Wagner v. Timms

• Decision Date: 15 May 1981
• Docket Number: Nos. 61520,61521,s. 61520
• Citation: Wagner v. Timms, 281 S.E.2d 295, 158 Ga.App. 538 (Ga. App. 1981)
• Court: Georgia Court of Appeals
• Parties: WAGNER v. TIMMS. TIMMS v. WAGNER.

Page 295

281 S.E.2d 295

158 Ga.App. 538

WAGNER v.TIMMS.

TIMMS v.WAGNER.

Nos. 61520, 61521.

Court of Appeals of Georgia.

May 15, 1981.

Charles R. Ashman, Savannah, for appellant.

William P. Franklin, Jr., Savannah, for appellee.

CARLEY, Judge.

Appellant-plaintiff brought suit for damages based on the alleged negligent treatment rendered by the appellee-defendant doctor in connection with an injury to a finger on appellant's right hand.At the conclusion of all the evidence presented at trial, the trial court directed a verdict in favor of appellee and judgment was entered accordingly.The main appeal is from that judgment.In the cross-appeal, appellee contends the trial court erroneously admitted into evidence the deposition of Dr. Neubiser, a non-resident physician and appellant's only expert witness.

1."To establish professional medical negligence the evidence presented by the patient must show a violation of the degree of care and skill required of a physician.Code Ann. § 84-924.Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally.(Cits.)There is a presumption that medical or surgical services were performed in an ordinary skillful manner and the burden is on the plaintiff to show failure to exercise due care and skill.(Cits.)Excepting in a few extreme circumstances, the question of compliance with the required standards must be presented through expert testimony.(Cits.)"Kenney v. Piedmont Hospital, 136 Ga.App. 660, 664, 222 S.E.2d 162(1975);see alsoSlack v. Moorhead, 152 Ga.App. 68, 71, 262 S.E.2d 186(1979).

Under the foregoing principles, the ultimate issue to be resolved in the main appeal is whether the evidence presented on behalf of appellant was sufficient to establish the medical standard which the jury would be required to utilize in measuring the actions of the appellee doctor that degree of care which, under similar circumstances and conditions, is ordinarily employed by the medical profession generally.As previously noted, the deposition of Dr. Neubiser was the only expert testimony introduced on behalf of appellant.We have carefully reviewed this testimony and find no evidence of the standard of care and skill that would ordinarily be employed by the medical profession generally with respect to a patient exhibiting the physical conditions shown by appellant.Dr. Neubiser's testimony that in his opinion certain procedures should have been utilized and that he thought it advisable for postreduction X-rays to be taken did not establish the standard of the medical profession generally, a breach of which could be construed as negligence.Mayo v. McClung, 83 Ga.App. 548, 556(2a), 64 S.E.2d 330(1951);Kenney v. Piedmont Hospital, supra;Slack v. Moorhead, supra.Also, Dr. Neubiser's testimony that a general surgeon in a "sophisticated medical community" should not attempt to treat an injury like appellant's was of no evidentiary value as it was obviously predicated on the standard of care and skill exercised by the profession locally rather than the profession generally.Fain v. Moore, 155 Ga.App. 209, 270 S.E.2d 375(1980).

Testimony establishing the proper medical standard was required because a jury cannot reasonably be expected to apply negligence principles to medical conduct absent competent evidence of what degree of skill and care the medical profession generally would have exercised under similar circumstances.It would be impermissible for the jury to use any arbitrary standard they may wish to apply.Pilgrim...