Washington v. City of Columbus

222 S.E.2d 583, 136 Ga. App. 682, 1975 Ga. App. LEXIS 1462

• Court: Court of Appeals of Georgia
• Decided: October 30, 1975
• Docket: 50504
• Status: Published

Opinions

Stolz, Judge.

This case involves an appeal from the Superior Court of Muscogee County following the trial judge’s direction of a verdict against the plaintiff and in favor of all defendants after the close of the plaintiffs evidence. The plaintiffs four-count complaint sought a total of $14,000,000 in damages against the defendants, plus costs and attorney fees, for alleged medical malpractice contended to háve resulted in the death of the plaintiffs 2-year-old son, for maintaining an inadequate program of instruction and supervision of interns, and for alteration of medical records alleged to have cast a suspicion on the plaintiff of murdering her son. The fourth count is in the alternative for damages arising from the alleged mutilation of the plaintiffs son’s body, assuming that the defendants’ actions did not cause or contribute to the child’s death.

The defendants are: Columbus, Georgia, also known as "City of Columbus, Georgia,” Dr. Richard Lowe, Dr. Edward Prieto, Dr. John W. Crosby, and Dr. Sam Miller.

The following evidence was adduced at the trial. In the late morning of January 31, 1971, following several days of illness (T. 219, 291), the plaintiffs 2-year-old son was found by his stepfather on the floor of the plaintiff’s bedroom lying motionless (T. 286, 287), apparently without a pulse (T. 287, 300) and not breathing (T. 287). The child did not respond to being called or shaken (T. 299-300). The child was given mouth-to-mouth resuscitation (T. 300) by his stepfather while the plaintiff went to a neighbor’s house to call an ambulance (T. 287). Upon arrival of the ambulance, the child was placed on its resuscitator (T. 228), administered cardiac massage (T. 289), and given mouth-to-mouth resuscitation (T. 288) while being carried to The Medical Center, Columbus, Georgia.

Upon the child’s arrival at the emergency room, defendant Dr. Crosby, an intern who was assigned to another department of the hospital, but who was at the moment in the emergency room seeing a patient of his (T. 7), observed the child and caused the Cardiac Respiratory Emergency Alarm to be sounded (T. 9) throughout the hospital, calling all available personnel for emergency assistance. Thereafter, at least four other physicians arrived from other sections of the hospital (T. 10). Those arriving included appellees, Drs. Miller and Prieto, and at least two other physicians not named as defendants in this suit (T. 10). These physicians, together with the assistance of numerous emergency-room nurses (T. 621), performed extensive resuscitative procedures in an attempt to revive the child. All persons present and observing the child during the time the child was in the emergency room, testified that the child was not breathing (T. 590, 594, 596), had no pulse or heartbeat (T. 590, 594, 596, 632), that his pupils were fixed and dilated, and that no blood was in the veins when a vein was incised (T. 64, 65, 76). In sum, there was a complete absence of vital signs. The emergency procedures utilized by these physicians included administering cardiac massage (T. 39), clearing the airways and inserting a trachial tube (T. 11, 623), injecting a stimulant into the child’s heart (T. 596, 612, 622), forced breathing (T. 64, 622), and attempting to inject fluids into the child’s body intravenously (T. 10, 64, 595-97). During the period of resuscitation, the EKG monitor to which the child was connected showed a continuous straight line, demonstrating that all of the emergency measures pursued did not restore a heartbeat (T. 594). At 12:50 p. m., after having failed to detect any heartbeat, breathing or other signs of life, all five of the physicians present mutually agreed that the child was dead, and the emergency procedures were ordered discontinued. (T. 11-12, 40, 42, 43, 587). At this point, all personnel administering treatment to the child left the room in which the body of the child was located with the exception of appellee Dr. Miller and two nurses (T. 580-81, 629). After noticing a distension of the child’s abdomen, Dr. Miller performed a four-quadrant tap on the child’s abdomen in an attempt to ascertain the cause of the distension and the cause of death of the child (T. 69, 76, 83). Doctor Miller’s plans to perform the taps were never discussed with any of the other physicians (T. 20, 46, 70) and were not performed as the result of the direction or suggestion of any other physicians. The following day the child’s body was taken to the hospital laboratory for an autopsy, which autopsy was performed by a hospital pathologist, Dr. Andres Franco (T. 380). Also present throughout most of the autopsy was Dr. Robert Shuffstall (T. 380), who was the appellant’s sole medical witness at the trial.

