Word v. Henderson, 40747

• Decision Date: 20 November 1964
• Docket Number: No. 40747,Nos. 1,3,2,40747,s. 1
• Citation: 110 Ga.App. 780,140 S.E.2d 92
• Parties: Essie B. WORD v. Charles T. HENDERSON et al
• Court: Georgia Court of Appeals

Page 92

140 S.E.2d 92

110 Ga.App. 780

Essie B. WORD v. Charles T. HENDERSON et al.

No. 40747.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 20, 1964.

Rehearing Denied Dec. 8, 1964.

Syllabus by the Court

The record in this case discloses the existence of genuine issues of material facts which must be resolved by a jury as to the defendant hospital but not as to the defendant physician. The trial court erred in the grant of a summary judgment as to the hospital.

Essie Beatrice Word filed suit against Dr. Charles T. Henderson and the Hospital Authority of the City of Marietta, Ga., to recover damages for the alleged negligent treatment and care of her minor son which resulted in his death. The petition alleged that the child was approximately 3 years 4 1/2 months old when he entered the defendant hospital on September 19, 1961, for the defendant Henderson to perform a tonsillectomy and circumcision on said child; that about 9 a. m. at the conclusion of the operation the child was placed in the recovery room until about 10 a. m., at which time he was returned to his room violently crying and suffering from post-operative shock. At about 10:30 a. m. plaintiff requested that a nurse give the child something to stop the crying; that the child began to breathe through his teeth and continued to cry, and that about 10:55 a. m. the nurse gave the child a shot in excess of two cubic centimeters of Demerol which was an abnormal and dangerous amount for a child of that age and size and became a lethal dose for said child because of his post-operative shock condition; that sometime after 11 a. m. the child's face turned a deathly ashen color and he died about 11:55 a. m.; that the defendant Henderson left the hospital immediately after the operation and was not available until 12 p. m. on the date of the operation.

The hospital was allegedly negligent in giving said child a lethal dose of Demerol, in failing to give the proper dose of Demerol, in failing to give proper superivision, and in failing to notify the defendant, henderson. The defendant Henderson was allegedly negligent in failing to examine the child after the operation, failing to observe that he was suffering from post- operative shock, failing to give the hospital authorities instructions for the child's care, in failing to make himself available and in failing to prescribe the proper treatment to prevent the death of the child.

Both defendants filed motions for summary judgment accompanied by the supporting affidavits of Dr. Henderson; Dr. Earl B. Benson, the attending anesthetist; Clara Jenkins, the attending nurse; other hospital personnel and officials of the State Crime Laboratory. Dr. Henderson's affidavit stated that he performed the operation upon the plaintiff's decedent; that the child remained in the recovery room for approximately one hour after the operation; that he examined the child in the recovery room and observed that the child was in excellent condition and suffered no complications; that the child did not suffer from post-operative shock and otherwise would not have been released from the recovery room; that during the remainder of the morning he was either in the hospital or in his office across the street from the hospital and available for consultation or treatment of the child but received no calls relating to the child; and that upon being summoned to the hospital at noon, he went immediately to the child's bedside and found him dead. Dr. Benson and Nurse Jenkins stated in their affidavits that the child was not suffering from post-operative shock.

The defendant hospital by the affidavits produced in support of its motion for summary judgment sought to show that the plaintiff's decedent received better than average care and attention from the various hospital personnel concerned in the matter and that the child was not given an improper dose of Demerol.

The plaintiff in response to the defendants' motions filed an affidavit by Dr. Grady Coker of Canton, Georgia, and depositions of the plaintiff, Dr. Henderson Nurse Jenkins, and others.

The trial court granted the defendants' motions for summary judgment and the plaintiff excepted.

Harold S. Willingham, Hicks & Howard, G. Gobert Howard, Marietta, for plaintiff in error.

Edwards, Bentley, Awtrey & Parker, Scott S. Edwards, Jr., A. Sidney Parker, Reed, Ingram & Flournoy, Lawrence B. Custer, Marietta, for defendant in error.

EBERHARDT, Judge.

