Anderson v. Crippen

Court of Appeals of Georgia

Anderson v. Crippen

176 S.E.2d 196, 122 Ga. App. 27, 1970 Ga. App. LEXIS 768

CourtCourt of Appeals of Georgia

DecidedMay 20, 1970

Docket45027

StatusPublished

Cited by27 cases

This text of 176 S.E.2d 196 (Anderson v. Crippen) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anderson v. Crippen, 176 S.E.2d 196, 122 Ga. App. 27, 1970 Ga. App. LEXIS 768 (Ga. Ct. App. 1970).

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Opinions

Deen, Judge.

The general rule is that since the jury is not bound by opinion testimony, this type of evidence may never Serve as the basis for the grant of a summary judgment whether contradicted or not. Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393); Harrison v. Tuggle, 225 Ga. 211 (167 SE2d 395). It is here contended that all malpractice actions fall within this category. In Truluck v. Funderburk, 119 Ga. App. 734 (168 SE2d 657) the court questioned Jackson v. Tucker, 118 Ga. App. 693 (165 SE2d 466) where the grant of summary judgment to a defendant physician had been affirmed, and reversed the grant in the case under consideration because "the opinion testimony in the case sub judice would not be sufficient to authorize the granting of the defendant’s motion for summary judgment.” This was followed in Williams v. Melton, 120 Ga. App. 466 (171 SE2d 318) in a malpractice action involving a question of improper diagnosis, failure to follow conservative treatment, and failure to advise the patient of the risks involved in surgery. These cases illustrate situations where a jury would ultimately have to make a choice of inference as to negligence or non-negligence based on medical opinion evidence as to what procedures would constitute the exercise of reasonable care and skill in diagnosis and treatment, and thus would necessarily be dependent on the opinions of doctors as to what was proper, [30]*30and this regardless of the fact that we have many times said that the ultimate fact of diligence or negligence is for the jury and may not be the subject of direct testimony.

