159 Ga. App. 80 | Ga. Ct. App. | 1981
Lead Opinion
Appellant, plaintiff below., brought suit against appelleephysician for the allegedly negligent performance of a surgical operation which resulted in appellant’s blindness. A verdict for appellee was returned by the jury and judgment was entered thereon. Appellant appeals.
1. Several of appellant’s enumerations of error are premised upon the giving of the following jury charge which was requested by
The exact language of the contested charge appears in Hayes v. Brown, 108 Ga. App. 360 (133 SE2d 102) (1963). Resolution of the issues presented in the instant appeal mandate that we examine that language in the entirety of the context in which it appears, Division 1 of Hayes. Therefore, that division of Hayes is set out below:
“The basis for a malpractice action is provided in Code § 84-924 which provides: ‘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.’ The degree of care and skill required is that which, under similar conditions and like surrounding circumstances is ordinarily employed by the profession generally. [Cits.] The court and jury must have a standard measure which they are to use in measuring the acts of a doctor to determine whether he exercised a reasonable degree of care and skill; they are not permitted to set up and use any arbitrary or artificial standard of measurement that the jury may wish to apply. The proper standard of measurement is to be established by testimony of physicians, for it is a medical question. [Cits.]
“A doctor is not an insurer and an unintended result does not raise even an inference of negligence. ‘A physician can not always effect a cure.’ [Cit.] The law recognizes that medicine is an inexact science at best and all a doctor may do is to assist nature in accordance with the present state of medical experience. ‘The fact that treatment has resulted unfavorably does not raise even a presumption of want of proper care, skill, or diligence.’ [Cits.] It is also well established in this jurisdiction that ‘the presumption is that the medical or surgical services were performed in an ordinarily skillful manner.’ [Cit.]” (Emphasis supplied.) Hayes v. Brown, 108 Ga. App. 360, 363 (1), supra.
It is noted that the first paragraph of Division 1 of Hayes, quoted above, sets the standard by which the acts and actions of a doctor must be measured in a medical negligence case: the degree of care and skill as established by medical testimony which, under similar conditions and like surrounding circumstances, is ordinarily
This court in the second sentence of the second paragraph of the Hayes decision was merely undertaking to make clear the legal principle upon which is founded the rule of law that malpractice may not be inferred from an unfavorable result — medicine is an inexact science at best. In this regard, it is appropriate to an appellate decision reviewing the evidence in a malpractice case but could not possibly enlighten a jury of fact finders on the objective standard of care required of a physician. Indeed, the sentence, if charged as written as was done in the instant case, is susceptible of being understood as imposing a lesser standard on physicians than the required degree of skill. However, the intent of the second paragraph of Hayes is not to imply a lesser standard of care for physicians than is established in the first paragraph — which is that a doctor must exercise that degree of care and skill ordinarily employed by the profession generally while assisting nature in accordance with the present state of medical experience. We believe that an instruction on
However, a review of the entire charge demonstrates that the jury was carefully and repeatedly otherwise informed of the correct standard which they were to apply in determining whether appellee was negligent. For this reason, and this reason alone, the error was harmless. See Bonita Theatre v. Bridges, 31 Ga. App. 798, 806, supra.
2. During the course of the trial a C-arm fluoroscope machine, the same machine used during appellant’s operation, was demonstrated before the jury. This demonstration was conducted by fluoroscoping a bare skull. Because a bare skull was used instead of the skull of a living person, appellant contends that the demonstration was dissimilar to the actual circumstances of her operation. Appellant made other objections based upon appellee’s failure to show that the operating condition and repair and maintenance of the machine was the same at the time of demonstration as during appellant’s operation. We find no error for any reason urged on appeal. The same machine was used and substantially the same conditions existed at the demonstration as at the operation except for the use of a bare skull. In matters concerning demonstrations such as this the trial court has broad discretion and it was not abused in the instant case. Atlanta & W. P. R. Co. v. Hudson, 2 Ga. App. 352 (58 SE 500) (1907); Watson v. Elberton-Elbert County Hosp. Auth., 125 Ga. App. 112 (186 SE2d 459) (1971).
3. Use by the trial court of the term “guilty” in referring to appellee’s alleged culpability for malpractice did not constitute reversible error. While it is clearly the better practice not to make use of the word in the context of a civil action, “guilty” is not necessarily restricted to criminal culpability. See Black’s Law Dictionary (4th Ed.) p. 836. We cannot say, therefore, that use of the term was so confusing or misleading as to constitute error.
