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MAYO v. MCCLUNG et al.
33409.
Action for damages; from Fulton Superior Court-- Judge Pharr. November 21, 1950.
GARDNER, J.
1. As to a diagnosis by a doctor for discovering the nature of an ailment and for the treatment of the ailment, the general rule of law is that the patient is entitled to a thorough and careful examination and treatment such as the condition of the patient and the attending circumstances will permit. As to the diligence and method of the diagnosis for the discovery of the nature of the ailment and the treatment therefor, the doctors must bring into use such diligence and methods in the diagnosis to discover the nature of the ailment and the treatment therefor as are usually approved and practiced under similar circumstances by members of the profession in good standing. As to what is the proper method of diagnosing a case, and the treatment of the ailment, these are medical questions to be established by physicians as expert witnesses. No layman, juror or court will be permitted to say what is the proper method in diagnosing and treating a case. A layman may testify as to the results.
Mrs. S. A. (Martha) Mayo filed a suit in Fulton Superior Court on July 1, 1943, against Dr. R. H. McClung, Dr. Julius Pierotte and Dr. G. B. Timberlake and the Aetna Casualty and Insurance Company, for damages for alleged malpractice of the defendants as to the plaintiff. It is alleged that the plaintiff was living at the Wynne Apartment Hotel in Atlanta, Fulton County, Georgia; that the plaintiff was, on July 21, 1941, employed by the said apartment hotel as a housekeeper; that on said date of July 21, 1941, she, while in the course of her duties as an employee of the said hotel, while placing a rug on the floor, fell to the floor against her left hip; that she suffered pain in her left hip and left leg by reason of the fall; that after falling she walked one flight of stairs from the place where she was hurt to the lobby of the floor above; that after reaching there Dr. R. H. McClung, one of the defendants, was called to visit and treat the plaintiff; that she called Dr. McClung because his name was furnished her by the Aetna Casualty & Insurance Company as one of its doctors to be called in the event of an accident or injury to any employee of the Wynne Apartment Hotel; that the doctor was called between 3 and 4 p.m. on the date she was injured, and he visited the plaintiff professionally at the hotel; that the plaintiff was lying in bed; that thereafter the other two defendants visited her professionally and in connection with Dr. McClung. The petition is very lengthy, containing ninety-three paragraphs. The remaining paragraphs of the petition, other than as discussed above, go into details as to the injuries which the plaintiff received from the fall and as to the treatment which the doctors administered to her and as to the final result which followed to the plaintiff from the injury which she received, and the alleged malpractice or negligence of the defendants in treating her after the fall. There are thirteen specifications of negligence, but they all finally add up to the contentions that the defendants were guilty of malpractice or negligence in treating her as follows: (1) that the defendants failed to bring to the exercise of their profession reasonable care and skill in diagnosing the plaintiff's case in that they could have determined by the exercise of reasonable care and skill on the first examination by Dr. McClung that she had sustained a fracture of the neck of the femur; (2) that doctor McClung failed to have x-rays made of her hip until two weeks after the plaintiff's hip was fractured by the fall and that the exercise of a reasonable degree of care and skill would have required x-rays made on the first examination; (3) that the other two defendants failed to exercise a reasonable degree of skill and care in their profession in not advising the plaintiff that they had not properly set or reduced the fractured neck of the femur, but told her that the fractured bone was in good condition after they had attempted to set it, and had placed a cast thereon when it was still in a state of non-reduction and dislocation; (4) that Drs. Timberlake and Pierotte in about five or six weeks stated that they had properly set the bone; that this was stated to her at a time when the said two defendants just above mentioned knew or could have known by the exercise of ordinary care and skill that there never could be a union of the said fractured bone by reason of the said diagnosis and that the said defendants were negligent in that they delayed in determining that a fracture existed and were negligent in failing to reduce said fracture before applying said cast; (5) that the defendants failed to exercise ordinary care and skill in their profession in that they knew or should have known by the exercise of ordinary care in diagnosing and treating the plaintiff's injury that she had sustained a fracture of the neck of the left femur and that said injury required prompt and proper setting in order to insure union and healing of the bone at the site of the fracture, the failure of which resulted in disability and impairment and in stating to the plaintiff that they did reduce the fracture and that she was in good condition; (6) that the negligence of the defendants caused a non-union of the bone at the site of the fracture and caused a kind of fibrous or gristle-like union which resulted in continuous pain, discomfort, and impairment of the function of the hip and caused at least 1 1/4 shortening of the left leg; (7) that the defendants failed to notify the plaintiff of her true condition and thus deprived the plaintiff of ail opportunity to take other steps to rectify and prevent the adverse result suffered by the plaintiff; (8) that she was kept in the
dark as to her true condition by the defendants until it was too late for her to do anything to rectify the disability resulting from the alleged negligence of the defendants.
