*1 796 special demur- and sustaining general the erred in
The court dismissing in the action. rers and Quillian Nichols, JJ., concur. Judgment reversed. and v. SHEA. PHILLIPS, Administratrix 36190. 12, Rehearing 29, 1956 1956. denied December November Decided
801 *9 806
811 *17 Northcutt, Johnston, W. S. Edwin B. Northcutt & Edwards, B. in Edwards, plaintiff J. for error. Branch, Jr.,
James A. Thomas B. Branch, contra. conveniently In order designate parties J. to the Quillian, plaintiff opinion, referred in the in Mrs. error, to H. this Jessie the Phillips, plaintiff; will be referred to as the in er- defendant Shea, Jr., defendant; P. C. the Hugh Phillips, Dr. as and D. ror, in originally who instituted the and action whose ad- stead his substituted, patient. ministratrix was will referred to as the be alleged petition upon in proof action and of The cause of the plaintiff recovery relies for was that a defendant, which the the injuries patient proximately by caused serious the his surgeon, to ordinary performing operations, failure exercise care two to in diagnostic operation ascertain the location extent one a and to aneurysm patient’s in the the ex- of abdomen and other an an a tube operation piece plastic to of or catheter ploratory find the patient’s system the arterial in the broken off in course of operations ensuing in the discussion will operation. These first
817 they after in which “the be referred to the order occurred first as operation.” operation” and “the second being appeal judgment an a trial grant-
This from of the court ing nonsuit, only question the plaintiff a here is whether the proved petition. the the case as laid in Archer v. Johnson, 90 App. (83 314); Ga. 418 E. 2d Hardin Nicholas, App. S. v. 90 Ga. (84 110); City 738 S. E. 2d v. Commerce, 91 Ga. Bradford of (86 645). App. 581 S. E. 2d prima
The defendant the contends evidence failed to facie prove alleged right the case hence that judge as and the trial was particularly in the He granting nonsuit. that plain- insists the proof for the expert was insufficient reason no witness in the tiff’s diagnosis surgery of or opinion field testified direct that to the negligent performing in either of operations, he was the or that his negligence part injury patient. sup- on in resulted to the In port position authorities, of this several all stating he cites the necessity as expert opinions rule to the for in of same matters diagnosis. Perhaps pronounce- the best-worded and clearest Pilgrim ment of the in Landham, App. rule found v. 63 is Ga. (11 (3) 420), S. as is proper 451 E. 2d follows: “What the of is a diagnosing question method a case medical to be testified by physicians expert Laymen, jurors to witnesses. even and as courts, permitted say proper are to what not is the method of diagnosing discovering a case for of the nature the ailment. diagnosis pronounced of the and if treatment, Results as to so apparent, leg become where a or limb which been broken as has diagnosis is than after may the other and be treatment, shorter by anyone. Grigsby testified James (Kansas), to v. 200 Pac. And where, by by 267. measured the method medical shown negligence evidence, witnesses to be and the a bad is result shown, province it the whether jury say is the to the result of by negligence.” the was caused quoted, correct the holding
The construction of and of others import, every recovery is in case plaintiff’s similar not the that upon testimony opinion expert direct of an dependent or is the was patient that the examination of unskillful or witness the his person performed negligent. on The rule operation the stated only apply where, in those cases on of to account was intended the or intricate involved character of disease the of the nature 818 its necessarily employed in existence processes ascertaining
the bring by testimony his expert an cannot progress, witness and intelligent laymen the facts comprehension of which the within determining diag- in whether the be known and understood must However, made. the of this case prudently was decision nosis by Pilgrim supra, the by holding case, in but controlled the not is (89 Knight, E. App. rule stated in Caldwell v. 92 Ga. S. the 900). 2d operation petition not assert respect
In to the first the does part care on the defendant’s either that was lack or there of skill aneurysm patient’s malady the as an in his abdomen diagnosing in *19 operation be in as- performed in determination of the to or the aneurysm. of the The the location certaining exact and extent negligence opera- that charges of in relation to specifications or exclusively pertain to manner which it was executed. tion the in the negligence were above in specifications The of as set forth of facts. statement sufficient an issue fact plaintiff’s proof present
