Carreker v. HarperCarreker v. Harper
Lead Opinion
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)
The charge of comparative negligence regarding plaintiff’s nondisclosure of certain symptoms and medical history was correct. Hayes v. Hoffman,
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,
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,
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.
Dissenting Opinion
dissenting.
I dissent as to Division 1, but concur fully in Divisions 2 and 3.
Ordinarily, “questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection, ... are to be decided by a jury.” (Citation and punctuation omitted.) Tisdale v. Johnson,
Firstly, I do not believe that plaintiff’s alleged failure to disclose certain information about her condition constituted negligence in the case at bar. Distilled to its essence, defendant’s argument amounts to but one conclusion, to wit, that plaintiff should have been able either to diagnose herself, or at a minimum, should have been able to determine what was or was not pertinent information concerning her illness. This the law does not require. “[A patient is] under no general duty to diagnose her own condition or to volunteer information.” Mackey v. Greenview Hosp.,
Although somewhat more problematic, I also believe that the evidence concerning plaintiff’s failure to seek additional medical care care, did not, under the facts of this case, authorize the complained of charges. The evidence presented at trial shows plaintiff was informed she should follow-up with another physician in five or six days or in a shorter period if her symptoms persisted or worsened. Plaintiff was also informed she should “recover completely in 2-3 days” and was advised to be rechecked if she suffered sudden worsening of abdominal pain, dizziness or fainting, persistent vomiting or if blood appeared in vomitus or stool. The record shows that plaintiff’s condition did not dramatically worsen until Wednesday, approximately two days after being examined by defendant. At that time plaintiff did seek additional medical care, by calling an ambulance, but decided after talking with emergency medical personnel, who reviewed the instructions given to her by defendant, not to be transported to the hospital at that time. However, approximately five hours later, at 4:45 a.m; on Thursday morning, another ambulance was summoned and plaintiff was transported to the hospital where she was diagnosed as suffering from shock and diffuse peritonitis caused by a ruptured appendix. The record shows, therefore, that plaintiff sought additional medical treatment less than seventy-two hours after being treated by defendant, and that she acted in accordance with the instructions given to her in seeking follow-up medical care.
This case is thus distinguishable from those in which we have held that a charge on contributory negligence was authorized by evidence showing that the plaintiff/patient failed to follow post-treatment or post-operative instructions. For example, in McMullen v. Vaughn,
“A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to the [plaintiff], and is error requiring the grant of a new trial.” (Citations and punctuation omitted.) Koppar Corp. v. Robertson,
I am authorized to state that Presiding Judge Banke and Judge Cooper join in this dissent.
Dissenting Opinion
dissenting.
I agree with the dissent as to Division 1. I concur in Division 2 of the majority opinion, but I do not concur in all the rulings on evidentiary questions made in Division 3.