Lord v. Claxton , 62 Ga. App. 526 ( 1940 )

The petition as amended set forth a cause of action. The trial court erred in sustaining the defendant's demurrers and in dismissing the action.

DECIDED APRIL 18, 1940. Mrs. Bertha B. Lord brought suit against Dr. E. B. Claxton, alleging, that during the latter part of June, 1937, she entered the Claxton Hospital for the purpose of having an operation because of a tumor, which operation was successfully performed by the defendant; that she should have been released from the hospital in a reasonable length of time, but that in a short time after she came from under the influence of ether, which had been administered to her for said operation, she was given dope or some other powerful drug and was put in a semiconscious condition, and remained in the hospital more than four months; that during that time dope or some other drug was administered to her at intervals in order to keep her in an unconscious condition, and that the defendant permitted the dope and other drugs to be administered to her, or he himself administered them to her, wilfully and maliciously, in conjunction with her sister and brother-in-law, Dr. and Mrs. J. E. New, to injure and damage plaintiff; that she was injured and damaged thereby in the sum sued for; that the administering of dope or other drugs to her, to keep her in an unconscious condition and from possession of all her mental faculties, was only a scheme and device entered into by the defendant and Dr. and Mrs. New for the purpose of injuring and damaging and humiliating her, to keep her from the full possession of her mental faculties, so that she would not be able to get well and continue to look after her business, and to allow Dr. and Mrs. New time to carry out their scheme and plan of obtaining certain personal property of plaintiff and to take over and manage her estate; that defendant did not give her the proper medical treatment after said operation, but instead conspired with Dr. and Mrs. New to keep her from having possession of her mental faculties until they got possession of her property, both real and personal; that the defendant, through the conspiracy with the said Dr. and Mrs. New, gained a hospital and doctor's bill of about $1500, which was all unnecessary and unjust; that the defendant and Dr. New conspired for pecuniary purposes, and went around to plaintiff's friends and demanded her diamond, and the defendant demanded her will from a friend, and reported that plaintiff was crazy and would not have any mind as long as she lived; that these reports and acts on the part of the defendant were for the purpose and intent of aiding and abetting Dr. and Mrs. New in the scheme to get in possession, custody, and control of whatever personal property plaintiff owned at the time, and to frustrate, if possible, any mode of alienation of her property by will or other means, in order that Dr. and Mrs. New might reap the sole benefits of the personal property and all real estate owned by the plaintiff at the time; that the defendant well knew that the plaintiff was not crazy or mentally unsound, and that she was well able to attend to her own business, but he, in conspiracy with Dr. and Mrs. New, continued for months to keep plaintiff doped and unfit to attend to her business, and thereby caused her to incur heavy expense such as hospital bills, nurses' bills, doctor's bill, medical bills, lawyer's fees, and numerous other expenses, and deprived the plaintiff of being up and able to look after her own affairs, such as farming interest and other matters, which she could have attended to herself instead of having to pay others to do this work; that she suffered great mental pain and anguish by being retained in the hospital and continually doped and not permitted to go to her home; that defendant, when friends of plaintiff mentioned taking her home and having her nursed and cared for in her own home, made the statement, "She will certainly not be moved out of my hospital;" that this statement was made when the defendant well knew at the time that the plaintiff was able to go to her home if he had ceased administering to her dope or some other powerful drug which kept her in a semiconscious condition and which greatly weakened and emaciated her; that even after the plaintiff was up and around the hospital, with her mind perfectly cleared up from the dope, the defendant then refused to release her from the hospital, and forced her to employ the services of a lawyer before she could effect her release from the hospital; that she was not permitted the pleasure of having her friends visit her, for the reason that the defendant and Dr. and Mrs. New knew that some one might detect their conspiracy and would come to plaintiff's aid and assistance, which was finally done, but defendant, after promising plaintiff not to let Dr. and Mrs. New visit plaintiff, did let them in and aided and abetted them in carrying out their schemes and plans as above set forth. Judgment in the sum of $25,000 was prayed for.

