Opinion
35787.
DECIDED OCTOBER 11, 1955.
Action for damages. Before Judge Hicks. Floyd Superior Court. May 17, 1955.
Wright, Rogers, Magruder Hoyt, Dudley B. Magruder, Jr., for plaintiff in error.
Matthews, Maddox, Walton Smith, contra.
The petition stated a good cause of action in tort for malpractice under Code § 84-924; therefore, the court did not err in overruling the general and special demurrers.
DECIDED OCTOBER 11, 1955.
Elvie Ruth Hamilton sued J. H. Norton, Jr., for damages. The petition, in substance, alleged: that on or about the month of February, 1954, the defendant, as a practicing physician and medical doctor, accepted the plaintiff, who was then pregnant with a child, as his patient and agreed to give the plaintiff such prenatal care and treatment as might be needed; to deliver the plaintiff's child and to give the plaintiff such postnatal care as might be needed, all in accordance with modern up-to-date medical practice; that she relied on the defendant as a licensed physician and medical doctor to treat and advise her and to deliver her child and care for her after her child's birth in accordance with modern medical practice; that thereafter, the plaintiff was given prenatal treatment by the defendant on several occasions; that on June 18, 1954, at about 1 p. m., the plaintiff began having labor pains at regular intervals and, at her request, her husband went as her agent to the defendant and requested the defendant to come to the plaintiff's bedside for the purpose of ascertaining her condition and administering such treatment as might be required; that the defendant refused to visit the plaintiff as so requested, but instead advised and assured the plaintiff's husband that the plaintiff would not have her baby until July 2, 1954; that her labor pains continued throughout the afternoon and early night of June 18, 1954, and began to occur at shorter intervals and became more severe as the night moved on; that at about 1 a. m., on June 19, plaintiff's brother went to the defendant at the request of the plaintiff and as her agent and asked the defendant to come to the plaintiff's bedside for the purpose of ascertaining her condition and administering such treatment as might be required; that, in response to such request, the defendant did come to the plaintiff's bedside, at about 1:30 a. m. on June 19 and examined her and thereupon advised the plaintiff that her baby would not come until July 2, 1954, after which the defendant departed; that the plaintiff's labor pains continued throughout the early hours of the morning of June 19, becoming more severe and more frequent as time went on; that at about 6 a. m. on June 19, the plaintiff apprehended that because of her severe labor pains her baby could not be long in coming and, at her request, her brother again went to the defendant, advised him of the plaintiff's condition and that she was crying for the doctor, and requested the defendant to come to the plaintiff's bedside; that in reply to such request, the defendant refused to visit the plaintiff and again advised that the baby would not arrive until July 2, 1954, and that he would visit her later in the day of June 19; that when her husband arrived home from his job at about 7:30 a. m. on June 19, the plaintiff was suffering from constant labor pains and her condition had become such that she apprehended the arrival of her baby at any moment; that the husband, at the plaintiff's request and as her agent, thereupon went to the defendant, described the plaintiff's condition to the defendant and urgently requested the defendant to come at once to the plaintiff's bedside, whereupon, the defendant flatly refused to come to the plaintiff's beside and told the plaintiff's husband that he did not have to come and that he would have nothing further to do with the plaintiff's case; that immediately after the defendant advised the plaintiff's husband that he would not come to the plaintiff's bedside and that he was abandoning her case, the plaintiff's husband attempted to obtain a physician to come to attend the plaintiff, but was unable to do so; the husband then departed by automobile for Rome, Georgia, in order to attempt to obtain the services of a physician there; that at about 9 a. m. on June 19, while the plaintiff's husband was away from the plaintiff's home attempting to obtain the services of a physician in Rome, Georgia, the plaintiff bore her child in her home without the aid of any physician or other person possessing skill or knowledge in the delivery of babies and without the aid of any modern drugs or medicines; that the defendant's refusal to come to the plaintiff and treat her, and his refusal to have anything more to do with her case, just prior to the birth of the plaintiff's child, constituted an unwarranted abandonment of the plaintiff; that the defendant, in the care and treatment of the plaintiff, was negligent and failed to exercise a reasonable degree of care and skill, and failed to bring to the exercise of his profession that reasonable degree of care and skill required by law: in that the defendant could have determined by the exercise of reasonable care and skill when he examined the plaintiff at or about 1:30 a. m. on the morning of June 19, that the arrival of her baby was imminent and so have advised plaintiff; that the defendant, in the care and treatment of the plaintiff was negligent, and failed to exercise a reasonable degree of care and skill, and failed to bring to the exercise of his profession that reasonable degree of care and skill required by law; in advising the plaintiff at about 1:30 a. m. on June 19 that her baby would not be born until July 2, 1954; in refusing to come to the plaintiff's bedside when requested to do so at about 6:00 a. m. on June 19, in refusing to come to the plaintiff's bedside when requested so to do at about 7:45 a. m. on June 19; in abandoning the plaintiff's case on the morning of June 19 shortly prior to the birth of her child without any advance notice and without procuring the services of any other physician to act in his stead, and in wilfully, wantonly and maliciously abandoning the plaintiff on the morning of June 19, shortly prior to the birth