There are certain other allegations of negligence on the part of the Aetna Casualty & Insurance Company, the insurance carrier of the hotel employer of the plaintiff, and who furnished said doctors to the plaintiff as an employee of the said hotel. We will not go into these allegations of negligence as to the insurance carrier, for the insurance carrier was stricken as a party defendant, leaving the case to proceed against the three doctors as defendants. It is further alleged that the negligence of the doctors was the proximate cause of the result of the injuries which the plaintiff received.
The defendants answered, denying all of the material allegations of the plaintiff, including a denial of malpractice or negligence. After such denial, and further answering the petition, in paragraph 8 the defendants alleged that the fall and the injury which the plaintiff received on July 21, 1941 was while she was employed as an employee of the Wynne Realty Company and that the accident occurred in the course of her employment and grew out of and in the course of her employment and that both the plaintiff and her employer were subject to the provisions of the Georgia Workmen's Compensation Act when the plaintiff fell and was injured; that the Aetna Casualty & Insurance Company had issued to the employer a workmen's compensation policy of insurance under the provisions of the Workmen's Compensation Act; that the defendants, the physicians and surgeons were furnished the plaintiff by her employer and insurance carrier pursuant to the provisions of the Workmen's Compensation Act; that all medical and surgical treatment rendered by the defendants to the plaintiff were rendered by the defendants as physicians and surgeons furnished by the said employer and insurance carrier; that for the injury which the plaintiff received a claim was presented and initiated against the employer by the said plaintiff and said insurance carrier for compensation under the Georgia Workmen's Compensation Act; that the claim was based by the plaintiff upon disability growing out of the injury which the plaintiff sustained on July 21, 1941 as a result of the fall; that compensation was awarded and received by the plaintiff under the Georgia Workmen's Compensation Act. The defendants pleaded the foregoing facts in this paragraph in bar of the plaintiff's action in the present case.
The plaintiff filed a demurrer to paragraph 8 of the defendants' answer upon the ground that it contained irrelevant and immaterial matter and conclusions and arguments of the defendants; that the plaintiff contends that certain matters as set forth in paragraph 8 of the defendants' answer do not constitute in any sense an estoppel or bar to the plaintiff's action and that said allegations have no place or relevancy in her suit against the said defendants but are injected into the case by the said defendants for the purpose of confusing the issue and prejudicing the plaintiff's case before the court and jury. The court overruled the demurrer of the plaintiff, which is termed a special demurrer. There were other special demurrers which we do not think it essential here to enumerate. Exceptions pendente lite were duly filed to the judgment overruling the plaintiff's demurrer to the defendants' answer. Thereafter, the defendants, Doctors McClung, Pierotte and Timberlake (the Aetna Casualty & Insurance Company having been stricken on demurrer) filed a petition to the court based on the allegations of paragraph 8 in their answer, praying that the plaintiff be required to file an answer to the defendants' petition. The court granted this order. The plaintiff acknowledged service without consenting to anything in the petition and filed exceptions pendente lite to the order of the court requiring the plaintiff to answer the defendants' petition based on the allegations of paragraph 8 of the defendants' original answer. Thereafter the plaintiff answered denying the defendants' petition.
On March 28, 1950, after evidence was introduced by all parties, the judge of the superior court directed a verdict in favor of the defendants. The plaintiff filed an amended motion for a new trial and on hearing, Judge Pharr, of the Superior Court, overruled the amended motion for a new trial on November 21, 1950. To the judgment overruling this motion error is assigned here and submitted to this court for argument at the January term, 1951. We will not discuss the evidence here but will refer to such material parts of it as we deem necessary in the course of the opinion. Notwithstanding the many issues and assignments of error as shown by the record, we think the questions involved may be grouped generally under four main heads: (1) whether the court erred in directing a verdict; (2) whether the Georgia Workmen's Compensation Act is unconstitutional because it deprives a person of a trial by jury; (3) whether the Workmen's Compensation Act is unconstitutional because of a faulty title or because the body of the act contains matter different from that contained in the title; (4) whether the questions as to the admissibility of certain evidence are meritorious.
