Clemons v. Atlanta Neurological Institute, P.C.

384 S.E.2d 881, 192 Ga. App. 399, 1989 Ga. App. LEXIS 1041
CourtCourt of Appeals of Georgia
DecidedJune 28, 1989
DocketA89A0534
StatusPublished
Cited by12 cases

This text of 384 S.E.2d 881 (Clemons v. Atlanta Neurological Institute, P.C.) 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
Clemons v. Atlanta Neurological Institute, P.C., 384 S.E.2d 881, 192 Ga. App. 399, 1989 Ga. App. LEXIS 1041 (Ga. Ct. App. 1989).

Opinions

Beasley, Judge.

Mr. and Mrs. Clemons sued Atlanta Neurological Institute, P.C., alleging that Mr. Clemons sustained injuries due to the negligence of the doctor, its agent, in failing to protect Mr. Clemons from falling during a cervical myelogram. The Institute denied the material allegations, and the jury found in its favor. A motion for new trial was denied, and this appeal followed.

1. Plaintiffs contend the court erred in giving defendant’s fourth request to charge.

(a) Appellee makes the threshold assertion that plaintiffs waived objection made during the charge conference by not excepting to the charge after the jury was instructed.

We are not fully persuaded that it was not waived. OCGA § 5-5-24 (a); Sims v. Johnson, 185 Ga. App. 720, 721 (365 SE2d 532) (1988); Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 57 (2) (306 SE2d 54) (1983).

Moreover, the nature of the objection raised here is not entirely the same as that made at the charge conference. “[T]he specific grounds for objection to a charge control the extent of the appellate review of the charge.” Hurst, supra at 58. The complaint made here is that the charge allowed a lesser standard of care to be applied than the law requires, and that if abstractly correct, it was not adjusted to the evidence. The objection during the charge conference was only that it spoke of an unintended result and the myelogram did produce its intended result, that is, x-rays. This refers only to the latter ground; the former was not raised below.

Nevertheless, we will address the merits, because the trial court stated after the jury charge that he incorporated by reference the conference objections and rulings, and after recharge again took blanket note of the previous “exceptions.” By its “incorporation” statement, made unsolicited at a time when an invitation to state exceptions should have been extended, the court implied that it assumed the [400]*400parties would raise exceptions similar to the objections voiced during charge conference, and further that it rejected them. Thus the court created an awkward situation for which the party ought not be penalized by our refusal to address the substantive claim of error.

However, the procedure followed by the trial judge is not approved, because “ ‘[o]ne purpose of [requiring a party to reassert his objections to a given charge] is to afford the trial judge an opportunity to correct any errors in his instructions without the necessity of an appeal.’ Fleet Transport Co. v. Cooper, 126 Ga. App. 360, 361 (190 SE2d 629).” Hurst, supra at 58. Reflection after the charge is given allows reconsideration in a different context and also serves to articulate plainly the legal points and rulings which are later to be reviewed.

This case is distinguishable from Hurst in that there is a full record of the preinstruction charge conference and we are able to review plaintiffs’ specific objection.

(b) The charge at issue is that “[a] doctor is not an insurer and an unintended result does not raise even an inference of negligence.” The law does not require a retrial on account of this one sentence found in the instructions to the jury at the end of this six-day trial.

The doctor, defendant’s agent, testified on cross-examination during plaintiffs’ case-in-chief that Frank Clemons fainted and slumped to the floor during a myelogram procedure which the doctor was conducting. The table on which Clemons was lying with the SV2-inch needle inserted in his back pointing towards his feet had been slowly tilted vertically to allow the dye to run down into the sac. This was done because the dye had not dispersed while the table was at a 45-degree angle for some minutes. The table had a 6”-wide flat platform at the foot, and the patient, who was facing the table, was uncomfortable since he could not get his foot on the platform. The doctor permitted him to step back off the platform, as he indicated he wanted to do so, and lean against the table, remaining vertical. It is essential that he be comfortable during the procedure. It does not matter whether the patient stands on the platform or on the floor.

At least one technician was at his side, holding his arm. There may have been one on his other side, too. The doctor stepped back to look at the x-ray screen and was observing it when he heard a noise. He turned around and saw the patient slumped sideways, in the arms of one technician, who was then kneeling. Another technician was also kneeling over the patient, who had fainted after about two minutes of standing.

When he saw that the patient had fainted, the doctor was frightened because fainting is serious as it could indicate a heart attack or severe blood pressure. The doctor immediately pulled the needle out altogether and the three got the patient back lying flat on the table, [401]*401where the doctor shook him and he regained consciousness after about four or five seconds. While the patient was standing and before he fainted, the doctor had twice asked him if he felt well, and the patient had both times said he did and nodded “yes.” The doctor looked at him each time and observed that he looked perfectly alert and in good control of his faculties.

The doctor testified that he had done close to 3,000 myelograms and that of these, three patients had fainted, Mr. Clemons being the second.

In its charge to the jury, the court fully and clearly instructed the jury on the duty of a medical practitioner, the standard of care required, and how it was to be measured. It instructed them how to apply the standard and reach a verdict as to liability or the absence of the same. It instructed that the standard is presumed to have been met but is rebuttable. It instructed that a rebuttable presumption is “merely a circumstantial inference selected by the law as the most reasonable . . . rational hypothesis . . . .” It explained how presumptions are to be employed.

The allegedly offensive instruction is found in the above-described context, following the sentence first quoted:

“Ladies and gentlemen of the jury, I charge you that it is the general rule in this state that laymen, even jurors and courts, are not permitted to say what is proper medical and surgical treatment, for that is a medical question. A doctor is not an insurer and an unintended result does not raise even an inference of negligence.”

This last sentence cannot be examined in isolation. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). “It is well settled that the mere fact that the trial judge interjects into his charge some statement inapplicable to the issues of the case does not always require a reversal. Where such an instruction has been given, the reviewing court looks to the whole record to see if the complaining party in fact suffered prejudice. If so, a new trial will result; otherwise not.” Bonita Theatre v. Bridges, 31 Ga. App. 798, 806 (122 SE 255) (1924), applied in Blount v. Moore, 159 Ga. App. 80, 82-83 (1) (282 SE2d 720) (1981).

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Clemons v. Atlanta Neurological Institute, P.C.
384 S.E.2d 881 (Court of Appeals of Georgia, 1989)

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Bluebook (online)
384 S.E.2d 881, 192 Ga. App. 399, 1989 Ga. App. LEXIS 1041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemons-v-atlanta-neurological-institute-pc-gactapp-1989.