Dr. Shuffstall, a former pathologist with The Medical Center, testified in substance that his opinion, based upon the autopsy and his subsequent examination of the body and tissues and slides of tissues of the child, was that the child was alive when brought into the emergency room, that the cause of the child’s death was intra-abdominal hemorrhage secondary to needle punctures (T. 426), and that the needle punctures causing the hemorrhage were the taps performed by Dr. Miller. The autopsy report prepared by Dr. Franco (T. 924) and concurred in by Dr. Shuffstall (T. 461-463, 503, 506-507, 535), concluded:

"The post mortem findings are as noted in the gross and microscopic descriptions. Based upon these and subsequently received information, the following conclusions are made.

"1. The massive intra-abdominal and retro-peritoneal hemorrhages are unequivocally due to the four (4) quadrant abdominal taps.

" 2. The massiveness and extent of these hemorrhages could not possibly occur in the absence of life.

"3. The specific influence of this [sic] massive hemorrhages in bringing about death in a dying patient is purely conjecture. However, I believe this most likely, served as the final insult.

"4. The basic cause of death remains obscure.” Held:

1. Defendant Dr. Lowe is alleged to have been negligent in maintaining "an inadequate program of supervision, control, direction, and teaching of Dr. Sam Miller” (R. 43); and in that he, "in an effort to conceal the true facts, attempted to and did [through an unknown person] alter the medical records concerning . . . petitioner’s [deceased] minor child,” resulting in the plaintiffs coming under suspicion of having caused the death of her child, thus causing the plaintiff "great emotional trauma and stress.” (R. 44).

The record shows that defendant Dr. Lowe, the senior, full-time, emergency-room physician on the date of the child’s admission to the emergency room, was not present in the hospital due to the day being his "off day.” (T. 634). The plaintiff offered no evidence of any duty on the part of Dr. Lowe to train or supervise Dr. Miller. The plaintiff did prove, by the hospital administrator, Mr. Joseph Mitchell, that The Medical Center had a Director of Medical Education for interns (Dr. Cabaniss) and that he and two other full-time hospital physicians (none of the named defendants) were responsible for the hospital’s education program to interns. (T. 388, 686). The uncontroverted evidence shows that Dr. Lowe neither was in any way connected with Dr. Miller’s making the taps on the plaintiffs child nor knew of nor participated in any alteration of the medical records. (T. 22, 51, 648-649). Likewise, the record conclusively shows that neither Dr. Miller nor Dr. Crosby was assigned to the emergency room. The record fails to disclose any evidence of negligence by Dr. Lowe relating to the incident involving the plaintiffs child. The trial judge correctly granted the motion for directed verdict as to defendant Dr. Lowe.

2. (a) The plaintiff’s theory of liability against Dr. Prieto, another full-time physician employed by The Medical Center, was the same as that against Dr. Lowe — the failure to give any sort of training, instruction or supervision to any of the interns prior to the occurrence involving the plaintiffs child. Dr. Prieto was the senior physician present in the emergency room at the time of the admission of the plaintiffs child to The Medical Center and subsequent treatment in the emergency room. Negligence is alleged in his failure to properly supervise the emergency-room rescue effort and failure to detect life in the patient.

As mentioned in Division 1, the plaintiff offered no evidence of any duty or obligation on the part of Dr. Prieto to train and supervise Dr. Miller or any other physician. The plaintiff’s own uncontroverted evidence conclusively showed that three other full-time physicians (none of whom were defendants) had the responsibility for the intern education program. The plaintiffs evidence also showed that neither Dr. Miller nor Dr. Crosby, both interns, was assigned to the emergency room at the time in question. The former was assigned to surgery; the latter was assigned to medicine. Dr. Miller came to the emergency room in response to the Cardio-Respiratory Emergency (CRE) alarm.

(b) Likewise, the record is bare of any evidence that Dr. Prieto had any knowledge of, participated in, caused or ratified the alleged alteration of medical records.

(c) As to Dr. Prieto, the remaining issues relate to the performance of emergency medical procedures upon the plaintiffs child without first having made a diagnosis of the cause of the child’s condition and subsequently erroneously determining the child was dead and ceasing emergency treatment.

