Akridge v. Noble , 114 Ga. 949 ( 1902 )

Cobb, J.

This was an action against a surgeon for malpractice. The plaintiff alleged that the defendant had performed a surgical operation upon her person, which required an opening to be made in the abdomen, and that it was necessary in the performance of the operation to insert into her body through the opening certain sponges or pads for the purpose of absorbing the blood and pus in the cavity, which sponges or pads should remain in the body while the operation was being performed but should be removed therefrom before tbe opening was closed; that the defendant negligently and carelessly failed to remove one of these sponges and closed the opening, allowing the sponge to remain in her body; that it remained there for more-than a year, and finally passed out of her body through the rectum, having passed into, the rectum through a fistula which the sponge had caused; that she suffered great pain during the time that the sponge was in her body and at the time it was being passed therefrom; that on account of the negligence of the defendant, above referred to, she is now and will always be a complete physical wreck. The defendant answered, denying all charges of negligence. The trial resulted in a verdict for the defendant. The case is here upon a bill of exceptions assigning error upon a judgment overruling a motion for a new trial filed by the plaintiff.

1. The motion for a new trial contains several assignments of error upon portions of the charge of the judge. The charges complained of were, in substance, that if the jury believed the pad or sponge was in fact left in the plaintiff’s body, then they “ would determine whether or not it was so left by reason of the want of due care and skill, or the exercise of due care and skill, on the part of the defendant;” that the defendant owed the plaintiff the duty of exercising “reasonable care and skill” in performing the operation, including in that expression, not only the opening of the body and the removal of the affected parts, but also the use and handling of the sponges 'or pads. The plaintiff contends that these charges were erroneous, for the reason that they compelled the jury to return a verdict in favor of the defendant, unless they found under the evidence that the defendant was lacking in both care and skill, when it was never contended that the defendant was lacking in professional skill, but it was only contended that he was liable on account of his failure to carefully perform his duty on the particular occasion in question; that the removal of the pads or sponges from the body of a patient is not a part of the operation and does not require any surgical skill; the failure to remove the sponge not being due to any want of skill on the part of the defendant but due, as plaintiff contends, simply to his carelessness and negligence in not removing the same from the body. The plaintiff contended that the issue was not one of skill on the part of the defendant in the performance of the operation, but negligence in not removing tbe pad or sponge after the operation. The code declares that a person professing to practice surgery must bring to the exercise of his profession a reasonable degree of care and skill, and that any injury resulting from a want of such care and skill will be a tort for which a recovery may be had. Civil Code, § 3831. Surgeons “arebound to exercise reasonable and ordinary care, skill, and diligence, but that is the extent of their liability. The burden of proof is upon the plaintiff in actions for malpractice to show that there was a want of due care, skill, and diligence.” “ The reasonable and ordinary care, skill, and diligence which the law requires of physicians and surgeons are such as those in the same general line of practice, in the same general locality, ordinarily have and exercise in like cases.” “ Surgeons should, however, keep up with the latest advance in medical science, and use the latest and most improved methods and appliances,'having regard to the general practice of the profession in the locality where they practice; and it is a question for the jury to decide from all the circumstances of the case whether the . . surgeon has done his duty in that respect.” Taylor’s Med. Jur. (Clark Bell) 356 — 7, and cases cited. See also Thomas, Neg. 1107 et seq.; Smith v. Overby, 30 Ga. 241, 245; Georgia Northern Ry. Co. v. Ingram, 114 Ga. 639. The plaintiff’s contention isthatthe charge of the judge, properly construed, places upon her the burden of showing, not only that the defendant was lacking in care, but that he was lacking in skill. Even if this be a proper construction to be placed upon the charge, was this an erroneous instruction ? The surgeon belongs to one of the learned professions, and he is required to bring to the exercise of his profession not only due care but also due skill. Skill, in the sense in which it is here used, includes not only the knowledge or information which the surgeon has in reference to the propriety or desirability of a given operation, but also the ability to perform the operation in a proper and approved way. The word “skill” has been defined to be “the familiar knowledge of any art or science, united with readiness and dexterity in execution or performance, or in the application of the art or science to particular purposes; . . as, the skill of a . . surgeon,” etc. Webster’s Int. Dict.