of her child without any advance notice; that all of the aforesaid acts and omissions on the part of the defendant contributed to and proximately caused the injuries to and damages to plaintiff hereinafter complained of; that as a result of the defendant's sudden refusal to treat the plaintiff and his unwarranted abandonment of her without any prior notice about one hour prior to the birth of her child, she was unable to obtain the services of any other physician or other person possessing skill or knowledge in the prescription of drugs and medicines or in the delivery of babies and was forced to give birth to her child under the most primitive and painful circumstances; that as a result of the bearing of said child without the aid and care of a physician or anyone else possessing skill or knowledge in the delivery of babies, and without the benefit of any modern drugs or medicine, the plaintiff experienced excruciating pain and suffering, both physical and mental, far in excess of that which she would have experienced had she received proper medical care and treatment just prior to, during, and after the birth of her said child, and was forced to remain for more than one hour with the umbilical cord still attached to herself and her child before anyone skilled in the delivery of babies could be obtained to treat her and her baby and sever the umbilical cord, and as a result thereof experienced great pain and suffering, both mental and physical, greatly wounded feelings and shock and fright; that as a result of the defendant's acts and omissions as aforesaid, the plaintiff, in order to obtain medical care for herself and her child, was forced to ride in an ambulance from her home to Rome, Georgia, a distance of about thirteen miles, over rough country roads without the benefit of any modern drugs or medicine to ease her pain and suffering and with her child still attached to her by the umbilical cord, as a result of which plaintiff suffered excruciating pain and agony, both mental and physical, and suffered severe mental shock and fright and great humiliation and mortification; that as a result of the defendant's aforesaid wilful, wanton and malicious refusal to treat her and abandonment of her case, the plaintiff suffered severe nervous shock and fright over the fate of herself and her child prior to, during, and after the birth of her child; that the defendant's abandonment of the plaintiff's case about one hour prior to the birth of her child was unwarranted, cruel, wilful, wanton, and malicious, and evidenced a complete disregard on the part of the defendant of his duties and obligations toward her as one of his patients and a complete failure to exercise a reasonable degree of professional care as required by law.
The defendant now excepts to the overruling of his general and special demurrers to the petition.
It is contended by the plaintiff in error that the action is one for breach of contract and not for a tort and that, therefore, the action was improperly brought by the wife rather than the husband, and that pain and suffering cannot be recovered as an element of damages for a breach of contract. The action is in tort. It is brought under Code § 84-924 which provides: "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." The usual practice is to bring such an action in tort rather than for breach of contract. Scott v. Simpson, 46 Ga. App. 479 (1) ( 167 S.E. 920). It is strongly argued by the plaintiff in error that the allegation that the defendant withdrew from the case alleges a breach of contract rather than a tort. We cannot agree. The duty of a physician or surgeon to bring skill and care to the amelioration of the condition of his patient arises not only from the implied contract between the physician and his patient (see Scott v. Simpson, supra, headnote 2), but such duty also has its foundation in public considerations which are inseparable from the nature and exercise of his calling and it is predicated by the law on the relation which exists between physician and patient which is a result of a consensual transaction, and not necessarily one of contract. 41 Am. Jur. 198, § 79. Before a physician can abandon or withdraw from a case without liability therefor, he must either give reasonable notice or provide a competent physician in his place. 70 C. J. S. 966, § 48 f (3); 41 Am. Jur. 194, § 72. "A physician who leaves a patient at a critical stage of the disease, without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of a culpable dereliction of duty." Young v. Jordan, 106 W. Va. 139 ( 145 S.E. 41). An action will lie for the failure of the physician to use reasonable care or skill. Richards v. Harpe, 42 Ga. App. 123, 125 (11) ( 155 S.E. 85). If a physician abandons a case without giving such notice or providing a competent physician in his place, it is a failure to exercise that care required by law, which failure amounts to a tort. "Negligent failure to attend and treat a patient at a time when the need of treatment is known to the physician and there is opportunity to apply proper treatment amounts to the same as negligent treatment and the physician is answerable for such failure." 41 Am. Jur. 216, § 100.
Of course, the same degree of care and skill is required in making a diagnosis as is required in treatment.
Whether a physician has used that degree of care and skill required by law in attending his patient is generally a question for a jury's determination. Kuttner v. Swanson, 59 Ga. App. 818, 820 (1) ( 2 S.E.2d 230); Mason v. Hall, 72 Ga. App. 867, 874 ( 35 S.E.2d 478).
For an exhaustive note on this subject in obstetric cases, see 141 A.L.R. 111-170. On the question of abandonment, see also 56 A.L.R. 818; 60 A.L.R. 664.
The plaintiff prayed for damages for physical and mental pain and suffering and for damages for wounded feelings. Under the facts alleged, both items of damages are recoverable. Interstate Life Accident Co. v. Brewer, 56 Ga. App. 599 (1, 5) ( 193 S.E. 458).
The special demurrers are without merit.
The petition alleged a good cause of action in tort and the court did not err in overruling the general and special demurrers to the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.