Kent v. Henson ( 1985 )

Carley, Judge.

Appellant-plaintiff Mrs. Bernice Kent visited appellee-defen-dant’s dental office and sought treatment for a toothache. A licensed dentist in appellee’s employ extracted the tooth. However, Mrs. Kent continued to experience pain. She returned to appellee’s office on four separate occasions with complaints of pain in the area where the tooth had been extracted. On each occasion, no X-rays were made and she was prescribed medication for “dry socket.” Some two months after the tooth had been pulled, Mrs. Kent visited an oral surgeon. An X-ray was made which, in the opinion of the surgeon, indicated “a foreign body within the body of the right mandible, and in an extraction wound.” The foreign body was removed by the surgeon and was found in his opinion to be a filling from a tooth. The surgeon concluded that “there was a high probability that [the filling] came from the tooth that was extracted.”

Mrs. Kent and her husband then brought the instant malpractice action against appellee. The complaint alleged numerous acts and omissions as negligence, including the failure to diagnose the foreign body in the tooth socket as the source of Mrs. Kent’s post-extraction pain. As the result of appellee’s alleged malpractice, Mrs. Kent sought damages for pain and suffering. Mr. Kent sought to recover medical expenses. The case was tried before a jury. At the close of the Kents’ evidence, appellee moved for a directed verdict on several grounds. The trial court neither granted nor denied the motion at this time but reserved its ruling. At the close of all of the evidence, appellee again moved for a directed verdict. On this occasion, the trial court granted the motion as to appellee’s “alleged negligence and failure to follow up and take x-rays. . . .” As to the remaining allegations of negligence, however, the trial court again stated that it would “reserve [a] ruling . . . and submit it to the jury.” The jury was then charged and retired to deliberate.

The jury returned a general verdict for appellee. Judgment was then entered on the verdict. The judgment also indicated that the trial court was, at that point, granting appellee’s motion for directed verdict. The Kents’ motion for new trial was denied and they appeal.

1. The Kents first enumerate the grant of directed verdict to ap-pellee on the issue of his failure to make post-extraction X-rays and discover the foreign body in the tooth socket.

“[T]he issue is not whether [a] diagnosis was wrong but whether in making it the doctor used that reasonable degree of care and skill required by [OCGA § 51-1-27], and such as is ordinarily employed by the profession generally. [Cit.] The same degree of care and skill is required in making a diagnosis as is required in treatment. [Cit.] Improper diagnosis is not actionable per se, the issue being whether the physician has used reasonable care and diligence as a professional man. [Cit.]” Hogan v. Almand, 131 Ga. App. 225, 228 (205 SE2d 440) (1974).

“The law of this state requires the courts of this state to presume that a physician exercises his skills in the medical and surgical field in a skillful manner. [Cit.] The burden is on the one who denies it to show a lack of due care, skill, and diligence. [Cits.] In such a case the proof ordinarily required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses ([Cit.]), and this standard should be that exercised by the medical community generally,' not what a particular doctor would do in the circumstances. [Cit.]” Slack v. Moorhead, 152 Ga. App. 68, 71 (262 SE2d 186) (1979).

With specific reference to post-extraction X-rays, the only expert witness presented by the Kents was the surgeon who discovered and removed the foreign body. Our review of the transcript demonstrates no testimony by this expert witness to the effect that the failure to make post-extraction X-rays of a patient exhibiting Mrs. Kent’s symptoms would violate the applicable standard of care employed by dentists generally. In fact, the witness testified: “If someone presented with those symptoms to me at that juncture, no, I would not take an x-ray. . . .” He also responded “yes” when asked if it would be “a judgment call on the doctor’s part” whether to X-ray a patient with Mrs. Kent’s symptoms. “A dentist is not an insurer or warrantor that the exercise of his professional judgment will effect a cure of the patient. Nor is he obliged to bring to the exercise of his profession the utmost skill; if he measures up to the qualifications and applies the reasonable care and skill legally required by the Code, he is not responsible for a mistake of judgment.” Bryan v. Grace, 63 Ga. App. 373, 379 (11 SE2d 241) (1940).

There being no expert testimony sufficient to authorize a finding that the failure to make X-rays was, under the circumstances presented, a deviation from the applicable standard of professional conduct, the trial court properly granted appellee’s motion for a directed verdict as to that issue. Slack v. Moorhead, supra.

2. The Kents enumerate as error the giving of a charge on legal accident.

At the conclusion of the jury charge, counsel for the Kents objected “to the giving of the charge which looks to me to be Defendant’s Request to Charge Number 8 which deals with the doctrine on accident.” We construe this objection as a general assertion that the doctrine of legal accident was not applicable in the case. See Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976).

“The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” (Emphasis in original.) Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983). The “occurrence” at issue in the instant case was the presence of the foreign substance in the site of Mrs. Kent’s extracted tooth. Unlike the circumstances in Chadwick, the defense of accident in the instant case was not predicated upon an assertion of the negligence of someone other than appellee. There was expert evidence that the presence of foreign bodies in a tooth socket was a “common” occurrence. Another expert testified that he had observed such an occurrence in his patients on “[n]umerous occasions. . . . Seven hundred-fifty[,] a thousand, whatever.” And, although the evidence would have authorized a finding that the filling was from Mrs. Kent’s extracted tooth and that the “occurrence” happened during her initial visit to appellee’s dental office, the evidence did not demand such a finding. The Kents’ own expert acknowledged that the filling could have come from one of Mrs. Kent’s other teeth and that it could have entered the site of the extracted tooth at any time between the date that the tooth was pulled and the date that he removed the foreign body. Thus, there was at least some evidence that the “occurrence” at issue was not such that “ ‘ “[s]omebody must have been at fault. . . .” ’ [Cit.]” Chadwick v. Miller, supra at 342. Accordingly, it was not error to charge on accident. “A charge is proper if there is any evidence authorizing it.” Joyce v. City of Dalton, 73 Ga. App. 209 (2) (36 SE2d 104) (1945).

The Kents also urge that the accident charge that was given was an erroneous statement of that legal principle. However, this contention was not raised in the trial court, the sole objection being that the legal principle of accident was not applicable in the case generally. Christiansen u. Robertson, supra. “It is well settled that on appeal the ground of the objection stated below ‘cannot be enlarged ... to include grounds not urged before the trial court.’ [Cits.]” Gurin v. Gen. Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830) (1984). “ ‘[R]eview of the charge enumerated as error is limited . . . strictly to the ground of objection stated on the trial. [Cits.]’ [Cits.]” Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 58 (306 SE2d 54) (1983).

3. The remaining enumerations of error address the trial court’s grant of a directed verdict to appellee after the jury verdict had been returned. “The error, if any, was harmless in light of the jury verdict for [appellee] and this court’s disposition of [the Kents’] enumeration regarding the court’s instructions to the jury. [Cit.]” Gibbs v. First Fed. Savings &c. Assn., 161 Ga. App. 27, 28 (3) (289 SE2d 1) (1982).

Judgment affirmed.

Banke, C. J., Deen, P. J., McMurray, P. J., Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.