Summary
involving breach of contract suit against physician
Summary of this case from Atakpa v. Perimeter Ob-Gyn Associates, P.C.Opinion
33467.
DECIDED MARCH 15, 1951.
Suit on account; from Fulton Civil Court — Appellate Division. December 29, 1950.
Clarke Anderson, for plaintiff in error.
Marvin G. Russell, Turner Paschal, Talley Kirkland, contra.
( a) Where the plaintiffs, who are doctors composing a clinic, entered into an agreement with the defendant to provide the defendant's wife with prenatal, delivery, and postnatal care, which contract was general in nature, it must be assumed that the contract contemplated that amount and quality of attention and skill which would ordinarily be rendered by a qualified and competent physician. Where the only complaint is that, due to inattention, drugs were not administered to the mother as soon as they should have been, this is a subject for expert testimony, without which the court cannot hold, under the circumstances here set out, that the doctors breached their contract with the defendant to supply such care and skill as the circumstances required.
( b) Where a contract is entire and one party thereto breaches the same, the other may usually treat the contract as rescinded and be absolved from further performance; but he cannot do so after waiver of his right by continuing to accept benefits arising under the contract after knowledge of its breach.
DECIDED MARCH 15, 1951.
Doctors R. A. Bartholomew, E. D. Colvin, H. W. Grimes Jr., and J. S. Fish, as an Obstetric Group, brought suit against William C. Cartwright in the Civil Court of Fulton County on an account stated in the sum of $120 plus interest. The defendant answered, admitting a promise to pay the amount for which suit was brought, but alleged that the plaintiffs' failure to perform their obligations under the contract resulted in damage to the defendant in more than the balance of the account due, for which reason the defendant is relieved from all liability. The answer further set up: that the terms of the contract were that the plaintiffs agreed to give the defendant's wife prenatal care, attend the birth of the child, deliver the child, and give both mother and child postnatal care for six weeks following the birth of the child; that they agreed to use the "twilight sleep method," the same being the use of certain drugs to render the mother unconscious of pain, such drugs to be administered when labor pains began to occur at three-minute intervals; that the doctor on duty when the defendant's wife entered the hospital would take charge and deliver the child; that at the time the defendant's wife entered the hospital Dr. Grimes was on duty; that, instead of remaining on duty to deliver the child, he went off duty and was replaced by Dr. Fish; that Dr. Fish left shortly after 1:15 p. m., and did not return until after the birth of the child; that from 2 p. m., when labor pains began to occur at three-minute intervals, until 4:20 p. m., no doctor was on duty to administer the drugs as agreed; that the defendant's wife suffered excruciating pain needlessly as a result for a period of almost three hours; and that for this reason the defendant is not indebted to the plaintiffs in any further amount.
The defendant testified as to the terms of the agreement made with Dr. Grimes as follows: "They preferred a method using drugs, and I asked him at the time if that was the twilight-sleep method. He was rather hesitant about saying it was the twilight-sleep method, but he never did give me any other understanding than that it was similar to the twilight-sleep method and the drugs that were used in the twilight-sleep method. Therefore it was my assumption drugs would be used, and in my mind it was the twilight-sleep method that would be used. He did say paraldehyde and demerol would be used. He didn't go into great detail of the delivery at that time. . . I was told, as there were four doctors in the Bartholomew group, it was possible to have a fresh doctor on call at all times, not over-tired from overwork. . . At that time I was told that their method of selection of one of the four doctors was determined by the time my wife entered the hospital. The doctor on duty at that time, I was told, would take over the care of my wife and see it right on through. The delivery and post-operative care, the whole case would be in his hands at that time."
The defendant further testified: that Mrs. Cartwright entered the hospital at 4:30 a. m., December 21, 1948; that Dr. Grimes was on duty at that time; that this doctor then told the defendant that, when birth pains occurred at three-minute intervals, his wife would be given paraldehyde and would thereafter suffer no further pain; that Grimes took care of his wife until 10 a. m., but then left the hospital, and Dr. Fish came on duty; that at 1:15 Dr. Fish left; that at approximately 2 p. m. Mrs. Cartwright began suffering pains at three-minute intervals; that the defendant could not find any of the clinic doctors; that he called Dr. Grimes at the clinic at about 3:50, but was informed that Dr. Colvin was supposed to come on duty, and that he, Grimes, could not take over Colvin's case. To this the defendant replied that he had contracted for four doctors, and not with any one of them, and he said he would try to get someone to come over; that Dr. Bartholomew arrived at 4:20, and the defendant met him in the hall and urged him to come to his wife's bedside; that he did so, that drugs were thereafter administered; that the child was born at 5:38 p. m.; that the defendant's wife remained under the care of the clinic during the five-day period she was in the hospital; but that afterwards, due to the altercation, the defendant engaged another doctor for the postnatal treatment. The original agreement had been for a sum of $175 plus $15 for circumcision, which was performed, making a total of $190. $70 of this amount had been paid, leaving a balance of $120.