In our outline of the facts leading up to the child’s presence in the emergency room, we have attempted to set out sufficient facts to illustrate the child’s condition when he arrived at The Medical Center. The plaintiff’s evidence showed that the assistant chief of the rescue squad, who carried the child to the hospital, said, "I have been picking up people for thirteen years and there has never been a deader one than this.” (T. 677). The plaintiffs evidence showed the absence of breath (T. 590, 594, 596), pulse or heartbeat (T. 590, 594, 596, 632), circulation (T. 64-65, 76), as well as collapsed veins (T. 64-65, 76, 595). While in the emergency room, the plaintiffs child was given cardiac massage (T. 10, 39, 622), forced breathing (T. 64, 622), Epinephrine or adrenaline shot directly into the heart (T. 596, 612, 622), clearing airway (T. 11, 623), and cut down for medication (T. 10, 64, 595-597, 622). The EKG monitor showed no heartbeat. (T. 594).

"A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” Code Ann. § 84-924.

"A physician can not always effect a cure. He is 'only required to possess and exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing, and to use ordinary and reasonable care and diligence, and his best judgment, in the application of his skill to the case.’ Lake v. Baccus, 59 Ga. App. 656, 657 (2 SE2d 121). Jurors and courts do not know and are not permitted arbitrarily to say what are the proper methods of treating an ailment. This is a medical question. Hence, the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. 'The court and the jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill. They are not permitted to set up and use any arbitrary or .artificial standard of measurement that a jury may wish to apply.’ ” Howell v. Jackson, 65 Ga. App. 422, 423 (16 SE2d 45). See also Pilgrim v. Landham, 63 Ga. App. 451 (11 SE2d 420).

" '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 R. Co. v. Ingram, 114 Ga. 639, 640 (40 SE 708); Abridge v. Noble, 114 Ga. 949, 958 (41 SE 78); Fincher v. Davis, 27 Ga. App. 494 (2) (108 SE 905); 21 R. C. L. 406; Taylor, Med. Jur. 356. And in such a case the proof ordinarily required to overcome such 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 C. J. S. 1006-1008, § 62; 41 Am. Jur. 238, § 128.” Summerour v. Lee, 104 Ga. App. 73, 74 (2) (121 SE2d 80). See also Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552).

The plaintiff did not offer any evidence in the trial . court that any of the emergency room treatment was improperly administered or was not the proper treatment for the plaintiff’s child. The plaintiff offered no evidence as to the negligent omission of proper emergency room treatment. Essentially, the plaintiff contends that negligence existed because of the failure to detect life where life existed. This is simply not sufficient to carry the plaintiffs burden of proof. The doctrine of res ipsa loquitur does not apply in a malpractice case. Hayes v. Brown, 108 Ga. App. 360, 366 (3) (133 SE2d 102) and cits. The plaintiff offered no evidence that the diagnosis made as the child entered the emergency room was negligently arrived at. The plaintiff’s main witness, Dr. Shuffstall, in response to a hypothetical question encompassing the findings previously attributed to the plaintiff’s child’s condition (no breath, no pulse, no heartbeat, pupils fixed and dilated, collapsed veins), testified, "you are actually describing a dead child, are you not?” (T. 663). While Dr. Shuffstall testified as to the desirability of having an accurate diagnosis of the cause of a patient’s condition prior to treatment, he did not testify that the diagnosis made and the treatment given were not reasonable and proper under the circumstances. Again, negligence cannot be inferred simply because of an unsuccessful result. Branch v. Anderson, 47 Ga. App. 858, 860 (171 SE 771). There was no error in the direction of a verdict in favor of Dr. Prieto.

3. Defendant Dr. Crosby, an intern, was allegedly negligent in erroneously pronouncing the plaintiff’s child dead, when it was in fact alive; in failing to give appropriate medical treatment; in giving treatment which resulted in her child’s death; in altering medical records, causing the plaintiff to become under suspicion of murdering her son; and, in the alternative, being liable for the four abdominal quadrant taps performed by Dr. Miller on her child.

For the reasons set forth in Division 2 (a), (b) and (c), the trial judge correctly directed a verdict in favor of defendant Dr. Crosby.

4. Essentially, the plaintiff’s case against Dr. Miller is that he negligently made four quadrant taps in her son’s abdomen, which resulted in the child’s death; that there was no reason for quadrant taps being made; that the quadrant taps were made without authority or authorization; and, in the alternative, if it should be determined that the child was dead at the time the quadrant taps were made, defendant Dr. Miller would be responsible in damages for mutilating the dead body.

