Kuttner v. Swanson , 59 Ga. App. 818 ( 1939 )

Per Curiam.

Mrs. Max Iiuttner brought suit against Dr. Cosby Swanson for damages alleged to have been sustained by her through the malpractice of the defendant in administering x-ray treatment to her, it being alleged that he was negligent (a) in failing to make a test of plaintiff’s skin in order to determine the quantity of x-ray radiation plaintiff’s skin could safely absorb; (b) in administering three of the x-ray treatments to plaintiff within fifteen days and in failing to wait at least ten days between each of the treatments; (c) in exposing her neck and chest to x-ray treatment for three minutes and fifty seconds instead of two minutes; (d) in burning the skin of her neck, chest, and chin in exposing the same to the x-ray radiation as aforesaid; (e) in failing to use a quantity meter and a quality meter to measure the radiation; (f) in using x-ray treatment for the plaintiff’s condition; (g) (this ground abandoned in court); (h) in leaving at frequent intervals the room occupied by the plaintiff while the treatment was being administered. The defendant denied liability and alleged in his answer that the treatment administered was in the exercise of the care and skill required by law. The jury returned a verdict in favor of the defendant, and the exception here is to the judgment overruling the motion for new trial as amended. Inasmuch as it is the view of the majority of the court that the case should be reversed on certain special grounds of the motion for new trial, it is deemed unnecessary to pass on the general grounds.

The first special ground, designated as 4, complains that the court, after charging that a physician must bring to the exercise of his profession a reasonable degree of care and skill, erred in charging as follows: “This standard of care, this degree of care and skill or diligence is defined in law to be such care and/or skill and/or diligence as, under the law or similar conditions and all the surrounding circumstances is ordinarily employed by the profession generally in this locality.” It is contended (a) that the court erred in defining the exercise of care and skill as that used by the profession generally in the same locality, whereas the true test is the standard of care, skill or diligence used by physicians generally whether in or near Atlanta, the locality in which the treatment in the present case was administered. The Code, § 84-924, provides: “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” This section is also applicable to a physician who specializes in the administering of x-ray treatment. The standard prescribed by the Code section, “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.” McLendon v. Daniel, 37 Ga. App. 524, 528 (141 S. E. 77); Hughes v. Weaver, 39 Ga. App. 597 (148 S. E. 12); Radcliffe v. Maddox, 45 Ga. App. 676, 680 (165 S. E. 841). The physician must not only have the' requisite care and skill, but must exercise these qualifications. Hinkle v. Smith, 12 Ga. App. 496 (77 S. E. 650); Grubb v. Elrod, 25 Ga. App. 108 (102 S. E. 908); McLendon v. Daniel, supra; Richards v. Harpe, 42 Ga. App. 123 (11) (155 S. E. 85); Chapman v. Radcliffe, 44 Ga. App. 649 (162 S. E. 651). The true rule is that the reasonable degree of care and skill prescribed in the Code is not such as is ordinarily employed by the profession in the locality or community. It is a question of fact for the jury to determine what is reasonable care and skill under the circumstances, and in so determining the jury may consider the degree of care and skill practiced by the profession generally in the locality or the community. In Akridge v. Noble, 114 Ga. 949 (41 S. E. 78), cited and relied on by counsel for defendant in error, it was not held that the care and skill required of a physician is that employed by the profession generally in the locality or community. See the comments of the Supreme Court on that case in Pace v. Cochran, 144 Ga. 261 (86 S. E. 934). See also Fincher v. Davis, 27 Ga. App. 494 (108 S. E. 905); McLendon v. Daniel, supra; Gramm v. Boener, 56 Ind. 497, 501; McCracken v. Smathers, 122 N. C. 799 (29 S. E. 354). The charge as given was, therefore, error for the reason assigned.

It is further contended that such portion of the charge was error, in that the court instructed the jury that the defendant was to be absolved if he brought to the exercise of his profession either the care or the skill or the diligence ordinarily employed by the profession, whereas under the law the physician must both possess and exercise a reasonable degree of care and skill. The charge of the court, although it used the expression “and/or” between the words “care” and '“skill,” was calculated to instruct the jury that the rule would be satisfied if the defendant had used either care or skill and not both. If “and” and “or” are interchangeable, as held by the Supreme Court in Davison v. Woolworth Co., 186 Ga. 663 (198 S. E. 738, 118 A. L. R. 1363), the charge was an instruction to the jury that the rule requires of a physician the exercise of either care or skill, and that if the physician brought to bear only a reasonable degree of skill he was not required to bring to bear any degree of care, or that if he brought to bear a reasonable degree of care he was not required to bring to bear any degree of skill. Richards v. Earpe, supra. The charge was error for the reason assigned.