The present case raises the question of whether every malpractice action ultimately depends on jury inferences from opinions, so that it may be said that under no circumstances can summary judgment be granted a defendant physician because whether or not he was negligent in diagnosis or treatment depends on the opinions of other doctors, and the defendant cannot show that it would be impossible for the plaintiff at the trial to produce an expert witness in whose opinion the defendant was at fault. We do not apprehend this to be the law. Expert medical testimony may or may not be opinion testimony, and where a difference of opinion is shown the matter is of course for the jury. But no case has gone so far as to say that the defendant has the burden of showing that no contrary opinion may exist. On the contrary, in a malpractice trial the plaintiff must come forward with some evidence from which negligence may be inferred or he fails to make a prima facie case. Shea v. Phillips, 213 Ga. 269 (3) (98 SE2d 552). Mere failure to effect a cure is not of itself any evidence of negligence. Specht v. Gaines, 65 Ga. App. 782 (16 SE2d 507). "In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill and diligence. Ga. Northern Ry. Co. v. Ingram, 114 Ga. 639, 640 (40 SE 708); Akridge v. Noble, 114 Ga. 949, 958 (41 SE 78); Fincher v. Davis, 27 Ga. App. 494 (2) (108 SE 905); 21 RCL 406; Taylor, Med. Jur. 356. And in such a case the proof ordinarily required to overcome su.ch presumption of care, skill and diligence is that given by physicians or surgeons as expert witnesses. Pilgrim v. Landham, 63 Ga. App. 451 (4) (11 SE2d 420); Howell v. Jackson, 65 Ga. App. 422 (16 SE2d 45); 70 CJS 1006-1008, § 62; 41 AmJur 238, § 128.” Shea v. Phillips, supra, p. 271. Where the movant in summary judgment shows facts from which the only inference reasonably to be drawn supports the initial presumption that a proper degree of care and skill was used, or as in this particular case, that no negligence on the part of the physician was [31]*31the cause of the failure of the fractured bone ends to knit together, and where the defendant testified positively that he had xrayed the break and that the bone erosion around the screw was not caused by faulty location of the screw, as contended by the plaintiff, the requirement that on medical questions the proper standard of measurement must be established by the testimony of medical experts (Murphy v. Little, 112 Ga. App. 517, 519 (145 SE2d 760)) has been met, and the plaintiff must of necessity offer some evidence, opinion or otherwise, or suffer judgment against him. It is true that the distinction between fact and opinion is a relative one. As stated in McCormick on Evidence, § 11, p. 22: "By the middle of the 1800’s the disparagement of 'mere opinion’ in the sense of a notion or conjecture not rooted in observation had emerged into a much more questionable canon of exclusion. This is the doctrine that witnesses generally give the 'facts’ and not their 'inferences, conclusions, or opinions’. This classic formula, based as it is on the assumption that 'fact’ and 'opinion’ stand in contrast and hence are readily distinguishable, has proven the clumsiest of all the tools furnished the judge for regulating the examination of witnesses. It is clumsy because its basic assumption is an illusion.” In the testimony of medical experts it is easy to identify certain types of opinion evidence, usually couched in the form of answers to hypothetical questions. But other testimony, such as a description of procedures in general use under a given set of circumstances, while it is expert testimony because in a field as to which the layman has no special knowledge, is still primarily a question of fact rather than opinion, and from this sort of testimony the jury must draw its own inference as to whether the defendant used that degree of care and skill which is ordinarily employed by the profession generally under the given set of circumstances. The jury may also, but not necessarily, be aided by the direct personal opinions of the same experts when directly called upon to evaluate a given procedure as good or bad. Malpractice cases almost always depend on expert medical testimony; they do not necessarily, however, depend on the personal opinion of the witness, no matter how expert he may be. Where the evidence presents no conflict, and there is nothing from which an inference of negligence can be drawn, the decision is for the [32]*32court and not the jury Wimpy v. Rogers, 58 Ga. App. 67 (197 SE 656); Shea v. Phillips, supra.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., and Eberhardt, J., concur. Pannell, Quillian, Whitman and Evans, JJ., dissent.

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Deen, Judge.

The general rule is that since the jury is not bound by opinion testimony, this type of evidence may never Serve as the basis for the grant of a summary judgment whether contradicted or not. Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393); Harrison v. Tuggle, 225 Ga. 211 (167 SE2d 395). It is here contended that all malpractice actions fall within this category. In Truluck v. Funderburk, 119 Ga. App. 734 (168 SE2d 657) the court questioned Jackson v. Tucker, 118 Ga. App. 693 (165 SE2d 466) where the grant of summary judgment to a defendant physician had been affirmed, and reversed the grant in the case under consideration because "the opinion testimony in the case sub judice would not be sufficient to authorize the granting of the defendant’s motion for summary judgment.” This was followed in Williams v. Melton, 120 Ga. App. 466 (171 SE2d 318) in a malpractice action involving a question of improper diagnosis, failure to follow conservative treatment, and failure to advise the patient of the risks involved in surgery. These cases illustrate situations where a jury would ultimately have to make a choice of inference as to negligence or non-negligence based on medical opinion evidence as to what procedures would constitute the exercise of reasonable care and skill in diagnosis and treatment, and thus would necessarily be dependent on the opinions of doctors as to what was proper, [30]*30and this regardless of the fact that we have many times said that the ultimate fact of diligence or negligence is for the jury and may not be the subject of direct testimony.