After the filing of demurrers, general and special, by the defendant, the plaintiff amended her petition by alleging, that Dr. J. E. New, the husband of Mrs. J. E. New, is a practicing physician and surgeon, and is closely affiliated with the defendant in both business and medical affairs; that the agreed object and purpose of Dr. and Mrs. New, in co-operation and understanding with the defendant, was to keep plaintiff confined to the Claxton Hospital, irrespective of her physical condition, until she finally succumbed to the malpractice upon her, or her mentality and physical system became so wholly wrecked that she would be compelled to spend the rest of her life in a hospital for the mentally sick; that Dr. and Mrs. New had in view the fact that the plaintiff had no heir at law, and that they were the next of kind entitled to her estate, and the defendant was motivated by the excessive sums that he would collect from the plaintiff through illegal hospitalization and excessive nurse hire by and through continuous and long confinement; that the defendant has injured and damaged the plaintiff in connection with Dr. and Mrs. New, the damages being both general and special; that the acts and conduct of the defendant have caused her great mental and physical pain, and mortification to her natural and just feelings, that will mark her every thought in life, on account of the misrepresentation of the defendant as to her sanity and the brutal treatment advised and condoned through the nurses and servants of the hospital; that at the time of her entrance into the hospital of the defendant she was in a normal mental condition and was suffering only from a tumor, the removal of which she was advised by the defendant and Dr. Barton would not require other than an operation and a hospitalization beyond a period of twelve days from her entry; that at the time of her entry both of her doctors knew that Dr. New and Mrs. New would not speak to plaintiff; that, on account of her mortal fear of both of them, it was understood with the defendant and Dr. J. J. Barton that they would not be permitted to visit her; that the doctors correctly diagnosed her case and she underwent a perfect operation on June 25, 1937, and she immediately came out from under the influence of the anesthetic and was entirely conscious and rapidly gaining her strength to such an extent that she had planned to return to her home on Tuesday, July 6, which was the full period of her twelve days promised her in the hospital; that on or about July 5, when she intended to go to her home on the following day, and while she felt fully strong enough to do so, realizing that she was getting well as rapidly as nature could bring back her strength naturally lost in the operation, the defendant, through consultation and conspiracy with Dr. and Mrs. New, just before she was ready to go to her own home, forcibly required her to take an injection into her arm, which completely doped and dumbfounded her faculties, and began an involuntary imprisonment of plaintiff, unnecessary, inexcusable, and unlawful, for a period of about four and a half months; that immediately after the injection Dr. and Mrs. New thereafter continued to visit her room, employ some of the nurses, and give directions to the hospital authorities, and in co-operation with them to continue her imprisonment and keep her unconscious from the effects of drugs; that a reasonable surgical bill for her operation would have been $150 for the period that she should have remained in the hospital; that a reasonable nurse hire would have been $60, and that her entire hospital expenses and nurse hire should not have exceeded a total of $210; that Claxton and Dr. and Mrs. New and defendant's nurses, especially Mrs. N. S. Carswell and Miss Mamie Dalton, took complete charge of plaintiff's bank account, and confiscated and wasted it, without plaintiff's knowledge or consent and for no value received that was rendered unto her, in the following checks drawn upon her account (setting out a list of checks amounting to $2824.45); that the entire amounts withdrawn from plaintiff's account were illegal, unauthorized, and were not in payment of any hospitalization or medical treatment by her due to the defendant, who desired plaintiff's confinement for the purposes aforesaid, and which acts were approved and condoned by Dr. and Mrs. New for the purpose of unlawfully imposing upon plaintiff, all of which amounts specifically itemized plaintiff prays judgment for, with a legitimate credit of $210 on same, leaving a balance of said special damages in the amount of $2614.45; that in addition to the moneys illegally withdrawn, from which the defendant benefited in co-operation with Dr. and Mrs. New through the illegal confinement of plaintiff, special damages were sustained by the plaintiff (listing numerous items of expense amounting to $695.49); that the enumerated special damages specifically set out aggregate the sum of $3520.41, which represents an unlawful confiscation of plaintiff's property; that the defendant did not exercise in his profession, in relation to the plaintiff, that degree of care and skill required of a physician; and that he, at the instance of the said Dr. and Mrs. New, was guilty of malpractice in his profession; and that plaintiff's damages have flowed from a want of due care, skill, and diligence, both generally and specially, for which the defendant and the said Dr. and Mrs. New are jointly liable.

