*1 70942. McCLURE v. CLAYTON COUNTY HOSPITAL al.
AUTHORITY et Presiding Judge. Birdsong, brings appeal grant
Plaintiff, McClure, Gerald from summary Clayton Hospital judgment County defendants, to the Au- thority Yusufji. injured cutting Dr. Feroze McClure himself while and required surgical 23, 1979, down a tree on December treatment Yusufji for diately Dr. his left arm. treated McClure for the first time imme- his for a elbow. after accident lacerated The laceration was partially follow-up closed, and on McClure returned for Janu- ary 1, 1980. given prior being
Plaintiff was taken some medication into the operating room, but he conscious and talked was to the nurses and operating helped Boehmer, nurse, Dana room anesthetist. place operating table, on was McClure which a mat- right supported by tress several inches thick. The board” with a so that the intravenous solution arm was an “arm plastic top. supported mattress on The board the arm
flowing into that arm was accessible operated to the anesthetist. The arm was to left be on and also was supported by padded. an arm board. That arm board was It not was painted approximately colored white had a red cross on it. It was long, thick, one-half of an inch four feet and from 12 to 16 inches placed wide. Nurse Boehmer stated that she arm and “under the mattress” at the the arm under board
top placed then arm and portion a sheet over board. The sheet was over protruded portion from the table but not over that under the mat- assisting operation, Crews, tress. Nurse who was in the said the left placed “upper up right arm board was under McClure’s above the shoulder about to mid-back.” board,
McClure stated left arm white in was color placed body it, with a red cross on was underneath his and over top gown open of the mattress. His medical was and the directly against my skin, board was his “in the small of back.” Plain- pain tiff anesthetist, said he nurse and the pillow but all the nurse did was another under shoulder. McClure said left arm board was visible to when he performed surgical procedure “tried him I he to tell that was hurting. right.” thing It wasn’t The first remembered when coming pain diagnosed screaming out from under the anesthesia was because finally doctors, his back. After referrals to he different was having “slipped” operation An or “herniated” disc. performed pain disc remove the but the has not subsided. summary judgment
Defendants moved for and submitted the af- Yusufji, fidavits of Dr. and nurses Boehmer and Crews. Dr. in his set forth of the facts stated that he had orthopedic surgery. specializing doctor affidavit and was a medical says he met or exceeded plaintiff, In his care and treatment and medical doc- physicians other of care exercised the standard He states that like and circumstances. tors under conditions generally already room, plaintiff McClure when he entered *2 hand boards supporting and the placed on the table been able to see by a sheet. He was not were in and covered where plain- location on placed insofar as their the hand boards had been opinion nothing medical was also of the tiff’s back. Dr. to do employees, did or failed Clayton Hospital, its nurses or General plaintiff’s pain and discom- contributed to the proximately caused or rise giving or to the conditions expressed his “low back fort he about subsequent at a date. plaintiff underwent surgery” to the and of one medical doctor two presented Plaintiff the affidavits they chiropractors stated that chiropractic medicine. Both doctors in in this case and certain records and documents” had “examined plaintiff’s problem professional opinion, although their pre-ex- hand board improper placement surgery, isted defendant’s low contribute to likely could have caused and most did subsequent surgery. The “certain complaint which attached, nor were were neither records” referred to the affidavit state that their they chiropractors otherwise identified. Nor did the personal knowledge. affidavits were made on their doctor, affidavit on behalf a medical executed an Willingham, skill, care, and standard of plaintiff, that he was aware of the surgeons, and was diligence by physicians exercised other and patient’s directly against opinion placing a hand mattress, placement and body proper was not a between the and gener- others of medical care exercised did not meet the standard ally under like conditions and circumstances. affidavits chiropractor’s that neither of the
The trial court found they had re- they merely stated that probative had value because their affida- had not been attached to viewed “certain records” which identified, not state that vit or otherwise and did The their was based. court knowledge of the facts which expert there no tes- malpractice found that this was a action and was timony malpractice of the defendants caused or con- alleged material issue of and there was no injuries tributed to fact, to defendants. Plaintiff summary judgment granted and Held: brings appeal. 51-1-27, malpractice actions is OCGA The basis for medical § practice to person professing provides part, a reasonable profession exercise of his bring
