Stephen W. Brown Radiology Associates v. Gowers
| Decision Date | 04 February 1981 |
| Docket Number | No. 60388,60388 |
| Citation | 157 Ga.App. 770,278 S.E.2d 653 |
| Parties | STEPHEN W. BROWN RADIOLOGY ASSOCIATES v. GOWERS et al. |
| Court | Georgia Court of Appeals |
Gould B. Hagler, Augusta, for appellant.
Thomas R. Burnside, Jr., James B. Wall, O. Torbitt Ivey, Jr., D. Field Yow, Augusta, for appellees.
In May, 1971, during the course of a routine physical examination, a nodule was discovered on Warren H. Gowers, Sr.'s prostate gland. He was hospitalized for a series of tests and for a biopsy and a diagnosis was made that he had carcinoma of the prostate. He was referred by a local doctor to a partnership of doctors (Doctors Brown, Brown, Crawley & Brizel) known as Stephen W. Brown Radiology Associates. He was then given radical radiation therapy by the partnership with the attending physician being Dr. Herbert E. Brizel, under whose supervision the radiation therapy was administered from June 24, 1971, until September 9, 1971. Dr. Arlie E. Fiveash, who later joined the Brown partnership, also assisted in the patient's care and treatment. This therapy was given at the Augusta Radiation Therapy Center, Inc. Gowers then received additional radiation therapy treatment at Talmadge Hospital. His care and treatment continued until the summer of 1975. During this time he experienced edema of the penis and scrotum but was advised by his doctors that this was a normal reaction although he would have certain discoloration of the skin.
Gowers contends that in late October or November, 1974, his penis and scrotum started extreme swelling which did not thereafter ever subside; that same permanently prevented sexual relations and that he eventually, on January 3, 1975, developed chills and fever, a condition not previously experienced; and he was admitted as a patient to receive antibiotic therapy. He was again hospitalized in May, 1975, for a recurrence of the January condition. He then sought independent medical advice concerning his problems and contacted a number of medical institutions. Gowers contends he learned for the first time that the injuries from which he was suffering were the result of the negligent acts of his radiation therapists.
On August 5, 1976, Gowers sued the referral doctor and Stephen W. Brown Radiology Associates, formerly known as Doctors Brown, Brown, Crawley & Brizel; Augusta Radiation Therapy Center, Inc.; and Varian Associates, Inc., the manufacturer of the radiation equipment. In Count 1 he sought damages against the medical defendants for the personal injuries arising out of the radiation damage to his body because they knew or should have known that this radical radiation therapy was not the treatment of choice for plaintiff's condition and that these defendants departed from that degree of skill and diligence required of them, seeking $1,000,000 (later amended to $1,700,000) damages for the radiation injuries which resulted in extreme physical and emotional distress, lost wages, medical expenses, and virtually unendurable agony.
Count 2 was virtually the same as Count 1, but against Augusta Radiation Therapy Center, Inc., its agents, servants and employees, in administering in a negligent manner the radiation therapy which contributed to his injuries.
Count 3, alleging the same averments, was against the manufacturer, contending it negligently manufactured and designed the linear accelerator which was utilized in the radiation therapy, thereby contributing to his injury.
Stephen W. Brown Radiology Associates answered, in general, denying the claim as well as a plea of the statute of limitation, alleging that the right of action set forth in the claim did not accrue within 2 years next before the commencement of the action. The answer admitted that Gowers experienced several injuries which were complications resulting from the radiation therapy.
The plaintiff contended the consequences of the radiation injuries became apparent in November, 1974. These defendants contend it appeared as early as prior to July, 1972, years before the date of November, 1974, as alleged by the plaintiff.
In a pretrial statement, plaintiff Gowers set forth his contentions against Stephen W. Brown Radiology Associates that they were negligent in prescribing and administering radiation therapy as a result of which he suffered massive radiation injuries. He then amended his complaint, brought in 3 counts, in general as shown above, charging in particular as to Count 1 against Stephen W. Brown Radiology Associates that the radiation therapy was negligently administered in a field too large, improperly targeted, and he received an overdose of radiation as a result thereof. The medical doctors responded, again pleading the statute of limitation and denying the claims of negligence and that the consequences of the radiation injuries became apparent to the plaintiff as early as, or prior to, July, 1972, before the date of November, 1974, as alleged by him.