The exception is to a judgment sustaining demurrers to the amendment, and to the petition as amended, on the following grounds: (a) that no cause of action is set forth in the petition as amended; (b) that the petition is duplicitous, in that it sets forth two distinct causes of action in one count, viz., a cause of action based on transactions arising from a conspiracy and a cause of action based on damages arising from alleged malpractice of the defendant; (c) that the allegations of the amendment to the effect that the defendant, in conspiracy with Dr. and Mrs. New, required the plaintiff to take an injection into her arm, etc., beginning an involuntary imprisonment of her in the hospital, etc., were argumentative, representing only conclusions of the pleader, with no allegations of facts authorizing or justifying such conclusions. 1. The allegations of the petition as amended clearly set forth a cause of action. It is shown that the defendant and two others, Dr. and Mrs. New, brother-in-law and sister, respectively, of the plaintiff, entered into a conspiracy to commit a tort upon her for named purposes; and numerous acts in pursuance of such conspiracy are set forth in startling revelation. It is alleged that the plaintiff entered the hospital of the defendant for the sole purpose of having him perform an operation for a tumor, the removal of which she had been advised by the defendant would not require more than an operation and hospitalization beyond a period of twelve days; that the operation was perfectly performed on June 25, 1937, and that she immediately came from under the influence of the anesthetic and was entirely conscious and rapidly gaining her strength to such an extent that she planned to return to her home on July 6, 1937, but that on July 5, 1937, the defendant, through consultation and conspiracy with the others above named, forcibly required her to take an injection into her arm, which completely doped and dumbfounded her faculties and began an involuntarily imprisonment of her, unnecessary, inexcusable, and unlawful, for a period of four and a half months; that after the first injection, and during the incapacity thus imposed upon her, dope or some other drug was administered to her at intervals to keep her in an unconscious condition; that this was permitted by the defendant and he himself administered the dope or drug, wilfully and maliciously, in conjunction with the other named conspirators, to injure and damage her thereby; and that this drug was given her to keep her unconscious and to deprive her of her mental faculties, and was only a scheme and device entered into by said persons for the purpose of injuring, damaging, and humiliating her, to prevent her recovery, and to allow Dr. and Mrs. New to carry out their scheme and plan of obtaining certain of her personal property and to take over and manage her estate; that the defendant did not give her proper medical treatment after the operation, but instead conspired with the other named persons to postpone acquisition of the plaintiff's mental faculties until they acquired her property, both real and personal; that the defendant, through such conspiracy, gained a hospital and doctor's bill of $1500, which was unnecessary and unjust; that during her incapacity and imprisonment the two other named conspirators were permitted to enter her hospital room, against her previous instructions to the defendant, and committed upon her, in numerous particulars, certain wrongs, interfering in her private affairs and confiscating her bank account, and through directions given to the nurses and hospital authorities continuing her imprisonment, with the result that, whereas she should have sustained only a reasonable expense of $210 for the operation and hospitalization for the period in which she should rightfully have been kept there, she was by the acts of the defendant and the other two named persons deprived of $2824.45, and in addition she was caused to sustain other unnecessary items of expense in the sum of $695.49; that her special damages aggregate $3520.41, representing an unlawful confiscation of her property; that the defendant and Dr. New conspired for pecuniary purposes, and went to plaintiff's friends and demanded her diamond, and the defendant falsely reported that the plaintiff was permanently crazy, all of these acts on his part being with the purpose and intent of aiding and abetting Dr. and Mrs. New in the scheme to obtain possession, custody, and control of her personal property and to frustrate any mode of alienation of her property; that the defendant, in conspiracy with them, continued for months to keep her doped and unfit to attend to her own business, and caused her to incur hospital bills, nurses' bills, doctor's bill, medical bills, lawyer's fees and other expenses; that the defendant well knew that she was able to go to her home if he ceased to administer the dope or other powerful drug which kept her in a semiconscious condition and greatly weakened and emaciated her; that she suffered great mental pain and anguish because of such unjust detention and being doped; that even when her mind had cleared the defendant refused to release her and she was forced to employ counsel to effect her release; that the defendant did not exercise towards her the degree of care and skill required of a physician, and, at the instance of Dr. and Mrs. New, was guilty of malpractice, and her damages, general and special, have flowed from a want of due care, skill, and diligence, for all of which the defendant and Dr. and Mrs. New are jointly liable. Judgment was prayed in the sum of $25,000 against the defendant.

