Carreker v. Harper , 196 Ga. App. 658 ( 1990 )

Deen, Presiding Judge.

Plaintiff, Carol Carreker, appeals from the jury verdict and judgment entered thereon in favor of defendant Dr. James E. Harper in this medical malpractice case.

1. Plaintiff alleges that defendant was negligent both in failing to diagnose accurately her condition (defendant diagnosed plaintiff as suffering from viral gastroenteritis when in fact she had appendicitis) and in failing to provide adequate and reasonable follow-up care and instructions. Defendant contends, however, that plaintiff failed to disclose fully all information relevant to her condition at the time he examined her and to exercise ordinary care for her own safety by seeking additional medical care when her condition did not improve and subsequently worsened. It is these actions that, according to defendant, authorized the charges on contributory and comparative negligence. We agree.

The charge of comparative negligence regarding plaintiff’s nondisclosure of certain symptoms and medical history was correct. Hayes v. Hoffman, 164 Ga. App. 236 (296 SE2d 216) (1982). It was for the jury to determine whether the plaintiff exercised ordinary care for her own protection, and the record provides adequate facts which support the jury’s finding of comparative negligence, which was the proximate cause of the damages complained of.

Additionally, the lower court’s comparative negligence charge was correct as to the post-diagnosis negligence. The appellant asserts that the evidence does not warrant a charge on comparative negligence. However, in McMullen v. Vaughan, 138 Ga. App. 718 (227 SE2d 440) (1976), where the plaintiff’s post-operative negligence was ultimately determined to be the cause of his injury, this court held that the doctrine of comparative negligence applies “[w]here the evidence raises an issue of whether negligence by the plaintiff joins with the negligence of the defendant in proximately causing the injury. ...” Id. at 720. In the case at bar, there was sufficient evidence for the jury to determine that the plaintiff’s post-diagnosis conduct barred her recovery. On appellate review, this court must construe the evidence in a manner most favorable to affirming the jury’s finding; thus the trial court’s decision should be affirmed.

2. Plaintiff next contends that the trial court improperly restricted her cross-examination of the defendant-expert because it refused to allow plaintiff to cross-examine defendant with the use of a medical treatise with which defendant was unfamiliar. “While ... an expert witness may be cross-examined by reference to a standard treatise in the field of the expert’s special knowledge to test his credibility, ... an expert cannot be cross-examined upon a treatise which has not been proved to be a standard treatise on the subject.” State Highway Dept. v. Willis, 106 Ga. App. 821, 824 (128 SE2d 351) (1962). Plaintiff contends on appeal that the testimony of her expert demonstrated that the treatise sought to be used was authoritative and thus she was entitled to use the treatise to cross-examine the defendant even if he himself was not familiar with the text. Pretermitting the issue of whether the treatise sought to be used here had been shown to be a standard, reliable treatise, under the facts of this case we find no grounds for reversal. The record shows that following the trial court’s ruling that the plaintiff must first lay a foundation for use of the treatise, counsel responded “Okay, your honor.” Counsel then asked defendant two questions concerning his knowledge of the book, and finding he was unfamiliar with the text, abandoned the line of questioning entirely, without invoking a further ruling from the trial court. “ ‘No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.’ [Cit.]” Boatright v. State, 192 Ga. App. 112, 116 (5) (385 SE2d 298) (1989). See also State Highway Dept. v. Willis, supra at (2).

3. We have considered plaintiff’s remaining enumerations of error and find them to be without merit. Specifically, the trial court did not err in refusing to allow plaintiff to cross-examine defendant by using charts of other patients he had treated. Likewise, the trial court did not err in refusing to allow plaintiff to cross-examine the defendant or his expert about the absence at trial of another witness previously identified by defendant as a potential expert witness in his behalf.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Birdsong and Sognier, JJ., concur. Banke, P. J., Pope, Beasley and Cooper, JJ., dissent.