(a) We shall address ourselves to this last-mentioned claim initially. The evidence shows that the taps were performed by Dr. Miller using a twenty-gauge needle, one and one-half inches in length (T. 69). The police officers investigating the child’s death testified that they could not see the "puncture marks” (quadrant taps) when they viewed the child’s body in the emergency room. (T. 90, 129, 141). When the body was viewed the next day in the autopsy room, the officer testified that "the puncture marks were very visible and were made about as big as a matchstem or a toothpick or a little bit bigger.” (T. 90). The plaintiff did not see the taps (T. 229-230, 246) and in fact did not see her child’s body after he entered the emergency room until she saw the body at the funeral home (T. 230, 246). This was after the autopsy had been performed on the child’s body (which the plaintiff authorized. (T. 233). In Rushing v. Medical College of Ga., 4 Ga. App. 823 (62 SE 563), a surgeon made a slight incision into the cavity of the abdomen to discover the cause of death. This court held that such did not infringe the right of the deceased’s husband to have his wife’s corpse in the condition in which death left it where there was no removal of limb or organ, or cutting or mutilating of either. P. 825. The evidence presented in this case simply does not constitute mutiliation as a matter of law.

(b) The record does not disclose that Dr. Miller had any authorization to perform the quadrant taps on the plaintiffs child. The evidence conclusively shows that all the physicians and nurses who participated in the emergency room treatment, including Dr. Miller, agreed that the plaintiffs child was dead. (T. 40). Dr. Miller and two nurses remained in the emergency room. (T. 580-581, 629). In making the quadrant taps, Dr. Miller was not attempting to help the patient (T. 81), but "to see what was in the child’s abdomen.” (T. 83). The evidence showed that quadrant taps are a recognized medical procedure (T. 21, 642) and can be used for diagnostic and therapeutic purposes. (T. 71, 370). Normally, they are not dangerous. (T. 56). Quadrant taps are not designed to puncture the liver (except when used for liver biopsy purposes) or the intestines. (T. 53-55, 646). Dr. Miller testified that he could have inadvertently hit the liver in the performance of the puncture in the right upper quadrant. (T. 74). Dr. Shuffstall testified that in his opinion the quadrant taps punctured the liver and the intestines (T. 334, 349, 350, 387). Quadrant taps are generally regarded as a surgical procedure (T. 53). Dr. Miller had not been trained to make these taps by the members of the emergency room staff (T. 646), but probably had received such training at some point. (T. 645). The autopsy of the child’s body revealed massive hemorrhaging, the presence of leukocytic (repair) cells and blood clots in the punctured areas. (T. 400, 401, 402, 569). As previously mentioned, the autopsy report found that the massive hemorrhages could not possibly have occurred in the absence of life, but their specific influence in bringing about death in a dying patient is purely conjecture, most likely serving as "the final insult,” with the basic cause of death remaining obscure.

"[T]he court and the jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill. They are not permitted to set up and use any arbitrary or artificial standard of measurement that a jury may wish to apply. The proper standard of measurement is to be established by testimony of physicians; for it is a medical question.” Pilgrim v. Landham, 63 Ga. App. 451 (4), supra. The issue then becomes, whether the evidence in this case was sufficient to establish the medical standard. The defendant strongly insists that it was not. We disagree. Medical testimony, previously referred to, showed that the quadrant taps are a procedure usually performed by a surgeon and are not intended or designed to strike or puncture organs. From this testimony, the jury could conclude that Dr. Miller was negligent in making the quadrant taps on the plaintiffs child. In so ruling, we do not hold or intimate that Dr. Miller was negligent as a matter of law. Nor do we pass upon the consequences of his actions in the event negligence should be found to have existed. The trial judge erred in directing a verdict in favor of defendant Dr. Miller.

