Williams v. Lemon

• Decision Date: 04 January 1990
• Docket Number: No. A89A2284,A89A2284
• Parties: WILLIAMS v. LEMON.
• Court: Georgia Court of Appeals

Page 89

390 S.E.2d 89

194 Ga.App. 249

WILLIAMS v. LEMON.

No. A89A2284.

Court of Appeals of Georgia.

Jan. 4, 1990.

Rehearing Denied Jan. 17, 1990.

Susan Williams, pro se.

Herbert E. Kernaghan, Jr., Augusta and Barry H. Bolgla, for appellee.

SOGNIER, Judge.

Rodman Lemon, M.D., filed suit against Susan Williams for malicious prosecution after he was tried and acquitted on a criminal charge of simple battery Williams had brought against him. Williams answered and counterclaimed for the civil torts of battery and intentional infliction of emotional distress. The case was tried before a jury, and at the close of the evidence the trial court granted Lemon's motion for directed verdict as to Williams' counterclaim. The trial court denied Lemon's motion for a directed verdict as to his own claim, whereupon Lemon voluntarily dismissed his petition without prejudice. Williams appeals pro se.

1. The motion to dismiss the appeal is denied. Although the notice of appeal was filed prior to the entry of final judgment in this case, "[t]he rule now is that if the notice is sufficient to advise the opposing party that an appeal is being taken from a specific judgment, and if no prejudice will result to the appellee in allowing the appeal, then the appeal should not be dismissed merely because the notice was premature. In this case, there can be no mistake as to what judgment was being appealed, and it is inconceivable that any prejudice was caused the appellee when the notice was filed [one week after trial of the issue although nearly three months before the judgment was filed.]" Kenerly v. Yancey, 144 Ga.App. 295, 296(1), 241 S.E.2d 28 (1977).

2. Appellant contends the trial court erred by granting appellee's motion for directed verdict on her counterclaim for battery. Appellant contends that during the course of a gynecological examination by appellee, his touching exceeded the contact to which appellant had consented. Appellant testified that appellee had been her gynecologist for five years when the incident occurred. She stated that after the nurse departed from the examination room, appellee talked to her about her retroverted uterus, telling her she needed to do exercises to strengthen it. Appellant testified that when she asked appellee what type of exercises she needed to do, appellee examined her breasts "not the way he normally [did] it," patted her several places while telling her she needed to tone up those areas, then had appellant bend over, at which time appellant stated appellee inserted his fingers into her vagina and asked her to move back and forth. When appellant inquired what he was trying to do, appellee told her he was "trying to get your uterus to flip back ... forward where it should be." Appellant testified that appellee did not wear gloves when he conducted part of the examination, although she did not specify which part. Appellant also testified that after she got up, appellee looked her in the face and approached her "as if ... to kiss me, as I felt." No contact occurred and appellant left.

The only other testimony presented at trial was by appellee, who stated that he was an obstetrician-gynecologist, that he conducted a routine follow-up examination of appellant after the birth of her first child, that nothing unusual occurred during the exam, and on cross-examination stated that he did not remember any of the details outlined above.

"The relation of physician and patient is a consensual one.... However, all of the cases of this and other jurisdictions ... lead inescapably to the conclusion that any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery would amount to a battery. In the interest of one's general right of inviolability of his person, any unlawful touching of that type is a physical injury to the person and is actionable." Mims v. Boland, 110 Ga.App. 477, 481, 482(1a), 138 S.E.2d 902 (1964). However, the court in Mims goes on to note that in relationships of doctor and patient, "as in other situations involving a touching of another's person, consent to the act by the person affected negates the contact as an actionable tort." Id. at 482, 138 S.E.2d 902. Mims then sets forth the standard to regulate conduct in this scope of activity where the patient, once treatment or examination has begun, thereafter withdraws the previously given consent. "To constitute an effective withdrawal of consent as a matter of law after treatment or examination is in progress commensurate to subject medical practitioners to liability for assault and battery if treatment or examination is continued, two distinct things are required: (1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn. (2) When medical treatments or examinations occurring with the patient's consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent to the contact is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient's health or life from a medical viewpoint. The burden of proving each of these essential conditions is upon the plaintiff...." Id. at 483-484, 138 S.E.2d 902.

Appellant is not alleging that appellee committed medical malpractice: she presented no expert evidence to rebut appellee's testimony, as a physician specializing in obstetrics and gynecology, that his examination of her was routine gynecological procedure, and adduced no proof that appellee varied from the requisite standard of care. See generally Savannah Valley, etc., Assn. v. Cheek, 248 Ga. 745, 747, 285 S.E.2d 689 (1982). Although appellee testified it was proper for a physician to wear gloves when touching a patient's orifices, there was no evidence that appellee's non-use of gloves, as testified to by appellant, occurred during his contact with her vagina. Similarly, appellant presented no evidence of standard medical practice regarding the presence of a nurse or other personnel during gynecological examinations. Thus, no question is raised here whether any of appellee's alleged acts in touching appellant's body during the incident in question were outside the scope of a medically proper gynecological examination so as to constitute unauthorized and unprivileged contact exceeding the touching to which appellant had consented....