medicine “must of such is a resulting from want care degree Injury of care and skill.” Our Henry, tort. Sullivan v. presumes physician surgeon performs healing law that a and art ordinarily an is on the one who denies skillful manner and the burden skill, care, Shea v. diligence. show the lack of due and proof ordinarily required care, skill, presumption overcome such and is that diligence given by physicians surgeons expert or witnesses. Id. Where a defendant surgeon in a malpractice suit introduces his own affidavit as expert in support summary witness of his motion for judgment skill, care, performed conformity that he his medical services in diligence generally surgeons profession exercised other in his oppose by contrary fails to expert opinion evidence, summary judgment defendant doctor is entitled to favor, provided that actionable negligence appear does not so clearly from the evidence of record that expert testimony is unneces- sary to establish a Terrell v. prima Ferry facie case. West Paces Hosp.,
“Only circumstances, in extreme where judgment the error of or result of treatment is so gross, palpable, is clear and may plaintiff-patient presumption overcome this and meet his ev- *3 identiary burden producing expert testimony without to the effect that the defendant-physician required violated the degree of care and Cockrill, (312 skill.” Hyles 132, 124); v. App. 169 Ga. 138 SE2d accord (2). Shea, supra only Our courts have held that exception to the requirement produce expert testimony showing deviation applicable standard is one in which concerning the facts “ alleged malpractice, medicine, ‘although connected with are so well require known as not to expert testimony place them before the jury, or where the case concerns matters juries must be credited with knowing by reason of common knowledge. [Cits.]’ Stated way, another this evidentiary burden on plaintiff-patients produce expert such medical testimony applicable is in except those cases where the asserted appear actionable would to be so clear from the would, evidence then of record that expert testimony point, at that otherwise be unnecessary to a prima establish facie case malpractice.” Killingsworth Poon, (307 v. 653, 167 Ga. App. 655 123). SE2d We do not placement find that aof hand board under- patient neath a to be such an negligence, obvious act of gross or is so palpable or clear and act of negligence, necessity to obviate the expert testimony to refute expert opinion. a defendant’s
Similarly, we reject any must argument the instant factual situation is the doctrine of res ipsa loquitur. Terrell v. Ferry West Paces Hosp., supra; Hosp. Hill v. Auth. County, Clarke App. 739); Young Yarn, 137 Ga. 633 SE2d v. App. 136 Ga. 113); Tuggle 737 Hosp. v. Auth. County, Gwinnett
417 (211 318 transcript proceed- of the Plaintiff has elected not to submit a the record. Plaintiff ings rely totally upon and we must below they argues presented chiropractors affidavits of two a material issue for trial. Both stated have established but im- his defendants problem probably pre-existed likely contributed to proper placement of the hand board most stated that problems since that time. Neither affidavit affiant, referred to “cer- personal knowledge made on and both opinion, without at- and documents” as a basis for their tain records to, papers referred taching copies sworn or certified of all (e). records and docu- by OCGA 9-11-56 Neither were the “certain § court could “clearly that the trial court and this ments” identified” so included this if those medical records among ascertain were particular deficiency. could have cured record. Such identification Rodzewicz, This court v. Jones Christmas, v. a similar issue in Childs faced 629), knowl- in which the affiant did not state he had records neither of the facts and based his on medical edge lack- clearly nor We found the affidavit attached otherwise identified. v. probative value. ing Accord Crawford 593); Hayes Murray, Hence, lacking pro- chiropractors we find the affidavits of the two insufficient to raise a material bative value and are as a matter of law issue for trial. doctor, poses a dif- Willingham,
3. The affidavit of Dr. a medical upon per- problem. ferent It also does not state that it is based affiant, examination of sonal but was based hand merely of a “certain documents.” It concludes directly operating table’s patient’s board between a back and the by doc- mattress does not meet the standard of medical care exercised the hand generally. tors stated that the nurse did immediately against top on table’s Thus, of the fact used as the mattress. there is evidence the record Jones, (1); opinion. supra for Dr. See Jobson Willingham’s basis *4 388). However, 440, 442 Dooley, App. 164 Ga. any departure Dr. Willingham alleged does not state that injury damage
standard of care caused or contributed to or appellant. plaintiff malpractice, In to recover for there order for a failure to use physician’s alleged must be sufficient evidence that proxi- in treatment either requisite degree diligence of skill and Jobson, The mately supra. injury. caused or contributed as to the al- any affidavit of Dr. failed to show causation Willingham appellee be attributed to the leged injury appellant which could Yusufji. Dr. placement by of the hand board was made nurse Boehmer. Yusufji operating placement Dr. entered the
She made such before of the left arm board was Although visible, where it room. protruded outline
away by operating sheet, table, from it was covered a he was unable to see where the board was and placed stated patient. refute under the There is no evidence the record to this statement. App. Patterson, court, in Porter v.