1. As to the first question, there are involved the following contentions: (a) was there any evidence of malpractice or negligence on the part of the defendants under the general grounds, and whether, in connection therewith, special grounds 6, 7, 8, and 10, pertaining to the admissibility of certain evidence, are meritorious; (b) whether the undisputed fact that the plaintiff received compensation for her alleged injury under the Workmen's Compensation Act barred her from recovery in the present action after she had been awarded and received the compensation from her employer or insurance carrier as an employee under the Workmen's Compensation Act. The judgment of the court does not reveal whether the court directed the verdict on no proven negligence on the part of the defendants or whether the verdict was directed because the claimant had received compensation under the Workmen's Compensation Act. In the outset, after a careful consideration of the evidence and under all the issues involved, the controlling question is whether the evidence demanded a verdict for the defendants under the general grounds, provided the court did not commit reversible error in ruling on the admissibility of testimony as contained in special grounds 6, 7, 8, and 10. From this viewpoint all other assignments of error and contentions of the plaintiff are eliminated from our decision.
The plaintiff filed her suit against the doctors (the defendants) because of alleged malpractice. Her petition and the evidence in support thereof showed that she fell down while at work in the apartment hotel in which she lived. One of the defendants, Dr. McClung, was called. He diagnosed her injury as a strained muscle, put her to bed, and gave her capsules to relieve her pain. The pain persisted about two weeks. Afterwards she was x-rayed and found to have suffered an impacted fracture of the left leg. She was then placed in a cast which she wore for some time, and which was afterwards removed. The result to the plaintiff was that she suffered an absorption of the neck of the femur, resulting in a fibrous union at the site of the fracture and a definite shortening of the left leg. It is her contention that this unfortunate result was caused by the defendants in improperly diagnosing her condition; in failing to take x-rays, in that the treatment given her by the defendants caused the absorption of the neck of the femur and the fibrous union and the shortening of the leg. The only medical evidence in the record was furnished by Dr. Randolph Smith, a witness for the plaintiff. Dr. Smith testified in part as follows: "As to whether, in the area of the capsule, there is practically no blood supply. There is blood supply but the blood supply in that area is very poor, as compared to the rest of the bony tissues in the body. As to whether that was the reason why I stated that I ruled on the question of callus in an intra-capsule fracture of the neck of the femur: Well, in an intra-capsule fracture the neck of the femur, your callus is not demonstrable, you can't show it, it doesn't show in x-ray; it is practically nil.
"As to whether, in elderly people particularly, you get the sort of result that Mrs. Mayo has in at least 50% of the cases, in that kind of a fracture in the inside of the capsule in the neck of the femur [a hypothetical question]; No, that percentage is high; different individuals get different results; the best figures that anybody has ever been able to produce on fractures in the neck of the femur is a good result in 80% and a bad result in 20%; they vary from there all the way up and down. As to whether the best average that anybody can get is to miss at least 20% of them [a hypothetical question]: That's the best that has ever been done, and that is not because of anything the doctor has failed to do that medical attention requires him to do.
