AKRIDGE v. NOBLE

Action for damages. Before Judge Lumpkin. Fulton superior court. July 5, 1901.

The nature of the case is stated in the opinion of the court. The motion for a new trial contained the following, beside the general grounds:

The court erred in the following charge to the jury: “ When you were empaneled you took an oath to well and truly try each cause submitted to you during the present service, and a true verdict to make according to the law as given you in charge and the opinion you entertain of the evidence produced to you, to the best of your skill and knowledge, without favor or affection to either party. You are here to try this case under the law and the evidence produced before you. You should look at the evidence, and, applying the law to it, seek to reach a verdict which shall speak the truth of the ease, and shall be in accordance with, the law and evidence, influenced by no favor or affection for either party. . . The law as given you in charge from the bench by the court you are bound to receive as being a correct exposition of the law. The jury are not the judges of the law in a civil case in any such sense as to authorize them to set up any opinion on their part as to what the law is, in conflict with or as overriding the law as given them from the bench. You receive the law as charged you from the bench as being correct law. The facts on any contested issues of fact you determine from the evidence. The court charges you the law which he deems apposite and appropriate to give you in charge; but he does not express or intimate to you, and does not intend throughout this charge to express or intimate to you, any opinion as to what are the facts on any question of contested facts or on any issue of fact. The facts you must determine from the evidence; the law you will receive from the court.” The movant contends that this part of the charge was calculated to intimidate and embarrass the jury, and not to leave them free to consider the case in the light of the evidence and law.

The court erred iu the following charge: “ If you believe from the evidence that the pad was in fact so left in her body, then you \" would determine whether or not it was so left by reason of the want of due care and skill — of the exercise of due care and skill on the part of the defendant. What duty as to diligence rests upon the surgeon, in connection with cases under his charge ? Ifhe answer is this : A person professing to practice surgery must bring to tbe exercise of his profession a reasonable degree of care and skill. Any injury resulting from the want of such care and skill will be a tort for which a recovery may be had.” Under this charge the jury was compelled to find for the defendant unless they found under the evidence that the defendant was lacking in both care and skill. Plaintiff’s counsel did say in argument that he did not attack the general professional skill of the defendant, or his diagnosis of the case, but contended that defendant was liable on account of his failure to perform his duty as a surgeon on this occasion. The charge was inapplicable to the issue on trial.

The court charged: “ The defendant as a surgeon owed the plaintiff the duty of exercising reasonable care and skill in performing the operation described in the testimony, including all parts of the operation which he was performing, and which fell within its performance. The measure of skill and care which the law required him to have and use was that possessed and used by average surgeons in the general neighborhood in performing similar operations. The jury would not be authorized to substitute for this measure any arbitrary standard of skill or care. Look at the evidence, giving due consideration to all the facts and circumstances disclosed by it, and determine from it whether or not the defendant exercised due care and skill in the performance of the operation which is involved in this controversy, including in the term ‘the performance of the operation’ the use and handling of the sponges or pads. On this part of the case the question is, did or did he not use such reasonable care and skill ? The court can not tell you what reasonable care and skill would require under any particular set of circumstances. He can only give you in charge the meaning of reasonable care and skill as the law defines it, and the test which the law give's for determining reasonable care and skill; but the jury must look at the facts and circumstances and determine from them whether or not the defendant did use such reasonable care and skill.” Error is specified, for the reason stated in the preceding ground, and because the removal of the pad or sponge from the body of a patient is not a part of the operation and does not require’ any surgical skill, and because the issue was not one of skill on the part of the defendant in the performance of the operation, but negligence in not removing the pad or sponge after the operation.

The court erred in the following charge: “ In determining the question of reasonable care and skill, you may consider the place of the operation, the circumstances surrounding it, the situation of the defendant with respect to the operation, and all the facts and circumstances which throw light upon the question; the ultimate question as to this branch of the case being, did he or did he not use reasonable care and skill in the performance of the operation?” Error, because these considerations had nothing to do with whether or not the defendant was negligent in leaving the sponge or pad in the body. It was the duty of the defendant to remove the sponges or pads before closing the incision,and he could not shift that duty or the responsibility for failing to remove them.

The court erred in refusing to charge as follows: “ Any custom or Tule of practice of medicine or surgery, at the Grady Hospital or in this general community, must be reasonable, and must be in accordance with a reasonable degree of skill, diligence, caution, and care in treating and operating upon patients. It is for the jury to determine the reasonableness of such custom or rule of practice.”