The case proceeded to trial before a jury. A medical expert from Houston, Texas, testified for plaintiff, by deposition, as to his treatment of the plaintiff after he was first examined by him in October, 1976, as to his findings of radiation injuries to his body, his diagnosis and prognosis, and that in his opinion the injuries sustained were not an accepted risk of radiation treatment; that in his opinion the treatment field as shown by certain X-ray port film was not in keeping with good medical care; the injury to the scrotum and sacral area was a radiation injury; the radiation dosages prescribed and administered were too high; the radiation field extended and encompassed areas that need not have been treated for the disease suffered by the plaintiff, and that the condition from which the plaintiff was presently suffering was not a reasonably anticipated risk of radiation treatment, that is, "the dose or radiation given to the area treated and the time period involved was too high; ... the lower margin of the area treated extended beyond that which should properly be treated for cancer of the prostate." He summarized his opinion testimony by testifying "there were deviations from what I would consider standard or good treatment in terms of the dosages prescribed and given in terms of the field area that was treated and in terms of reaction to the radiation effects during the treatment such as changes in the skin possibly."
A verdict was returned by the jury in favor of the plaintiff, against Dr. Brizel and Stephen W. Brown Radiology Associates only, in the amount of $500,000. Judgment was then entered in favor of the plaintiff against Stephen W. Brown Radiology Associates, formerly known as Doctors Brown, Brown, Crawley & Brizel, in the amount of $500,000.
These defendants filed a motion for judgment notwithstanding the verdict and a motion for new trial. The motion for new trial was thereafter amended. Both of these motions were denied, and these defendants appeal. Held :
1. Defendants' basis for their contention that the trial court erred in denying the motion for judgment notwithstanding the verdict is that the evidence demanded a finding that the two-year statute of limitation had run as to the injuries allegedly sustained by the plaintiff, said evidence having shown that the injuries had been manifested much longer than the two years prior to the filing of the lawsuit. Likewise plaintiff had submitted a written request to charge that the two-year statute did not begin to run until Gowers (plaintiff) learned, or in the exercise of ordinary care could have learned or ascertained, that his injuries resulted from the negligence of defendants, if any. This charge as given was also claimed to be error.
There is no doubt that plaintiff suffered (and expected to suffer) some complication (post-radiation symptoms) from this therapy treatment as is noted in his testimony and medical records for the years 1972, 1973, and 1974 (episodes of diarrhea; ecchymosis; edema of scrotum, penis and prepuce; subcontaneous fibrosis back; radiation proctitis--all side effects).
However, the plaintiff testified that in October, 1974, he realized he had a problem and suspected something was wrong as the result of the recurring conditions from which he was suffering, although he was still advised by the doctors that this was a normal reaction, and that he had been advised from the very beginning of treatment as to possible side effects, and that some of these side effects or radiation problems could be 2 or 3 years in developing.
The relationship between a patient and his physician is a confidential relationship. See Bryson v. Aven, 32 Ga.App. 721, 124 S.E. 553; Saffold v. Scarborough, 91 Ga.App. 628, 86 S.E.2d 649. Thus, a patient has the right to believe what he is told by his medical doctors about his condition. Here, as in the case of Colvin v. Warren, 44 Ga.App. 825(2), 163 S.E. 268, the plaintiff was well aware that he was suffering and would suffer from the radiation treatments, yet it cannot be said that any cause of action he had began immediately upon his suffering the side effects which his doctors had advised him would occur. Here plaintiff was advised that the side effects could last 2 or 3 years or longer and due to his confidential relationship with his physician he did not question his condition until (as believed by the jury by reason of the verdict, based upon the plaintiff's testimony and the instructions given by the court) plaintiff began to suspect he had been negligently burned and began his own investigation of same. The basic law involving the statute of limitation is that the suit should have been brought within 2 years after the plaintiff, in the exercise of ordinary care, discovered the injury to himself by reason of the negligent act or acts of the defendants. See Colvin v. Warren, 44 Ga.App. 825(2), 163 S.E. 268, supra; Brown v. Brown, 209...
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