Summerour v. Lee

• Decision Date: 29 June 1961
• Docket Number: No. 38924,No. 3,38924,3
• Citation: 121 S.E.2d 80,104 Ga.App. 73
• Parties: Clay SUMMEROUR v. B. H. LEE
• Court: Georgia Court of Appeals

Page 80

121 S.E.2d 80

104 Ga.App. 73

Clay SUMMEROUR v. B. H. LEE.

No. 38924.

Court of Appeals of Georgia, Division No. 3.

June 29, 1961.

Frank B. Stow, Robert E. Andrews, Gainesville, for plaintiff in error.

W. Hays Pickett, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

NICHOLS, Judge.

Dr. B. H. Lee sued Clay Summerour to recover for certain dental work performed for the defendant. Such services were rendered the defendant's daughters. The defendant filed an answer in which he admitted a prima facie case but pleaded a total failure of consideration and sought by way of cross action to recover for the alleged malpractice of the plaintiff. No rulings on the pleadings appear from the record to have been invoked, and on the trial of the case a verdict was directed for the plaintiff in the full amount sued for. The defendant assigns error on such judgment adverse to him. The only evidence introduced as to the skill of Dr. Lee was his own testimony which showed that the work was not negligently done and the testimony of the defendant and two of his daughters to the effect that the work was negligently done and that later some of it had to be done over by another dentist, and there was no evidence introduced that the dental work was not done in accordance with the degree of care and skill, as is ordinarily employed by the profession generally under similar conditions and like surroundings circumstances. Held:

1. The duties and responsibilities of a dentist to his patient are controlled by the same rules of law as control the duties and responsibilities of a physician and surgeon. Bryan v. Grace, 63 Ga.App. 373, 11 S.E.2d 241; Giles v. Dickey, 48 Ga.App. 360, 172 S.E. 760.

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 by the physician, so ought men to be judged by their peers.' And for centuries the courts of this and other countries have, almost without exception, held that expert medical evidence is required to establish negligence respecting the service a physician or surgeon renders his patient. In the Pilgrim's case, supra, the Court of Appeals quoted with approval from Schumacher v. Murray Hospital, 58 Mont. 447, 193 P. 397, 403, where it was held: 'Of course, in the absence of expert testimony in behalf...