It is further contended that the portion of the charge, together with the sentence immediately preceding, was error for the reason that it purported to charge the test applicable to a physician or surgeon, whereas the court should have charged that, the defendant being a specialist, as shown by the pleadings and the evidence, he should be held to the standard of care and skill employed by specialists generally. The defendant, while a specialist, was nevertheless a physician, and the care and skill to be possessed and exercised by him, whether in treating with medicine or x-ray, is that ordinarily employed by physicians generally under similar conditions and like circumstances. The failure to charge as contended for was not error for the reason assigned.

Ground 5 is similar to ground 4(a) dealt with in the first division of the opinion, and is controlled by the ruling thereon.

Ground 6 complains that the charge of the court that the plaintiff would not be entitled to recover if, by the exercise of ordinary care, she could have avoided the consequences of the defendant’s negligence, if any, was inapplicable to the facts of the case and that such charge was therefore error. There being no evidence whatsoever from which it could be inferred that the plaintiff did,' or omitted to do, anything that could be chargeable to her as negligence contributing to the injury, there was no evidence that she failed to exercise ordinary care, or that she, in the exercise of ordinary care, could have prevented the injury. The court erred in charging the jury that a duty was upon the plaintiff to exercise ordinary care to prevent the consequences of the defendant’s negligence, if any, and that if she failed to do so there could be no recovery.

The court charged the jury as follows: “Now, it is contended by the defendant, gentlemen, that, in addition to the contentions to which I have already directed your attention, any injury that the plaintiff may have received, as already stated, was not due to the negligence of the defendant, but was due to idiosyncrasies in the plaintiff herself, due to the susceptibility or hypersensitiveness of the plaintiff to x-ray exposure, and that this was the direct, proximate, and producing cause of any injuries that she may have received. Now, gentlemen, the plaintiff denies this, and as to what the truth is as to this issue, you will determine. Gentlemen, you consider as to whether or not she was hypersensitive, if she had an idiosyncrasy that in and of itself produced and brought about the condition which she claims to have suffered. And you determine, gentlemen, as to whether or not this was known by the defendant, or in the exercise of ordinary care on his part should have been known by him. The defendant denies this, and the burden as to that, gentlemen, is on the defendant to prove that, the law being that a party asserting a fact has the burden of proving the same to be true.” It is contended by the plaintiff in error in the seventh special ground of her motion for new trial that, in connection with other portions of the charge as to the burden resting on the plaintiff to prove the allegations of her petition, it was confusing and misleading to the jury, and had the effect of instructing them that the only burden on defendant was to prove that the plaintiff was idiosyncratic or hypersensitive, and that the burden was on the plaintiff to prove that she could not, by the exercise of ordinary care, have avoided the consequences of the defendant’s neglignce, if any. This was a correct statement of the law with respect to the contention of the defendant, and was not error for the reason assigned.

Grounds 8 and 13 may be considered together. Ground 8 assigns error on the charge of the court, “The next question, if you find that the defendant was negligent in all, some or any of the particulars charged by the plaintiff in this petition here, why then you would consider and determine as to whether or not such negligence, if it existed, was a direct and proximate and producing cause of injury to the plaintiff. Now, the proximate cause of an event is that cause which, in natural and continuous sequence, unbroken by any now, independent cause, brings about an occurrence, produces an event, and without which the event or occurrence would not happenit being contended that it was inap- • plicable, inasmuch as there was no evidence of an 'intervening cause, and that under the charge the jury would naturally conclude that idiosyncrasy of the plaintiff, if such existed, was a new and independent cause which would destroy the causal relationship of the defendant’s negligence, if any, to the plaintiff’s injury, whereasj as contended by the plaintiff in error, the idiosyncrasy is only a condition and not a cause. Under the evidence the jury was authorized to find that the plaintiff had an idiosyncrasy, and that it was not only a condition but a cause of her injury, inasmuch a's' the three doses of x-ray administered were not of themselves excessive or such as to produce injury in the absence of idiosyncrasy. Accordingly, the charge was applicable under the facts of the case, and not error for any reason assigned. Ground 13 excepts to the same portion of the charge as being error for the reason that the court should have charged that if the idiosyncrasy existed and could have been foreseen by the defendant, the idiosyncrasy would not destroy the causal connection between the defendant’s negligence, if any, and the injury. The instruction here complained of was a correct definition of proximate cause, and was not subject to the objection made, inasmuch as elsewhere in the charge the court instructed the jury as to the duty of the defendant, in the exercise of ordinary care, to anticipate or foresee the idiosyncrasy of the plaintiff.