The present case raises the question of whether every malpractice action ultimately depends on jury inferences from opinions, so that it may be said that under no circumstances can summary judgment be granted a defendant physician because whether or not he was negligent in diagnosis or treatment depends on the opinions of other doctors, and the defendant cannot show that it would be impossible for the plaintiff at the trial to produce an expert witness in whose opinion the defendant was at fault. We do not apprehend this to be the law. Expert medical testimony may or may not be opinion testimony, and where a difference of opinion is shown the matter is of course for the jury. But no case has gone so far as to say that the defendant has the burden of showing that no contrary opinion may exist. On the contrary, in a malpractice trial the plaintiff must come forward with some evidence from which negligence may be inferred or he fails to make a prima facie case. Shea v. Phillips, 213 Ga. 269 (3) (98 SE2d 552). Mere failure to effect a cure is not of itself any evidence of negligence. Specht v. Gaines, 65 Ga. App. 782 (16 SE2d 507). "In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill and diligence. Ga. Northern Ry. Co. v. Ingram, 114 Ga. 639, 640 (40 SE 708); Akridge v. Noble, 114 Ga. 949, 958 (41 SE 78); Fincher v. Davis, 27 Ga. App. 494 (2) (108 SE 905); 21 RCL 406; Taylor, Med. Jur. 356. And in such a case the proof ordinarily required to overcome su.ch presumption of care, skill and diligence is that given by physicians or surgeons as expert witnesses. Pilgrim v. Landham, 63 Ga. App. 451 (4) (11 SE2d 420); Howell v. Jackson, 65 Ga. App. 422 (16 SE2d 45); 70 CJS 1006-1008, § 62; 41 AmJur 238, § 128.” Shea v. Phillips, supra, p. 271. Where the movant in summary judgment shows facts from which the only inference reasonably to be drawn supports the initial presumption that a proper degree of care and skill was used, or as in this particular case, that no negligence on the part of the physician was [31]*31the cause of the failure of the fractured bone ends to knit together, and where the defendant testified positively that he had xrayed the break and that the bone erosion around the screw was not caused by faulty location of the screw, as contended by the plaintiff, the requirement that on medical questions the proper standard of measurement must be established by the testimony of medical experts (Murphy v. Little, 112 Ga. App. 517, 519 (145 SE2d 760)) has been met, and the plaintiff must of necessity offer some evidence, opinion or otherwise, or suffer judgment against him. It is true that the distinction between fact and opinion is a relative one. As stated in McCormick on Evidence, § 11, p. 22: "By the middle of the 1800’s the disparagement of 'mere opinion’ in the sense of a notion or conjecture not rooted in observation had emerged into a much more questionable canon of exclusion. This is the doctrine that witnesses generally give the 'facts’ and not their 'inferences, conclusions, or opinions’. This classic formula, based as it is on the assumption that 'fact’ and 'opinion’ stand in contrast and hence are readily distinguishable, has proven the clumsiest of all the tools furnished the judge for regulating the examination of witnesses. It is clumsy because its basic assumption is an illusion.” In the testimony of medical experts it is easy to identify certain types of opinion evidence, usually couched in the form of answers to hypothetical questions. But other testimony, such as a description of procedures in general use under a given set of circumstances, while it is expert testimony because in a field as to which the layman has no special knowledge, is still primarily a question of fact rather than opinion, and from this sort of testimony the jury must draw its own inference as to whether the defendant used that degree of care and skill which is ordinarily employed by the profession generally under the given set of circumstances. The jury may also, but not necessarily, be aided by the direct personal opinions of the same experts when directly called upon to evaluate a given procedure as good or bad. Malpractice cases almost always depend on expert medical testimony; they do not necessarily, however, depend on the personal opinion of the witness, no matter how expert he may be. Where the evidence presents no conflict, and there is nothing from which an inference of negligence can be drawn, the decision is for the [32]*32court and not the jury Wimpy v. Rogers, 58 Ga. App. 67 (197 SE 656); Shea v. Phillips, supra.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., and Eberhardt, J., concur. Pannell, Quillian, Whitman and Evans, JJ., dissent.

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176 S.E.2d 196, 122 Ga. App. 27, 1970 Ga. App. LEXIS 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-crippen-gactapp-1970.

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