Phillips v. Shea

Felton, C. J.,

dissenting. Whether or not the doctor was negligent in this case is a medical question the answer to which must be established by medical testimony, of which there is none authorizing a finding that the doctor was negligent. In order to make out a case, the plaintiff had to prove that the doctor was negligent in taking the risk of leaving the tube in the artery, assuming that the doctor knew of the danger and possibility of the tube’s being cut off and left in the artery and that it could not be later located and removed. What the doctor should or should not have done depended on the condition of the patient and the weighing of the results of not endeavoring to prepare for and make an X-ray and of the chances for successful treatment against making the effort to prepare for and make the X-ray and the chances for adverse results as were had in this case. The mere fact that the jury had evidence from which it could find that the leaving of the tube in the artery contributed to the condition which necessitated the amputation could not take the place of proof that the doctor was negligent in the procedure which he followed. The law in such cases is clearly stated in Pilgrim v. Landham, 63 Ga. App. 451 (4) (11 S. E. 2d 420). In that case it was only held that the bad result could only be considered if the negligence was shown as measured by the method shown by medical witnesses to be negligence. The court stated: “The proper standard of measurement is to be established by testimony of physicians; for it is a medical question.” See also, Howell v. Jackson, 65 Ga. App. 422, 423 (16 S. E. 2d 45); and Mayo v. McClung, 83 Ga. App. 548 (64 S. E. 2d 330).