In overruling the motion the judge said, in part: “The plaintiff was a charity patient, on whom an operation was performed at the Grady Hospital, a hospital conducted by the City of Atlanta. The city controlled the place, furnished all the preparations, room, operating nurse, etc. Dr. Noble simply went in and performed operations there free of charge. The plaintiff alleged that an operation had been performed without the exercise of due care and skill, resulting in injury to her, and sued both Dr. Noble and the city. Later she dismissed the case as to the city, and proceeded against Dr. Noble alone. Ordinarily ‘a person professing to practice surgery or the administering of medicine for a 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 will be a tort for which a recovery may be had.’ Code, § 3831. This is the measure prescribed in this State, where a surgeon performs operations for pay. Certainly it can not be more stringent where he goes to a charity hospital and operates without charge. But inasmuch as human life may be at stake, I am of the opinion that, whether he charges or not, he himself is bound to have and exercise a reasonable degree of care and skill. Where he undertakes to operate for pay, it would doubtless be incumbent on him to provide suitable instruments, assistants, help (whether called nurse or not), and generally to exercise reasonable skill and care in the whole matter. How far he wmuld be responsible for negligence of an assistant furnished by him need not be decided now. Clearly he would not be responsible for any negligence of assistants in which he took no part, or for accessories, etc., where neither assistants nor accessories were furnished by him but by a free hospital, and where this was known to the patient. In such a case he would be responsible for any failure to exercise a reasonable degree of care and skill himself. Movant’s counsel in this motion for new trial seems to think that the charge placed upon them the burden of showing a failure to exercise reasonable care and also a failure to exercise reasonable skill. But the charge will show that this is a mistake. On -the contrary, the burden was placed on the surgeon to exercise a reasonable degree of both care and skill, not on plaintiff to show a failure in both respects. . . Further, in the course of the trial, plaintiff’s counsel produced as authority and read from Thomas on Negligence, page 1107. On that page will be found the following: ‘Degree of skill and care required. — In the absence of a special contract otherwise providing, a physician and surgeon, whether acting gratuitously or otherwise (post, page 1109), is required to possess and use reasonable care and skill, and the same is measured by the degree of skill possessed, and skill and care exercised by the average of his profession in the locality of his residence, regard being had to the advanced state of the profession at the time (pp. 1108 —1114). It'has been held that it is a material issue, whether a surgeon is sldllf ul in his profession, as well as whether he applied his skill in the particular case. Carpenter v. Blake, 50 N.T. 696; 60 Barb. 488 (p. 1108); Mayo v. Wright, 63 Mich. 32 (p. 1113). But mere possession of skill is not sufficient, unless due care be taken to exercise it in the case in hand (pp. 1111, 1112). Skill, how tested. —The sldllfulness of a physician should be tested by the recognized rules and doctrines of his own and not those of other schools (post,pp. 1114, 1115). It has been held, however, that clairvoyant physicians are adjudged by the skill required of a physician of good standing in the community (p. 1115). Where a physician departs from the settled course of practice, it may be a question for a jury whether this would not constitute negligence.’ ” . .