This 70), adopted hospital the rule that a non-charitable is liable for the negligence employees, per nurses, orderlies, of its and other though duties, formance of their administrative and clerical their act ment even may part patient’s prescribed constitute a of a medical treat require application spe doctor, if the act did not of a technique understanding physician cialized or of a skilled or sur geon. p. Id. 72. Where no unusual acts were involved which called for experience, may reasonably an exercise of medical skill or a doctor granted experienced take for nurses on the staff of a modern hospital ordinary customary nursing will attend to their duties Joseph’s Id.; without his detailed instructions. accord Goodman v. St. Infirmary, 487); Perkins, Su course, Of there is the additional hospital yields employees surgeon rule that when a control of its to a surgeon in the supervision room and the exercises immediate employees,
over those “then he becomes their master and negligence during relationship their will be the course of the master servant imputed Joseph’s Hosp., him.” Swindell St. 290, 291 It is clear from the evidence of record that the placement of the hand board was that the nurses and was com pleted surgeon operating room, before the entered the and he did not supervise by placement of the left arm board which had been preceded appearance
a sheet. These acts and were not made personal supervision” bring under his “immediate so him as to under Atkins, the rule of Swindell. Accord Miller v. 142 placement Neither can we find that the of a hand require application specialized board is such an act as would of a technique supervision physician surgeon. Porter, or the of a skilled or supra; supra; supra. Accordingly, Goodman, Su, we find no evidence record, of actionable of Dr. in the and it was not grant summary judgment error for the trial court to in his favor. liability hospital. Pretermitting 4. We turn next to the issue of whether the evidence of the of the hand board plaintiff nurse Boehmer under the was sufficient to raise the issue of negligence, there are three elements a must establish to show (1) malpractice liability: duty hospital, the breach duty by failing requisite degree care, to exercise the of skill and
419 skill requisite such hospital to exercise that the failure Haw Cf. sustained. injury cause of the proximate care was the 574, “Negligence 575 Greenberg, v. kins the that recovery. proven It must be to sustain is insufficient alone care or such want of resulted from proximately injury Id.; accord is not sufficient.” of such result possibility A bare skill. 283, 284 Auth., Ga. App. County Hosp. 158 v. Houston Maddox chiro us, absent affidavits The record before the between any causal connection totally practors, is devoid Maddox, by plaintiff. suffered alleged injury nurse’s actions and 113, Auth., County Hosp. v. Chatham supra; Parrott summary judg properly granted The trial court 115 he stated when on the affidavit of hospital ment of the hand opinion professional it was plaintiff’s low contribute to the any way cause or board “did not Dr on him. performed” subsequent surgery complaints problem pre-existed opinion was of the to causation of This medical as performed. is so subject is it a of was not refuted nor injury complained testimony, or a mat clear, require expert not to and so well known as so as to which a must be credited with common jury ter Cockrill, supra; Kil Hyles v. necessity expert opinion. for negate Auth., Poon, County Hosp. v. lingsworth supra; v. Maddox Houston Shea supra; 284; Ferry Hosp., Terrell v. Paces supra, p. see also West Phillips, supra. J., J., Sognier, concurs concurs. Judgment Carley, affirmed. specially. specially. Judge, concurring Sognier, I opinion. specially concur add fully majority’s I concur testimony of 2, noted that majority Division any that the attend- chiropractors did not include statement the two employed by the exercise the skill and care ing physician failed to my In patient. the treatment profession generally statement, such a the affi- even the affidavits contained opinion, malpractice in this action question raised no of fact davits would have opinion of a qualifications, of these affiants’ regardless because not used to a medical doctor should be chiropractor qualified not medical doc- defendant of care establish the standard 739) 495, Howard, 498 tor. 161 Sandford 552) (1957). 269, (1982); 271 Shea v. (S.C. 1984); Lundgren v. Bycura, Botehlo v. 320 SE2d See 12, But see Minn., July Eustermann, Court of decided Supreme McCormick, Ga. 401 Avret v. Sandford, supra; (1980). September 198 Decided
Rehearing 198 denied October McAllister, appellant. J. Dunham for Duckworth, Jr., appellees. William H. *6 THE BROWNING v. STATE.
(336 SE2d Presiding Judge.
McMurray, robbery The defendant was indicted armed of the Pizza Carrollton, Hut restaurant Georgia kidnapping and for two of the employees. trial, restaurant’s Prior to the defendant moved the court for an suppressing order the use of evidence which was seized from the defendant’s apartment ground on the it was obtained an search illegal and seizure. After a hearing, the trial court denied the proceeded. defendant’s motion and the trial 24, 1984, The evidence trial at showed that on June at about two Leonard, morning, o’clock Charles assistant manager of the Hut, Mitchell, Pizza employee Hut, and Dennis of the Pizza just closed the restaurant and in the parking were lot when a woman head, with a sack over her carrying pistol wearing blue jeans, gloves, tennis shoes and approached Leonard money. and demanded gave Leonard part robber of the night deposit. The robber then led Leonard and Mitchell into the restaurant and ordered Leonard to give money her complied restaurant’s safe. Leonard with the robber’s demand. She then forced the men storage into a cooler at gunpoint. later, Several minutes Leonard came out of the cooler and police. called the
Leonard and Mitchell told the police thought the rob- (the ber was a certain employee former whose name Jill Browning defendant). They based their recognition identification their her voice physical appearance and her although the robber never re- gloves moved the hood and during robbery. she wore Both men were familiar with the defendant because she employee had been an of the Pizza prior Hut for about a month robbery. the armed information,
Based on police went to the defendant’s apartment, conducted a search and recovered a loaded .22 pis- caliber pistol tol. The was introduced into evidence and was identified as the weapon used police the armed robber. The quan- also recovered a ($1,118) tity of cash which was found envelopes along inside with bills belonging to the defendant. police also searched an automobile (which was said to be used night the defendant on the of the rob-