At the conclusion of the evidence the judge directed a verdict in favor of the plaintiffs. This judgment was affirmed by the Appellate Division of the Civil Court of Fulton County, which judgment is assigned as error.
It is apparent from the defendant's testimony that the original agreement between the parties, made at the time he went to the clinic with his wife and agreed to pay a total of $190, was an agreement in general terms that the wife would receive prenatal, delivery, and postnatal care, that drugs would be used to lighten her pain, and that the doctors would rotate so that one not overtired from long work would be on call at all times. The instruction that drugs would be administered when the pains reached three-minute intervals was not expressly contemplated in the original agreement, the defendant testifying that he was informed of this after his wife was admitted to the hospital several weeks later. Therefore, if this statement be construed to be a promise to begin the administration of drugs at that particular time, such a promise would of course not be a part of the contract and therefore nudum pactum. From the defendant's own testimony, it appears that the agreement contemplated generally that the expectant mother would receive adequate care and pain-relieving drugs; and it would seem that whether the care and drugs she actually received under the circumstances were adequate would be a matter for expert testimony, of which there was none. See Pilgrim v. Landham, 63 Ga. App. 451 (4) ( 11 S.E.2d, 420). It does appear that the defendant's wife suffered labor pains of at least three-minute intervals between 2 p. m. and 4:20 p. m., during which time no doctor was in attendance, and no pain-relieving drugs were administered. The damage alleged to have resulted from this was the pain and suffering of the wife during that period. Without entering into a discussion as to whether this would be a proper subject matter in an action to which the husband only is a party, it does appear that there was no guarantee that all or any given amount of pain would be relieved or that all pain would be relieved during any particular period.
It is apparent from its terms that the agreement constituted an entire contract for a given price, the treatment to extend from the time of the agreement until six weeks after birth. So far as the testimony shows, this agreement was fulfilled by the plaintiffs, insofar as they were allowed to do so, for all of this period except two and one-half hours on the afternoon of the child's birth. It is true that the defendant's wife received only five days of the agreed six-weeks post-natal treatment, but this was due to the defendant's action in removing his wife and child from the care of the clinic when they left the hospital. The contract was entire and not severable. See Burns v. Mitchell, 55 Ga. App. 862 ( 191 S.E. 870). The defendant contends that, this being so, the plaintiffs could not recover unless they performed all of the obligations imposed upon them under the terms of the contract, and that they did not perform all of its terms, in that for the two-and-a-half-hour period in question, at a time when his wife most needed the services of the doctors, she did not receive them. In support of this contention, he cites Hill v. Balkcom, 79 Ga. 444 ( 5 S.E. 200), and Dolan v. Lifsey, 19 Ga. App. 518 ( 91 S.E. 913). In these cases the party seeking to enforce the contract put an end to it by ceasing to fulfill his own obligations and the contract was thereupon dissolved. In the instant case, granting that the failure of the doctors to appear during the time in question constituted a breach of the agreement, and that the defendant at that time could have refused all further services from them, procured another physician, and treated the contract as being at an end ( Sinclair Refining Co. v. Davis, 47 Ga. App. 601 (1), 171 S.E. 150), he did not do so, but accepted the doctors' services at 4:20 that afternoon, through the delivery of the child, and for five days thereafter, not releasing them until after the mother had left the hospital. In Broxton v. Nelson, 103 Ga. 327, 330 ( 30 S.E. 38) the court, quoting Story on Contracts, states as follows: "The entire fulfillment of the promise by either, in the absence of any agreement to the contrary, or waiver, is a condition precedent to the fulfillment of any part of the promise by the other." In McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848 (1) ( 66 S.E. 146), it is held as follows: "Where a contract prescribes conditions precedent to a party's right to set up a cause of action or defense, and the terms are reasonable, the opposite party may usually successfully plead a failure to comply with the conditions, as a reason for the court's refusal to entertain the action or defense. But forfeiture of rights is not favored, and the courts will readily seize upon circumstances arising in the subsequent conduct or transactions of the parties and imply a waiver." Where a defendant accepts benefits arising under the contract, after discovery of the alleged breach, this will constitute a waiver of such breach. Eaves v. Georgian Co., 47 Ga. App. 37 (4) ( 169 S.E. 519); Southern Savings Bank v. Dickey, 58 Ga. App. 718 ( 199 S.E. 546). While it is easily understandable that the defendant would not wish to employ a new physician on the very day his wife was in labor, nevertheless his conduct in retaining them throughout her subsequent stay in the hospital, and in having them proceed with the minor operation on the infant, constituted a waiver of his right to rely upon such breach for the purpose of rescinding the entire contract.
The parties sued upon an express contract, and stipulated at the trial of the case that no testimony as to the range of charges or fees would be introduced, but that the case would be submitted on the basis of a verdict of all or nothing. For this reason, the question of a fee based on quantum meruit, and the question of a reduction of fee based on partial failure of consideration, are not before us.
The Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial court directing a verdict in favor of the plaintiffs.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.