If the to was of defendant, operation, performing the the first to whether while as alleged petition the negligent particulars in of in was one the plastic in negligence caused the tube to break off and that the the of nonsuit This arteries, grant the the was error. deceased’s au- competent was evidence in the record true because there is injuries for logical the which thorizing the inference that all of proximately recovery sought flowed from and were caused was being tube or severed and by segment plastic of the catheter the operation set adrift the second was patient’s in arteries. The of its by breaking catheter, off admittedly necessitated the the and its only discover the location thereof effect purpose being to system. operation That this patient’s removal from the arterial physical and constituted a serious grave was itself of a nature by the evidence. injury is patient the shown to in the record authorize There was also sufficient evidence to lodged the of catheter the segment broken the at finding a that leg artery patient’s right the in the popliteal bifurcation of of knee the flow of blood just cap, back the occluded which is proximately thus re- causing up foot, in his and gangrene to set amputated. right be Dr. Shea testi- leg having in to sulted his presence in popliteal artery, tube in the fied the broken the that arteriosclerosis, could “well cause” obstruction the blood of of points to distal flow the to the occlusion. There was evidence stage that in an present advanced was in the arteriosclerosis artery. his The defendant in the matter admitted version of of piece tube, plus that the broken present blood in the clots artery, theory could have caused the He the occlusion. advanced blood that clots alone could even the effect, have had that in catheter, absence of the and that the condition could have ex- present artery. isted before it in However, was there was the complaint evidence or any pain any no of discoloration the in of artery. foot before the was severed in catheter the other On the hand, undisputed there was evidence that and shortly thereafter, day, experienced pain on the the patient excruciating same in foot and turned dark the that it a color due to the of occlusion Phillips’s blood flow that member. the to Mr. in this condition 'respect gangrene up deteriorated until the set amputa- and the necessary. tion his leg of was upon
The evidence adduced the trial showed defend- that the by patient’s was called consultation the physician; ant into that aneurysm present patient’s it was determined an was that in the system, abdomen, operation arterial in that an his and to defi- nitely just learn in what it existed upon. arteries was decided operation, according The to a testimony, the defendant’s was proceeding 15-guage in a pa- which catheter was in the inserted *20 superficial artery passed along tient’s and from femoral thence that in the direction the proximally, to the is, heart, of bifurca- of the opaque injected the aorta in An tion abdomen. fluid was through shape the tube into the The arteries. size and of the distinctly arteries involved would be outlined that accurate so X-ray taken and exact pictures could be the location and extent aneurysm accurately the of ascertained. support allegation did the
The evidence not the defendant that in examining testing plastic failed to exercise care or the tube. affirmatively properly evidence showed he did the His that test artery off in the The that the tube a tube. fact broke was not indicating contrary, the because the circumstance doctor de- patient’s in might a condition the arteries scribed which well to expected perfect been cut break even a or tube of the have type used. began first defendant the was evidence before the
There that patient’s the arteries that existed in aware there operation he was of interior the that this disease caused the walls arteriosclerosis; that off; particles and the same to flake to harden of arteries plaque, known as calcium shell- became what is particles these of an passage would obstruct the sharp, and which shaped, hard two capable cutting in object in the arteries and were of inserted knowledge defendant, plastic the kind used. The with a tube of artery tube in the circumstances, patient’s the of these inserted along the heart. pass it the toward and undertook to arteries attempt he partly resistance in this withdrew When with he met pressed against then it the or catheter and obstruction the tube process repeated attempt passage. This in an to force its was in result the catheter was broken off with the that times several artery. the proof is if the submitted inescapable
One two conclusions of that, fore- by by is first the exercise of the plaintiff the true: care, thought ingredient is the defendant which chief of the pressed anticipated tube, against the the should that when have was passage that barred its with the ex- force that obstruction secondly erted, off; that, or if the obstruction be broken must might calcium tube expect be, it to the plaque, was what he well artery. of it left in the part and a be would would be severed in complaint negligent the defendant was the Thus the that patient’s manipulated the tube in plastic manner in which he the by sub- supported and should been was evidence have arteries point jury. in review of the case it is mitted to the this our At nonsuit case apparent grant it was to and that the that error the must reversed. be the that overlooked the fact doctor stated