"As to whether, if a patient falls in the basement of a building and receives an impacted fracture of the neck of the femur, such as you say I saw when I examined her, and walks up the steps and was able to turn her foot and the doctor saw her that day and saw her periodically for a period of about two weeks and there is no displacement but an impaction of that fracture, it can be said that it is bad medical practice not to x-ray the patient for that period of time [a hypothetical question] : As to whether, in elderly people, it is usually the practice to treat a number of patients before I do anything about reducing the fracture for a while: Frequently that is more necessary than the fracture; sometimes they have shock and other conditions which require me to wait a period of some time, sometimes a number of days and it may be advisable even to wait for two weeks, under those circumstances; good medical practice sometimes requires that I wait two weeks. The fact that I immediately take the patient and put the patient in a cast or wait, in the judgment of the doctor, until the proper time doesn't have anything to do with whether or not the patient is' going to have an absorption in the neck of the femur; the blood supply in the neck of the femur determines whether or not there will be an absorption. As to whether, in my opinion, I could say that if this lady had been x-rayed and the fracture reduced the day she fell, that she would not have had an absorption: One couldn't say so. In other words, the fact that there was an absorption in the case very probably that there would have been an absorption under any conditions; and I could not attribute the absorption and her present condition to the failure to x-ray on the day or any time during that first two weeks. . . . Waiting to set the fracture after impaction, you don't have to set the fracture, if there is impaction, you let it alone, you don't make any attempt to set it. As to whether frequently I don't even put it in a cast: Well, you should immobilize it either externally or internally. If all these physicians had to do was merely to determine that there was a fracture, that it was impacted, and put it in a cast two weeks after the fracture occurred, if it was still in place, no injury resulted from the delay of two weeks in reducing it from the day of the fracture; if you have a picture and two weeks afterwards you still show impaction, it doesn't make any difference whether you put
it in a cast the previous week or at that time. If there was impaction on August 14th, when she was first examined and when she was put in the cast, absolutely no injury from the failure to put it in a cast resulted in her case."
Counsel for the plaintiff contends that there was lay testimony and medical testimony as to the negligence of the defendants. The record does not bear out this contention of the plaintiff under the law of this State appertaining to the question now before us. See Pilgrim v. Landham, 63 Ga, App. 451 (11 S. E. 2d, 420). See also, Branch v. Anderson, 47 Ga. App. 858 (171 S. E. 771); Bryan v. Grace, 63 Ga. App. 373 (11 S. E. 2d, 241). Thus it will be seen that, under the testimony of the physician, the result was that which obtained in about 20% of such cases as are now under consideration, and medical science does not yet know how to prevent such results. This seems to be a, question purely for expert medical evidence. It is true that a layman may testify as to results, but not whether the treatment in cases such as the one we now have before us was the failure of the doctors to use care and diligence in the treatment and diagnosis. Therefore, it follows that the court did not err in directing the verdict as to this phase of the case as to the general grounds, if the court was correct in its ruling on special grounds 6, 7, 8, and 10. Let us inquire as to special grounds 6, 7, 8, and 10.
2. (a) Special grounds 6 and 7 complain of the sustaining of objection by counsel for the defendants to questions propounded by counsel for the plaintiff to Dr. Smith as to whether in his opinion it was advisable for a surgeon treating a fracture of a hip to wait two weeks before taking an x-ray. We think the objections were correctly sustained. The issue was whether the treatment given the plaintiff by the doctors measured up to the standard as prescribed by the Code, which, "when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally." Bryan v. Grace, 63 Ga. App. 373 (1a) (11 S. E. 2d, 241). It was not a question of what one individual doctor thought was advisable.
(b) Special ground 8 complains because the court sustained an objection made by counsel for the defendants to a question propounded to Doctor Smith as follows: "Now, with reference to the reconstructive operation that you referred to, doctor, I would ask you whether or not in your opinion, from your experience, you can expect to get as satisfactory results from that kind of an operation as you could expect to get from the prompt reduction of a fracture following the occurrence of the injury." This question had no bearing upon any issue from all the evidence in the case, and it was immaterial.
(c) Special ground 10 complains of the refusal of the trial court to allow counsel for the plaintiff to question Dr. Smith, his own witness, as to whether the defendants and Dr. Smith were insured by the same insurance company. The court properly refused counsel for the plaintiff to propound such question. We think this is true for two reasons. First, because the insurance policy itself would be the highest and best evidence of such facts, if admissible at all; and second, that question tended to impeach the plaintiff's own witness when no proper showing of entrapment was made.
2. The court did not err in directing a verdict in favor of the defendants, because the evidence demanded that verdict. The court did not err in its ruling as to the admissibility of evidence as contained in special grounds 6, 7, 8, and 10. Since the evidence demanded a verdict for the defendants under the petition for malpractice and since the court committed no error in its ruling as to the admissibility of evidence as to this feature of the case, such rulings are controlling and it becomes unnecessary to pass upon all other assignments of error in the record.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.
John A. Dunaway, James A. Branch, Thomas B. Branch Jr., for defendants.
G. Seals Aiken, for plaintiff.
DECIDED MARCH 16, 1951.
Saturday May 23 05:29 EDT


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