Opinion
36128.
DECIDED JULY 9, 1956. REHEARING DENIED JULY 27, 1956.
Tort; malpractice. Before Judge McWhorter. Chatham Superior Court. January 9, 1956.
Myrick Myrick, Dunaway Embry, for plaintiff in error.
Pierce Ranitz, Edward H. Lee, contra.
The court did not err in overruling the demurrers both general and special to the petition, including the amendments thereto.
DECIDED JULY 9, 1956 — REHEARING DENIED JULY 27, 1956.
A. T. Baker filed an action for damages against Dr. Paul Nelson Fleming for alleged malpractice. The defendant filed general and special demurrers to the original petition, whereupon the plaintiff filed an amendment to his petition. The defendant then renewed the general and special demurrers. Thereafter the plaintiff filed a second amendment to his petition and then filed as a third amendment an almost entirely new petition consolidating all of the previous amendments to the original petition. To the third amended petition the defendant again renewed his general and special demurrers. The plaintiff again amended, this being the fourth amendment. To this amendment the defendant again renewed the general and special demurrers. The court heard argument on the demurrers and after taking the case under consideration rendered an opinion and entered an order overruling the general demurrers of the defendant as well as all of the special demurrers to the original petition and to the petition as amended. The case is here assigning error on the overruling of the demurrers.
After all the amendments were in and argument was had, and before the final judgment of the court thereon, counsel for the plaintiff redrafted the petition as amended. The bill of exceptions states: "That the court took the case under advisement, and on or about the 9th day of January, 1956, at and during said December term 1955 of said court, rendered an opinion and entered an order overruling the general demurrer of the defendant, as well as overruling all of the special demurrers of the defendant to the original petition and to the petition as amended and to the final redraft of the petition ordered filed by the court, to which order and judgment of the court the defendant then and there excepted and assigned error on the same . . ." The court passed the following order: "In the opinion of the court the original petition set out a cause of action good as against general demurrer. The petition has been three times amended and the general demurrer three times renewed. The amendment amplified and specified in greater detail the alleged negligence of the original petition. Therefore, the original general demurrers and the renewed general demurrers to the petition as amended are hereby overruled.
"The special demurrers to the petition were renewed to the petition as amended. The first two amendments are as lengthy as the original petition. Plaintiff's counsel, for the sake of clarity, has redrafted his petition, including in the redraft the various amendments. This redraft is ordered filed by the court in lieu of the original petition as amended. The original and renewed special demurrers of the defendant are considered as being against the redrafted petition.
"Unquestionably, originally some of the defendant's special demurrers were good. Counsel for both parties, in consideration of the court, requested that consideration of the special demurrers be withheld until the amendments contemplated by the plaintiff were made. It now seems to the court that the petition as finally redrafted meets the objections as raised by the special demurrers, even the special demurrer to paragraphs 20 and 21 of the original petition. While it is true that neither the plaintiff nor his wife can testify as to what they read in the book, that being hearsay, nevertheless, the showing of the book to them by the defendant at least raises a suspicion that there might be a possibility of cataracts. This suspicion, according to the allegation of the petition, was subsequently confirmed by the diagnosis of their physician. It would seem, therefore, that to this extent the plaintiff should be allowed to prove what occurred. The situation is not analogous to a report made by a third party which arouses suspicion and leads to an inquiry. While the details of the report cannot be given, the witness saw that from the report they made a subsequent investigation and discovered certain facts of their own knowledge. In the case of a faulty diagnosis, a patient of a physician must have planted in his mind a doubt, either by his failure to get well or by criticism of other people, and the fact that it is created by the physician's own conduct should not, in the court's opinion, render it inadmissible. Therefore, paragraph 20, taken with the rest of the petition, should not be stricken on demurrer. Paragraph 21 has been so redrafted as to meet any objection. Therefore, the court overrules all of the special demurrers of the defendant to the original petition and to the petition as amended, and to the final redraft of the petition ordered filed by the court."