We have not that against obstruction. It must pushed the tube the very gently he exerting the doctor was what antici- be observed that he unless the tube enough pressure passage to force the of pated be would no obstruction, purpose been in with- there would have past the circumstances, these tube forward. In pressing drawing and the ordinary in the of to exercise jury whether, it was for the decide the broken anticipated might tube be that care, have he should *21 or cut. necessary purpose deciding of that for the not
However, while case question, again, since the be question is to tried and the will arise, expedient is to.pass then it upon whether the issue toas alleged negligence the of defendant in the performing the second operation supported by was competent proof carry sufficient to jury. a it to operation
This described the by was in defendant a statement by made him. The seriousness and complexity of its ap- nature peared the testimony. from gave defendant’s The defendant piece plastic evidence that the of tube loose in patient’s the arte- system rial variety could in result a of serious and consequences, that its presence posed there considerable danger; but three that probably months would elapse before the mischief could be done. Thus he it made clear the that removal of the tube was neces- sary, but that his opinion in was there no cause for haste in performing operation an purpose. for that operation
The evidence performed showed that the first in was X-ray the that room; immediately after discovering had that he broken tube patient’s the off in the arteries the sent defendant patient the to the operating and, room without an- summoning surgeon other him, began to assist operation. the second Since the evidence the elicited from defendant that an- indicated the eurysm not great was so that he did not have time in which to secure the services another surgeon, together of with the admis- by him sion did employ that he not some method of determining part what patient’s anatomy of the explored should be first in the piece search of of patient’s tube adrift in the arteries, we think the issue as ordinary whether care required to him to call surgeon another into consultation was a question jury. for the The presents evidence an issue of as fact this to matter.
In opinion the plaintiff our her proved substantially case as in petition, laid the and the grant of the nonsuit was error. The presented specifications issues by negligence the of in reference the defendant’s to failure exhaust the diagnosis to means of con- veniently him, available to before beginning exploratory the examination, supported by were some evidence and have should jury. been submitted the certainly to The evidence furnished jury the upon a factual which they basis could have an made intelligent finding in reference to the matters involved. From upon the adduced trial, evidence the legiti- it could have been *22 822 in were, alleged diagnosis that means
mately inferred the of as had he presently defendant; the available to the that petition, strong use; there employ sufficient their and that was a time to they lodgment the of probability would have disclosed the cathe- dis- leg amputation ter dissection of the after point at where the ordinary by of the prudence closed Thus the presence. its use operation might have as necessity of the second been obviated leg. loss well of the patient’s as the Judgment Gardner, J., reversed. P. and Townsend, Carlisle JJ., J.,C. dissents. Nichols, Felton, concur. neg J., dissenting. not the
Felton, C. Whether or doctor was ligent question medical which in this case is a the answer to is by testimony, must medical of which there none be established authorizing negligent. that the doctor In order to finding a was case, plaintiff the had the was prove make a to that doctor out artery, taking negligent leaving in risk of the tube in the the of danger possibility the knew and assuming that doctor of the artery left in that it could being and the and the tube’s cut off or located removed. the should not be later and What doctor depended patient on condition the not have done the of should prepare to weighing endeavoring and the results of not of the X-ray of for treat for and make an and the chances successful for make the making prepare ment effort and against the to as were in this the chances for results had X-ray and adverse which it jury that evidence from case. The mere fact the had leaving artery the the tube in the contributed could find that of amputation not the could to the condition which necessitated proof negligent pro in the place take the of the doctor was that is stated clearly in such cases he followed. The law cedure which (11 420). App. (4) Pilgrim Landham, Ga. 451 S. E. 2d in v. 63 only be only held bad result could In that it was that case the the by negligence the if was shown as measured considered by negligence. witnesses be The court shown medical to method of estab standard measurement is be proper stated: “The to testimony question.” is a medical by physicians; it lished of for (16 App. 422, 2d Ga. 423 S. E. Howell v. 65 also, Jackson, See (64 330). App. Mayo McClung, v. 83 Ga. E. 2d 45); and S.