The ninth special ground assigns error on the following charge of the court: “Now, gentlemen, a party may be impeached, that is, a witness, any witness, may be impeached by disproving the facts testified to by such party or witness, if the party is a witness, a witness may be impeached by proof of contradictory statements previously made by such party or witness as to matters relevant to their testimony and to the case. Where a party or witness, if the party is a witness, shall be successfully contradicted as to a material matter, the credit of such witness as to other matters is entirely for you; but if a witness shall swear wilfully and knowingly falsely, the testimony of such witness should be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence. The credit to be given the testimony of a witness when he is impeached is for the sole determination of you gentlemen.” It is contended that the charge was error (a) for the reason that the evidence did not authorize an inference that the plaintiff had wilfully and knowingly sworn falsely and the instruction was inapplicable, and (b) that it was error in that the court did not qualify the statement, that, if a witness shall swear wilfully and knowingly falsely, the testimony of such witness should be disregarded entirely unless corroborated, etc., by the provision of law that such false swearing, wilfully and knowingly, must be as to a material matter. Under the evidence this charge was not error for either reason assigned. The instruction, properly construed, did not fail to instruct the jury that such testimony must relate to a material matter.

Ground 10 complains that the court erred in permitting counsel for the defendant to read to the jiiry, for the purpose of impeachment, certain portions of the testimony alleged to have been given in plaintiffs deposition before a court commissioner, it being contended that such testimony was inadmissible because there was no proof of her having made the answers shown in the deposition, and that she, in fact, denied making some of the answers. The depositions in another case, which have merely been opened by order of the court, but never introduced in evidence, are not admissible in this case. The plaintiff denied making some of the answers certified to by the commissioner. There must be testimony that the plaintiff testified to the answers contained, or there must be a judgment of the court that she did, before they would be admissible. The commissioner is presumed to do his duty, but the presumption is rebuttable. It is not the intent of the law for a court to have to try out issues involved in other cases. In the case in which the depositions were taken they could have been attacked and might never have been admitted in evidence. The testimony of the plaintiff that she did not make certain answers rebutted the presumption that the commissioner did his duty, and in the absence of confirmation by him it was rendered ineffective. This, of course, is true where the depositions were not introduced in evidence under an adjudication that the plaintiff did actually give the answers recorded.

Ground 11 assigns error on the refusal of the court to permit counsel for the plaintiff to ask an expert witness the following hypothetical question: “Doctor, assuming as a fact that an individual be given from six to eight erythema doses in three treatments within a period of ten or twelve days, would that produce an x-ray burn?” It is contended that the question was a proper one, inasmuch as another expert witness had testified that in his opinion the skin of the plaintiff had received such a quantity of radiation. Such other witness did not, however, testify that in his opinión the defendant had administered such doses, but only that she had received a total of six to eight erythema doses, and that it may have been over a period of years. The defendant denied that he had given more than a total of three-sevenths of an erythema dose, and there was no evidence to the contrary. The ground of objection was good, for the reason that the evidence did not authorize the assumption of the fact involved in the question.

Ground 12 complains that the court erred in its charge by unduly stressing the defendant’s contentions on the issues and facts involved in the trial. In the present case the plaintiff contended that the defendant was guilty of numerous acts of negligence, and, while the court charged in considerable detail1 as to the defendant’s defense in respect thereto, we think that under the facts and issues presented it could not be said that the charge was error for the reason assigned, especially as it appears that the court also fully stated the contentions of the plaintiff.

Ground 14 complains of a portion of the charge. of the court with reference to the alleged idiosyncrasy of the plaintiff, and as to the nature of the duty resting upon the defendant to foresee or detect such condition, it being contended that the court erred in charging that only ordinary care was required of the defendant in that respect, whereas under the law he is bound to exercise reasonable care and skill. The uncontradicted evidence showing that by the' exercise of reasonable care and skill it could not be determined in advance of x-ray treatment whether or not a patient was idiosyncratic or hypersensitive, the charge could not be said to have been harmful to the plaintiff.

Judgment reversed.

Stephens, P. J., and Felton, J., concur. Sutton, J., dissents.