5. (a) The plaintiffs suit was initially brought against "City of Columbus, a consolidated government under the laws of the State of Georgia,” as a defendant. An answer was filed on behalf of such defendant, placing in issue the sufficiency of ante litem notice directed to the aforenamed defendant as well as the original complaint citing the proper name being "Columbus, Georgia.” The ante litem notice was addressed to "Hon. J. R. Allen, Mayor, City of Columbus, Muscogee County Courthouse, Office of Mayor, Columbus, Georgia, 31901.” The last paragraph of the notice stated that it was "submitted to you, the members of the consolidated counsel [sic], the City Attorney and the City Clerk ... as required by law.” The notice itself was sufficient to comply with Code Ann. § 69-308. Substantial compliance is all that is required. The purpose of the notice is to apprise the city of the claim in order that it may determine whether or not to adjust the claim without suit. Bush v. City of Albany, 125 Ga. App. 558, 560 (188 SE2d 245). In Bush, this court upheld an ante litem notice which omitted the name of the claimant, but was otherwise sufficient. The plaintiff subsequently amended her complaint, making the proper name correction. There is no evidence that "Columbus, Georgia” was in any way prejudiced by the improper designation in the plaintiffs complaint. Columbus, Georgia, was a proper party to the suit.

(b) In addition to the specific denials of the alleged negligent acts by employees of Columbus, Georgia (The Medical Center), the answer of Columbus, Georgia (the City) asserted the defense of governmental immunity. The city’s answer alleged that the operation of the hospital was a purely governmental function; that the hospital is not operated for the purpose of making money or as a paying institution, but for the benefit of persons within and without the corporate limits; and, that it has never been operated as a profit-making enterprise. These defenses were re-urged in answers to the amended complaint.

"In an action ex delicto brought against a municipality for injuries alleged to have been sustained in a hospital owned and operated by the municipality, the plaintiff has the burden of providing that the hospital was operated for the special or immediate profit of the municipality. In the absence of such proof a verdict in favor of the plaintiff can not be upheld.” City of Brunswick v. Barrett, 58 Ga. App. 792 (199 SE 901)." In Love v. City of Atlanta, 95 Ga. 129, 133 (22 SE 29) it is stated: 'The preservation of the public health is one of the duties that devolves upon the State as a sovereign power ... If the State delegate to a municipal corporation, either by general law or by particular statute, this power, and impose upon it within its limits the duty of taking such steps and such measures as may be necessary to the preservation of the public health, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a purely governmental function.’ In Watson v. City of Atlanta, 136 Ga. 370 (71 SE 664) it was held that the municipal authorities, in operating a non-profit public hospital, were so acting, the court stating: 'The principle of non-liability rests upon the broad ground that in the discharge of its purely governmental functions, a corporate body to which has been delegated a portion of the sovereign power, is not liable for torts committed in the discharge of such duties and in the execution of such powers.’ ” Hall v. Hospital Authority of Floyd County, 93 Ga. App. 319, 320 (91 SE2d 530).

There is no evidence in the record before us that would take the case out of the rule expressed in the cited authorities. Appellant urges that the city is liable under the theory of nuisance, and relies on Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141). This contention fails for two reasons. First: The plaintiffs case, as stated in her complaint as finally amended, is based on the negligence alleged in each of its four counts. The theory of nuisance is not mentioned. This latter theory is presented in this court for the first time on appeal. See Anderson v. State, 129 Ga. App. 1 (2) (198 SE2d 329) and cits. Second: Even if the issue of nuisance were properly before us, the record would not support such a position factually. In the Town of Ft. Oglethorpe case, supra, the evidence showed two weeks’ knowledge of the defective condition of the traffic light in question which caused numerous collisions (six on the date the plaintiffs case arose) without any effort by the town to correct the situation. The record in the case before us, which we have set out extensively, simply does not show the existence of a nuisance, knowledge of such by the city, and subsequent failure to correct. The trial judge was correct in directing a verdict in favor of defendant Columbus, Georgia.

Argued April 29, 1975 Decided October 30, 1975 Rehearing denied November 21, 1975 Glenville Haldi, R. Joseph Costanzo, William L. Tucker, for appellant. Lennie F. Davis, E. H. Polleys, Jr., Hatcher, Stubbs, Land, Hollis & Rothschild, A. J. Land, Albert W. Stubbs, Kelly, Champion, Denney & Pease, S. E. Kelly, Ernest Kirk, II, for appellees.

6. The plaintiffs fourth and fifth enumerations of error are controlled by our holdings in Divisions 1,2, and 5 of this opinion.

7. The trial judge correctly denied the plaintiffs motion for new trial as to defendants Lowe, Prieto, Crosby and Columbus, Georgia, but erroneously denied the motion for new trial as to defendant Miller.

Judgment affirmed in part and reversed in part.

Bell, C. J., Pannell, P. J., Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Evans, J., dissents in part.