While it was admitted that the defendant possessed skill in the sense of knowledge or information''in reference to the surgical operation in question, it was of course not admitted that he had performed each and every part of the operation in exactly the manner which this knowledge or information on his part would have required. We say this was not admitted, because if it had been the plaintiff would have admitted herself out of court. The argument is, that when a surgical operation of the character involved in the present case is about to be performed, the time when the skill of the surgeon is expected to become active is when the opening is made in the body, and continues while the sponges or pads are being placed in the body, but that when the affected portion of the body, whether it be an unnatural growth or a part of the human system, has been removed and all precautions taken to prevent hemorrhage, and the moment arrives for the sponges to be removed, the operation is at an end, and no longer is the surgeon in a position where the knowledge or information which makes him a man of skill is required to be exercised, and that when the pads or sponges are being removed he is no longer the man of skill exercising skill, but he is simply the ordinary man, and is required to exercise due care and diligence only. We must admit that we are unable to apprehend any clear distinction' between the duty of the surgeon at the different stages of what, for want of a better term, we call the operation. It seems to us that the operation begins when the opening is made into the body and ends when this opening has been closed in a proper way after all appliances necessary to the successful operation have been removed from the body. From the time the surgeon opens with his knife the body of his patient until he closes in a proper way the wound thus made, the law imposes upon him the duty of exercising not only due care but due skill as well. During the entire time he must not only know what to do, but he must do it in a careful and skillful manner. It was conceded in the argument that the placing of the pads or sponges in the body required the exercise of skill. It seems to us that the removal of them from the body also requires some degree of skill. It at least requires a surgeon to perform this service, and if this is admitted, it is at the same time admitted that skill is required in the performance of the work. We do not suppose that any one would contend for a moment that a surgeon would be authorized to leave this part of the work, even if not a part of the operation or necessarily incident thereto, to any one who was not skilled in the science of surgery. A knowledge of the human body is necessary in order to determine where these pads or sponges should be placed when the operation is about to be performed. A like knowledge of the human body is also necessary to determine when all of them have bee'n removed. The surgeon who testified in behalf of the plaintiff said, during the course of his testimony, “ It may seem strange, but it is a very difficult matter to find a sponge; it is an easy matter to overlook it.” This testimony clearly shows that in the removal of the sponges which have been placed in the human body the person seeking to remove the same must be possessed of the requisite knowledge and information to find where they may have been placed or may have gone during the performance of the operation, and this knowledge or information on the part of the surgeon is what is called skill. The removal of the sponges is a part of the operation; it is a part which requires the exercise of skill; and the charges complained of were not, in our opinion, erroneous.

2. Complaint is made that the court in its charge to the jury called their attention to the fact that when they were empaneled they took an oath to try cases and render verdicts according to the law as given them in charge and the opinion they entertained of the evidence, and that it was their duty to take the law from the court; that they were not the judges of the law in any such sense as to authorize them to set up an opinion on their part as to what was the law, in conflict with the law as given them from the bench. The complaint is not that all that the judge said was not true, for this is admitted, but that it was unnecessary on his part to be reminding the jury that they were under oath and that what he said about the law was conclusive upon them. The contention is that the charge was calculated to embarrass the jury, and did embarrass them in considering the case. We find nothing in the charge complained of which is not a correct statement of the law, and we are at a loss to understand why it is that the fact that the jury are reminded that they are under oath to take the law from the court and that they should comply with their oaths would have the effect of embarrassing a conscientious jury, who should, above all things, desire to be instructed in reference to the delicate duties which are imposed upon them as men unlearned in the law, and unaccustomed, from necessity, to the decision of the intricate questions arising under the evidence, which can only be solved by looking to the judge as the legal exponent of the law of the case. In this day, when oaths administered to jurors, witnesses, and others are seldom administered with that degree of solemnity which should always accompany the administration of an oath, it is not inappropriate to remind those who have taken an oath, many times in a formal and perfunctory way, that the words of the oath are binding upon their consciences. The careless and hasty way' in which jurors, witnesses, and other persons to whom oaths are administered in court are sworn in this busy day of the world is not calculated to impress upon the mind of him who takes an oath the solemnity of the transaction in which he is taking part. The judge must have had some good reason for calling the attention of the jury to their oaths in this case; but in any event, whether there was such reason or not, there was no error in what he said to them.

3. Complaint is also made in one ground of the motion for a new trial that the court failed to charge the jury on the subject of the plaintiff’s alleged claim for damages growing out of the failure of the defendant to attend her, upon her request, after the operation had been performed. Even if the petition can be properly construed to contain any such claim for damages, the judge in a note to this ground of the motion states that this claim was not insisted on at the trial, and that his failure to refer to the same was due to this reason. This being the case, the judge was authorized to treat this claim for damages as having been abandoned, and it was not error to fail to notice the same in his charge.

The evidence fully authorized the verdict. The defendant testified positively that he removed all the pads; that he reached down in the cavity as far as he could reach, searched all over, and removed all of the pads; that he knew he got them all out, because he went thoroughly through the cavity and found nothing there; that he was satisfied he had found all that were placed therein. In addition to this, the testimony of numerous surgeons was to the effect that if the pad had been left in the body as claimed by the plaintiff, it would have resulted in her death within a short time, after the operation had been performed. The charge of the judge fairly submitted to the jury all of the issues involved in the case. The charges complained of were not erroneous, and the requests to charge, so far as they were legal and pertinent, were covered by the general charge. The court did not err in overruling the motion fora new trial. With the order overruling the motion the learned judge who tried this case filed a written opinion, which discusses. elaborately the questions dealt with by this court, and the reporter has been requested to embody in the official report so much of this -opinion as relates to the questions above discussed.

Judgment affirmed.

All the Justices concurring, except Little, J., absent.