Under the allegations of the petition as amended, the duty of the defendant towards the plaintiff was twofold: firstly, as a surgeon and physician employed to remove a tumor from her person; and secondly, as the operator of a private hospital in which she became his patient. "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." Code, § 84-924. The standard prescribed by the Code, "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); Grubbs 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). "A private hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient's condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require." Emory University v. Shadburn,47 Ga. App. 643 (171 S.E. 192); Stansfield v. Gardner,56 Ga. App. 634 (193 S.E. 375); Tate v. McCall Hospital,57 Ga. App. 824, 827 (196 S.E. 906). Of course the duties do not end until the relation of patient and physician and patient and hospital has ceased. The petition as amended alleges that the defendant failed to exercise the care and skill required of him as a physician, and also shows the failure of the defendant, as operator of the hospital, to fulfill his duty of protecting the plaintiff as a patient. But it goes farther, and illustrates the lack of care and skill and proper attention by allegations of wilful and wanton misconduct which is the antithesis of care and skill. The defendant was employed to perform an operation. It was successful. Instead of ministering to her in such a way as to facilitate her recovery of good health, it is alleged that she was forced by the defendant, through consultation and conspiracy with the other two named conspirators, to submit to an injection of dope or other powerful drug, and that this rendered her incapable for several months of resisting the unlawful practices named. "Where a surgeon enters into an agreement with a person merely to perform a certain operation, and the surgeon in violation of the contract goes farther, without an emergency, and performs another operation which is unauthorized by the agreement, or by an emergency necessitating the additional operation, and injury results to the patient, the surgeon can not relieve himself from liability by showing skill and care in the other operation."Perry v. Hodgson, 168 Ga. 678 (148 S.E. 659). Conceivably it might sometimes become necessary for a physician or surgeon to administer a drug to a patient; but it is here alleged that the injection was only in consequence of a detailed conspiracy to incapacitate rather than to help her. No matter how expertly or skilfully the dope or drug may have been administered, if such act was unnecessary and was resorted to only for the purpose of retarding or frustrating her recovery, it obviously would not measure up to the requirements of the law that a physician must exercise towards a patient a reasonable degree of care and skill in an authorized act, and that a hospital must exercise reasonable care in supervising and protecting a patient. The petition as amended charges against the defendant, not only the failure to exercise reasonable care and skill for her welfare, but wilful and wanton misconduct, and the ground of the demurrer that no cause of action was set forth is clearly without merit.

2. Nor is the petition as amended subject to dismissal on the ground that it is duplicitous, in that, as averred, it sets forth two distinct causes of action, one based on a conspiracy and one based on the alleged malpractice of the defendant. "Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.' Woodruff v.Hughes, 2 Ga. App. 361 (58 S.E. 551); Wall v. SeaboardAir-Line Railway, 18 Ga. App. 457 (2) (89 S.E. 533). It was further said, in Woodruff v. Hughes, supra: ``Conceding, then, that an averment that the acts alleged were done in pursuance of a conspiracy does not change the nature of the action or add anything to its legal effect, the allegation and proof of conspiracy is important to the action only because it will enable the plaintiff to recover his damages against such of the defendants as may be shown to be guilty of the tort, even should he fail to prove a conspiracy or concerted design; and it may be pleaded and proved as aggravating the wrong of which the plaintiff complains and to enable him to recover against all the defendants as joint tort-feasors. If the conspiracy can be proved, the party wronged may look beyond the actual participants committing the injury and join with them as defendants those who conspired to accomplish it.' While the allegation of conspiracy may well serve the purpose dealt with in the above-quoted language, it does not of itself constitute a cause of action."Liberty Mutual Insurance Co. v. Lipscomb, 56 Ga. App. 15,19 (192 S.E. 56). The present action is solely in tort, the allegations of conspiracy being material only to enable the plaintiff to recover damages against such of the alleged conspirators as may be shown to have participated in the unlawful design.

3. The allegations of the petition that the defendant, in conspiracy with Dr. and Mrs. New, required the plaintiff to take an injection into her arm, etc., beginning an involuntary imprisonment of her in the hospital, etc., were not subject to the objection in the special demurrer that they "were argumentative, representing only conclusions of the pleader, with no allegations of fact authorizing or justifying such conclusions." We think that the allegations set forth traversible facts, both as to the injection of the dope and as to her involuntary detention in the hospital, sufficiently to inform the defendant of what he is called on to defend against and to enable him to prepare his defense.

4. From what is said above it follows that the trial court erred in sustaining the defendant's demurrers to the petition as amended, and in dismissing the action.

Judgment reversed. Stephens, P. J., and Felton, J., concur.