McLendon v. Daniel

Jenkins, P. J. (After stating the foregoing facts.) 1. In this suit for damages on account of alleged malpractice by a surgeon, it was not error, in view of the testimony submitted authorizing the same, for the court to submit to the jury the ques. tioh of contributory negligence on the part of the plaintiff. 2. “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.” Civil Code (1910), § 4427. This standard, when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar- conditions and like surrounding circumstances, is ordinarily employed by the profession generally. Fincher v. Davis, 27 Ga. App. 494 (5) (108 S. E. 905). It has been held that it is not the mere possession of the requisite professional skill, but its exercise, which is required. Akridge v. [529] Noble, 114 Ga. 949 (41 S. E. 78); Hinkle v. Smith, 12 Ga. App. 496 (77 S. E. 650); Grubbs v. Elrod, 25 Ga. App. 108 (102 S. E. 908). In the instant case, where the plaintiff sought to establish lack of care and skill in setting and bandaging a fracture, in failing thereafter to attend the patient in order to diagnose his condition and administer such treatment as developments rendered necessary, and in failing, after subsequently resuming treatment, to properly diagnose and treat the diseased condition which had arisen, and where the court charged the jury in the language of the code-section quoted, to the effect that the defendant was required to exercise a reasonable degree of care and skill, instructing them immediately thereafter that if the plaintiff had sustained his case as laid he would be entitled to recover, but not so if the defendant “exercised all ordinary and reasonable care,diligence, and prudence,” it would not seem that a verdict in favor of the defendant should be set aside on the theory that the court, after thus twice explicitly charging that the plaintiff could recover if the defendant had failed to exercise care and skill, nullified this instruction when, in stating the converse of the proposition, he used the words “care, diligence and prudence” instead of the words “care and skill.” But even if the 'instruction indicated must needs be taken as so- inaccurate as would, under ordinary circumstances, necessitate the granting of a new trial, such would not be the case where, as here, it is shown, without dispute, that all reasonable care and skill were used in the setting of the fracture according to a method approved by the medical profession, and where it appears that, so far as the alleged neglect in failing to attend the patient after the limb had been set is concerned, the defense set up by the defendant was not that the patient had been properly looked after, not that he had received either care or skilled attention, during the period immediately following the setting of the fracture, but that such neglect was not his neglect, but the neglect of another physician, who had the case in charge, and where, so far as relates to the subsequent treatment given by the defendant after he had again taken hold of the case, the court specifically, and without any sort of possible qualification or equivocation, charged the jury that the defendant was required to exercise all reasonable care and skill. 3. The pressure of the.case centered upon the disputed issue [530] with respect to the second allegation of negligence; that is, whether the defendant’s service in setting the fracture should have been followed up by attending the patient in order to render any needed treatment, or whether this duty devolved upon the other physician, who, the defendant contended, was the physician in charge. Upon this issue, as upon the other disputed issue involved in the third allegation of negligence, the evidence, while in conflict, was such as fully to warrant the jury’s finding in favor of the defendant. Judgment affirmed. Stephens and Bell, JJ., concur.