4. Appellant contends that it was error to grant appellee partial summary judgment as to that count of her complaint which alleged appellee’s failure to disclose the risks and dangers involved in undergoing surgery.
“The legislature has defined the physician’s duty of disclosure
Judgment affirmed.
Concurrence Opinion
concurring specially.
While agreeing completely with all that is said in Divisions 2, 3 and 4 of the majority opinion, exception is respectfully taken to conclusions drawn in the 1st Division.
The charge, “The law recognizes that medicine is an inexact science at best and that all a doctor may do is assist nature in accordance with the present state of medical experience,” is appropriate in this case. (Emphasis supplied.) It might well be argued that failure to give this charge upon request in all malpractice cases may be error. “ ‘Medicine is an experimental, not an exact, science.’ ” Bennett v. Ware, 4 Ga. App. 293, 299 (61 SE 546) (1908). Science generally means possessed of knowledge as distinguished from ignorance and specifically points to truths or laws that may be experimentally demonstrable and empirically tested. Nature is a creative, controlling inner force or sum of such forces in an individual and in the universe. Websters Seventh New Collegiate Dictionary, 1963 Edition. Stancil v. State, 155 Ga. App. 731, 732 (272 SE2d 511) (1980).
Medicine, like law and most other areas of general knowledge in its totality, is not pure or exact science. Math, physics and chemistry
It is my opinion that portions within the field of medicine in the present state of medical experience, such as taking of a patient’s temperature, blood pressure or blood type have evolved from inexact to exact procedures or methodology. This does not mean that all parts of medicine, or medicine in its totality, are exact testable science. An example of highly inexact speculative treatment within medicine is pointed out in the testimony in the case sub judice. One of the doctors stated that the chances were 85 to 90 percent that the radiation treatment would adversely affect the spinal column and the cord and would cause paralysis or cause her to become a paraplegic. This meant, as to this particular patient, that this type of treatment would be only 10 to 15 percent exact. The result might be more exact, as to success, if the same treatment were applied to a different part of the patient’s body. All that the trial judge has done, in effect, is to indicate to the jury that (1) a physician cannot guarantee a cure, (2) that he is required to do his best as to care and skill as is ordinarily employed by the profession generally while assisting nature (inner inherent forces and powers beyond the natural) in the healing processes within the body. Without the charge, under consideration, as given, it could be articulated that the duty of a physician “places an impossible burden on medical practice ...” Banks v. Dalbey, 150 Ga. App. 779, 784 (258 SE2d 701) (1979) (dissenting opinion) overruled by the Supreme Court in Dalbey v. Banks, 245 Ga. 162 (264 SE2d 230). In my dissent when the latter case was before this court, I tried to point out differences and distinctions between three concepts of medical liability: (a) total liability, (b) unlimited liability and (c) limited liability. The applicability and adoption by many in today’s society of the limited liability philosophy has encouraged the proneness and proliferation of malpractice suits. All of this has a bearing on the exactness or inexactness of medicine as a science, care
The real question in this case is the exactness or inexactness of radiation treatment. “ — In 1955, despite the best efforts of cancer therapy, which happened to be surgery, radiation and chemotherapy, two out of every three cancer victims were destined to die of the disease, or, as was later determined, the treatment of the disease. — In 1980, and with a vastly accelerated effort in terms of both economic and man-hour resources involved in a government-sponsored effort to wipe out cancer, the statistics are still the same. And the unimproved therapies are still the same . . . [T]he authors would like to emphasize that cancer statisticians in this country have arbitrarily established a five-year survival figure as a ‘cure,’ . . .” Jurimetrics Journal of Law, Science and Technology, “The Laetrile Phenomenon — Harbinger of Medical Revolution,” Robert W. Bradford and Michael L. Culbert, Vol. 21, No. 2, pp. 179, 180-181. (Emphasis supplied.)
The question of exactness or inexactness of science in this case is a hybrid law-science question. “A noted judge has written: Most importantly, science and law, in their broadest sense, encompass all there is for man, in his life and in his universe. Science embraces all
Unless a case deals exclusively with an exact or near exact science, questions as to an expert’s answer and judgment can be significantly influenced by his outlook. “. . . [A]n expert’s personal philosophy of socio-economic outlook may substantially affect his judgment.” 40 FRD 33, 34. Resolutions of differing views of experts are better left to a jury of non-experts.