The petition as finally amended is substantially as follows: In paragraph 1 jurisdiction is alleged. Paragraph 2 alleges that the defendant was and is a physician and surgeon engaged in the practice of his profession. Paragraph 3 alleges that the plaintiff was under the professional care of Dr. G. W. Goldenstar, and sets out certain things done and certain diagnoses made. Paragraph 4 alleges that on March 13, 1953, the defendant set himself out as a specialist in eye surgery and as competent to perform an operation for the removal of a portion of the iris of the eye. Paragraph 20 alleges: "Several days after the defendant had operated on the plaintiff's right eye . . . your petitioner and his wife were together at the defendant's office for the purpose of having drops put into the plaintiff's eyes, and while they waited the defendant took from his bookcase a certain book, the name and title of which is unknown to petitioner but is well known to the defendant, and the defendant showed the plaintiff's wife from said book certain illustrations and readings relating to the operation which the defendant had performed upon the petitioner's eyes, and the defendant then left the room and the plaintiff's wife continued to read from said book. Immediately upon the defendant's return to the room your petitioner inquired of the defendant whether cataracts would result from the operation which the defendant had performed upon the plaintiff's eyes, and the defendant assured the plaintiff that he would not have to worry because he didn't have any cataracts."
Paragraph 21 reads: "Your petitioner did not mention cataracts to the defendant until after he had called upon Dr. W. W. Buckhaults. . . Between the time of examination of petitioner by Dr. Buckhaults and the time petitioner ceased going to the defendant for treatment, petitioner asked the defendant on several occasions whether he had cataracts, — the exact dates and numbers of said inquiries being now unknown to the plaintiff, — which should be known to the defendant by reference to his records, — and on which said inquiry the defendant assured your petitioner that he did not have cataracts."
Other paragraphs allege that the defendant recommended operation on the eye, and that the defendant should have known that such operation was not necessary; that cocaine was used as an anesthetic in the performance of the operation; that such procedure was improper; that such improper procedure resulted in a narrow angle configuration; that the recommending and performing of the operation increased the chances of formation of cataracts on the plaintiff's eyes, and that such should have been known to the defendant; that the use of cocaine on the unaffected eye caused an acute glaucoma in the eye, which could have been prevented by the use of proper anesthetic or by the use of certain drugs counteracting the cocaine anesthetic; that the defendant failed to recognize the glaucoma and failed to treat the plaintiff for same; that the defendant failed to recognize and treat the traumatic or operative iritis that developed in the eyes of the plaintiff after the operation, which caused adhesions, thus permanently immobilizing plaintiff's irises and made later cataract extraction more hazardous; that the defendant failed to recognize that the plaintiff had cataracts; that the defendant scraped the plaintiff's eye with an instrument and left lint in the eye; that the defendant failed to care properly for the plaintiff after the operation; that the plaintiff has had expenses as set out, has suffered and will continue to suffer permanent injury to the eyes due to the negligence of the defendant.
When this case was filed in this court we noted that the redrafted petition, which the court mentioned in his judgment and which was also mentioned in defendant's bill of exceptions as hereinabove set out, was not with the original record. The clerk of this court was directed to take this matter up with the clerk of the trial court. This court was notified that the clerk of the trial court could not find the original of the redrafted petition. Later on, on April 17th, 1956, this court received a certified copy of the redrafted petition certified by the clerk of the trial court to be a correct copy of the redrafted petition filed nunc pro tunc as of January 9, 1956. There is no controversy concerning January 9th as being the date the trial court passed its order. There arose a controversy between counsel for each party concerning whether the redrafted petition was in accord with the amendments and rulings of the court as shown by the record. Therefore we reviewed the original petition, all amendments and all general and special demurrers filed and the order of the court on each of them. In this investigation we found that the redrafted petition was in some respects at variance with the other portions of the record. We have coordinated the variances and are basing our judgment on the original petition, all amendments and all demurrers thereto, both general and special. We hold that the judgment of the court overruling the demurrers both general and special to the petition, including the amendments, is without error.
Judgment affirmed. Townsend and Carlisle, JJ., concur.