to testify regarding the effect of Streptomycin......
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