“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 54 U. S. App. D. C., 293 F. 1013, 1014 (1923).
The charge was not error and I would affirm in all aspects.
Howard T. Markey, Chief Judge, U. S. Court of Customs and Patent Appeals, Science and Law; Toward a Happier Marriage, a talk delivered in acceptance of the Jefferson Medal, reprinted in 59 J. Patent Office Soc. 343 (1977).
Concurrence Opinion
concurring specially.
I concur in Divisions 2, 3 and 4 of the majority opinion. I concur specially in Division 1 of the opinion.
In order to see the context in which the disputed charge was given, I deem it necessary to set out additional facts.
In 1972 in an attempt to curtail the spread of appellant’s cancer, a surgical procedure called a radio-frequency hypophysectomy was performed on her. This operation involved the cauterization of the
In this case particularly, the charge “the law recognizes that medicine is an inexact science at best and that all that a doctor may do is to assist nature in accordance with the present state of medical experience,” was proper. The charge was taken from the case of Hayes v. Brown, 108 Ga. App. 360, 363 (133 SE2d 102) (1963). The trial court went on to charge fully and completely on the duties, obligations and presumptions arising from medical treatment.
I am authorized to state that Judge Birdsong concurs in this special concurrence.
Dissenting Opinion
dissenting.
Although I agree with the majority’s conclusion that the complained of charge was error, I cannot agree that the error was harmless. It is my opinion that the trial court’s instruction that “the law recognizes that medicine is an inexact science at best and that all a doctor may do is assist nature in accordance with the present state of medical experience,” was harmful and mandates a reversal of the judgment of the trial court.
The charge, limiting the role of physician to a mere assistant to nature, practicing an inexact art, does not present an accurate representation of the current state of medicine or medical practice. It could be implied from the charge that a physician is not bound by a standard of ordinary care; he is only to be held tortiously accountable for acts of gross negligence. This unwarranted and impermissible broadening of the requisite standard of care renders the charge
Unlike the majority, I cannot find the erroneous charge harmless in the context of the entire charge. The complained of instruction expanded upon and, to an extent, contradicted the correct standard of care and, therefore, was misleading, confusing and prejudicial to the plaintiff.
The language in the instruction was taken verbatim from language in the case of Hayes v. Brown, 108 Ga. App. 360, 363 (133 SE2d 102). The fact that language is used in an appellate opinion does not render it necessarily appropriate as a jury instruction. See, e.g., Bonita Theatre v. Bridges, 31 Ga. App. 798 (2) (122 SE 255); Chedel v. Mooney, 158 Ga. 297 (11) (123 SE 300). In the case at bar it was not appropriate.
While the law recognizes that medicine is an “inexact” science, so must it also recognize that all disciplines are inexact to varying extents. It cannot be. disputed, however, that there are “laws” of science and medicine that are invariable and exact. We have progressed to a point where medicine is not inexact “at best” but to where it is “at best” certain and exact.
Because of the body of knowledge in the field of medicine that is definitive, documented and clinically reliable, a physician is not limited to “assisting” nature but can, with the use of this knowledge and modern technology, manipulate nature. With this body of knowledge, a physician can alter, control, and even corrupt nature. To be certain, there are numerous aspects of medicine that remain speculative — that are yet to be understood and still to be explored — but experience and advancements in technology have rendered what was impossible a generation ago possible today.
A physician is not an insurer, and an unintended result does not raise an inference of negligence. On that point of law there is no dispute, and the jury was duly instructed to that effect. It is my opinion, however, that the trial court’s instruction understated the present state of the practice or science of medicine; that it implied that physicians are to be held to a much lower standard of care than is mandated by law.
In the instant case, where plaintiffs allegations of negligence involved defendant’s use of certain equipment and his failure to use other available means to aid his view of the operating site, a question of exactness was raised; that is, whether the defendant’s failure to use available equipment, arguably more exact than that used, constituted a failure to exercise reasonable care. Therefore, it was inappropriate, expecially in this context, for the trial court to emphasize the inexact aspects of the science of medicine and the limitations of the physician vis-a-vis nature.
The plaintiff should have the opportunity to retry her case under appropriate instructions to the jury that do not mislead or force consideration of an erroneous and strained standard of care. No erroneous charge can be deemed harmless which alters or lessens a litigant’s chances of prevailing. It seems clear to me that that occurred in this case. That being so, I would reverse the judgment of the trial court and grant plaintiffs motion for a new trial.