“Movant’s counsel now seek to draw some sort of distinction between the operation by the surgeon and his handling of the sponges- or cloths placed inside the patient’s body while the actual cutting proceeds, to catch the flow of blood or pus. They claim that the handling of these sponges or gauze strips was no part of the operation at all; that the rule of care and skill required of the surgeon in operating had no application to the case; and that the charge was-error. Frankly, I fail to perceive the force of this point. Dr. Noble undertook to do something as a surgeon. The doing of that-something involved, the putting of pads or sponges inside the body of the patient, as well as the actual cutting open and sewing up. After the cutting and cleansing was over and the time to close the wound had arrived, the sponges were to be removed. If he did not undertake to find and remove them as a surgeon, in what capacity was he acting ? Reasonable or ordinary care is not an absolute' term, and has no arbitrary meaning. If the care and skill-required of him in doing this thing was not measured by the reasonable care and skill of a surgeon, what was the measure of it ? Was it that-of an upholsterer stuffing or removing the stuffing of furniture ? or that of a railroad employee operating a train ? or that of a master toward his servant ? Or what was it ? It may seem at first blush (as perhaps it has impressed counsel) that if the surgeon put the-sponges inside of a patient’s body, care would require him to take them all out. But when we remember that abdominal surgery, as-now practiced, is largely a matter of a few years’ growth, that until quite a recent period it was considered that an incision or wound which penetrated the abdominal cavity was certainly fatal, and that-now such operations are very frequently performed; that the surgeon must make a small incision, not over a few inches in length,, must insert and properly place a number of small sponges or gauze pads, sometimes as many as a dozen (as the evidence discloses),, must, partly by sight and partly by feeling, reach the seat of the trouble and cut away the necessary parts, must tie up the loose ends, remove the sponges, and close and sew up the opening, arranging for proper drainage, and all this with the utmost promptness,, for sometimes a slight delay may mean death, circumstances and surroundings must be considered in measuring duty. Some of the witnesses in this case testified that, with the surgeon’s mind and attention riveted on the delicate and dangerous work before him, it was very difficult, if not impossible, to keep in his memory the exact number and placing of these sponges, that he must needs rely somewhat for the count upon another, that he exercised such care and skill as he could in. finding and removing the sponges, \"and then had the operating nurse to aid him by keeping count of them; and one or more said that if the surgeon should stop at the critical moment to count sponges before closing the wound, the patient might die. This system may be imperfect. What system is not ? But certainly it would never do to turn juries loose to fix some arbitrary standard — each jury for itself — of how abdominal surgery ought to be performed, regardless of how the surgeons themselves had found it safest and best to do; nor, which would amount to the same thing, to say whether a method of performing an operation, even if universally adopted by the most skillful (surgeons, seems reasonable to the jurors’ minds or not. This is especially true where the practice of surgery is permitted only to those who have studied the recognized methods, hav§ had certain training, and have been found to be sufficiently proficient, and have been licensed. If the practice of surgery were thrown open to everybody to act on his general judgment, without skill or training, perhaps the rule might be different. The average juror might, in such a supposed state of affairs (if it can be supposed) be able to judge of the mode of performing operations as well as the practitioner of whom no training, skill, or knowledge was required. If all surgeons had perfect reason and perfect skill, there should be no failures. Medical and surgical science must advance gradually. It has its errors and its failings. But it would hardly do for every doctor who gives a prescription, or every surgeon who performs an operation, to do so at the risk that if the result is not good, a jury may mulct him in damages, if they should think the method of treatment or of conduct was unreasonable, although it was the well-recognized and universal method.

“ Plaintiff’s attorneys evidently thought, when they brought the suit, that the use of the sponges or pads was a part of the operation. Their declaration, is based on that idea. They no doubt then had before them the section of code above referred to, which does not say that the surgeon shall bring to a certain operation or part of an operation a reasonable degree of care and skill, but that he shall bring this to ‘tjie exercise of his profession.’ If Dr. Noble was not exercising his profession in the handling and using, putting in and placing, and taking out of these pads, as well as in the cutting and sewing up, it would be a subject of some interest to know what he was doing. Even if the law had limited the rule to the ‘operation,’ does not that term include more than merely making an incision and closing it? Are not the handling of instruments, placing the patient, use of bandages or pads, removal of necessary parts, replacing them in position, placing ligatures, cleansing the wound, closing it, etc., all parts of the operation ? Suppose the surgeon had left a piece of the thread used in sewing up the wound in it, would it be said, that was no part of the operation; it was simply leaving a string ? ”

cited Civil Code, § 3831; Century Diet, definition of “skill”; 75 N. Y. 12; 39 Mo. App. 233; 78 Eed. 442; 67 Minn. 46, s. c. 69 N. W. 480; 84 Me. 497'; 4 Fost. & F. 977; 101 Iowa, 629, s. c. 37 L. E. A. 830, and notes; 166 Mass. 585; 90 Mo. 487; 60 Barb. 488; 6 Kan. 46; 36 Neb. 794; 100 Pa. St. 127; 4 N. Y. St. E. 876; 47 N. Y. St. E. 483, s. c. 17 N Y.' Supp. 131; 45 N Y. St. E. 165, s. c. 17 N Y. Supp. 815 ; 136 N. Y. 1; 71 Ga. 424 (14); 87 Ga. 378 (2); 25 App. Div. (N Y.) 522; 111 Ga. 206.

cited Civil Code, § 3831; 114 Ga. 639; 30 Ga. 245 ; Thomas, Neg. 1107 et seq.; 95 Ind. 379; 23 111. 385; 17 Ohio St. 253; 75 Minn. 255, s. c. 77 N W. 813 ; 3 Oregon, 139.