1. The plaintiff charged in her petition that the defendant hospital was negligent in giving her child a lethal dose of Demerol and in not giving the child a proper dose of Demerol. Clara Jenkins, the nurse who administered the alleged improper dosage of Demerol, stated in her affidavit filed in behalf of the defendant hospital's motion for summary judgment that she gave the decedent 25 milligrams of demerol in accordance with the physician's instructions. The uncontradicted evidence disclosed that this was a proper dosage for a child of the decedent's age. In a deposition taken by the plaintiff, Nurse Jenkins stated that the shot contained 1/2 cubic centimeter of Demerol solution. Plaintiff testified, however, that she observed the shot being administered to her son and that the fluid column of the shot given to him was at the 2 cubic centimeter position. Under the evidence a finding was authorized that 2 cubic centimeters of the Demerol solution would contain at least 100 milligrams of Demerol, an admittedly dangerous dosage for a child of the decedent's age.

Clearly, there was a conflict in the record as to the volume of Demerol solution administered to the plaintiff's child, and in view of Dr. Coker's testimony that 100 milligrams of Demerol could produce death, it cannot be said that the conflict was not material. The question of whether the defendant hospital actually gave an improper dosage of Demerol to the decedent, whether the same was negligence, and if so, whether such negligence proximately caused the child's death were likewise questions to be resolved by the jury. The fact that no Demerol was found in the tissues of the decedent, which were subjected to chemical analyses by officials of the State Crime Laboratory, was strong evidence that the child had not been given an overdose of Demerol in view of the testimony of Dr. Matthews, who stated that in his opinion if the child had been given an overdose of Demerol, deposits would have been found upon analysis. It was for the jury to weigh and consider this evidence, however.

Counsel for the defendant hospital contend that even if the evidence authorized the finding that the plaintiff's decedent was given an improper dosage of Demerol, there was no evidence that it proximately caused the death. This contention is without merit, since under the testimony of Dr. Coker the jury would be authorized to find that the overdose of Demerol proximately caused or contributed to the death of the plaintiff's child.

2. It was incumbent upon the plaintiff, in order to withstand Dr. Henderson's motion for summary judgment, to produce evidence by other physicians from which a jury could find the want of due skill or diligence on the part of this defendant. Hollis v. St Joseph Infirmary, Inc., 108 Ga.App. 309, 132 S.E.2d 841. This is true for the reason that, in an action against a physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skillful manner, and the burden is on the plaintiff to show a want of due care, skill or diligence. Shea v. Phillips, 213 Ga. 269, 271, 98 S.E.2d 552. 'The proper standard of measurement for a jury to apply to the acts of a doctor to determine whether he exercised a reasonable degree of care and skill must be established by testimony of physicians, for it is a medical question.' Hayes v. Brown, 108 Ga.App. 360(1b), 133 S.E.2d 102; Mayo v. McClung, 83 Ga.App. 548, 556(2), 64 S.E.2d 330; Code § 84-924.

The plaintiff assumed this burden by producing the affidavit of Dr. Grady Coker in which the affiant concluded upon the basis of hypotheses supported by evidence in the record that the plaintiff's child was suffering from post-operative shock at 10 a. m. on the morning of the operation (the time when the child was last seen by the defendant physician); that tests should have been made to determine whether the condition was one of post-operative shock and that the child should have been closely watched and checked to determine the course of the condition; that the child's condition was serious enough to warrant the care of a doctor at the time; that post-operative shock, if allowed to continue, could produce death, and that a 100 milligram dose of Demerol is grossly excessive for a child of such age and one which might produce death.

Let us examine the evidence to see whether there be any proof of negligence on the doctor's part that would give rise to a cause of action. Dr. Henderson performed the operation. There is no contention and no evidence of any negligence on his part in connection with its performance. The only contention is the assertion that he failed to make tests or to give further attention to the child after he saw it at about 10 a. m., the basis being that there were circumstances existing at that time which indicated that the child might have been suffering from post-operative shock which he should have observed and which should have led him to the making of further tests and the giving of further attention.

If there was proof of this it is to be found only in the affidavit of Dr. Grady Coker, in which he asserted: 'In reaching the conclusions hereinafter stated and deposed in this affidavit, I am assuming the following facts to be true: 4. (a) That Nathan Stephen Word was a colored male child of the age of 3 years four and onehalf half months old [sic] when he entered Kennestone Hospital, Marietta, Georgia, on September 18, 1961. I am assuming that...