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Lawskills.com Georgia Caselaw
ANDREWS v. LOFTON.
32655.
Damages; from Floyd Superior Court-- Judge Nichols. June 10, 1949.
WORRILL, J.
1. The absence of a license to practice medicine or surgery will not of itself authorize an inference of negligence where one attempts to treat or operate upon another and injures him.
2. One without a license to practice medicine or surgery, attempting to operate upon or treat another for compensation, must possess and exercise a reasonable degree of care and skill in so doing, and an injury resulting from the failure to exercise such care and skill will authorize a recovery of damages. 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 circumstances, is ordinarily employed by the profession generally." (a) Stripped of the allegations which we have held in the opinion, infra, should have been stricken on special demurrer, the petition nevertheless set forth a cause of action against the defendant because of his negligence in operating upon and treating the daughter of the plaintiff, which the petition alleged proximately caused her death.
Mrs. Paul Lofton sued R. E. Andrews in Floyd Superior Court for $50,000 damages on account of the death of her minor daughter resulting from an alleged illegal and negligent operation performed upon the child. The petition alleges: that the deceased child was five years and four months of age and resided with the plaintiff at the time of her death; that she was an unusually bright and capable child and performed many services for the plaintiff running errands, assisting in housework and doing other chores too numerous to mention, all of which contributed to the support of the plaintiff, and that the plaintiff was dependent upon her for such support, and on account of these facts she is entitled to recover the full value of her life; that on and prior to July 1, 1948, Andrews falsely held himself out to the public and to the plaintiff as a doctor engaged in the diagnosis and treatment of diseases and authorized to prescribe treatment for the alleviation, relief and cure of physical ailments, with the intent of receiving and actually receiving therefor fees and compensation, and that he maintained an office for the reception, examination and treatment of diseased persons, and attached the title "Doctor" and "Surgeon" to his name, thus indicating that he was engaged in the treatment of diseased, defective and injured human beings, and authorized to prescribe medicines, administer drugs and perform surgery, while, as a matter of fact, during such time he did not possess a license to practice medicine and surgery, all in violation of the laws of Georgia, and particularly 84-901, 84-906, 84-907, 84-924 and 84-9914 of the Code of Georgia; that the defendant did not possess the qualifications requisite to the possession of a license under the laws of Georgia; (par. 5) that the defendant's holding out and representations in that respect were false, and the plaintiff, having no knowledge of the defendant's qualifications, relied upon such representations as true, and as a result thereof did, on July 1, 1948, take her said daughter to the defendant's office where he undertook to perform a surgical operation on the daughter by cutting and removing or attempting to remove her tonsils; that in so doing he failed to exercise any reasonable degree of care and skill, as a result of which her daughter died about midnight on July 1, 1948; that (par. 6) the defendant undertook to perform the said illegal surgical operation about 8:30 a. m., and after the operation the daughter bled almost continuously until her death; that she remained in the defendant's office under his constant care and attention until late in the afternoon of the said day; that around noon she had a violent hemorrhage from her throat, losing several pints of blood, as a result of which she became so weak that she was unable to sit up; that during the afternoon and prior to 5 o'clock the hemorrhage stopped as the result of the natural formation of a blood clot in her throat; that around 5 o'clock the defendant looked in her throat and seeing the blood clot stated, "I will have to remove that blood clot and she will be all right," and thereupon he placed her upon the operating table and with some instrument broke and removed the blood clot, whereupon the hemorrhage again started with such violence as to fly all over his office; that she continued to hemorrhage, losing many additional pints of blood, whereupon the defendant undertook to take stitches in her throat so as to cut off the flow of blood, but this proved abortive; that the loss of blood was such that by 6:30 p. m. the child was in a coma and was limp; that the defendant refused to take her to a hospital or consent for her to be taken but instead said that he would give her glucose and inserted a needle in the child several times and at various locations without being able to strike a blood ves-
sel, after which crude and unskilful efforts he desisted from further attempts but still refused to consent that the child be taken to a hospital to receive medical care, but on the contrary ordered the plaintiff and her father to take the child away from his office around 7 p. m., assuring them that she was all right; that the child became progressively worse and at around 10 o'clock on the said night the plaintiff's father called the defendant, telling him that the child was about to die, again asking his permission to remove her to a hospital, but the defendant still refused to give his permission for the removal of the child to a hospital still assuring them that the child would be all right, prescribing orange juice and Coca-Cola, and refusing to come to the home of the plaintiff's father where the child had been taken; that later on while the child was becoming weaker and weaker and at around 11:30 o'clock the plaintiff's father again called the defendant and demanded that he come and attend the child; that he finally consented after frantic importuning; that he arrived at about midnight, examined the child, saw that she was dying and then for the first time screamed an order that someone call an ambulance with an oxygen tent to take the child to a hospital; that before an ambulance could arrive the child died.
The plaintiff further alleged that, under the facts set forth, the defendant was guilty of negligence proximately causing the death of the plaintiff's said child in the following particulars: (a) in performing or attempting to perform the said surgical operation without exercising a reasonable degree of care and skill as required by Code 84-924; (b) in failing to exercise a reasonable degree of care and skill in the post-operational care of the plaintiff's daughter as required by the said Code section; (c) in holding himself out and falsely representing himself to be a doctor and surgeon, which was relied upon by the plaintiff, as a result of which he was permitted to undertake to perform said operation upon the said child in the manner alleged, and in violation of his duty to exercise ordinary care for the safety of the plaintiff's daughter and in violation of the laws of Georgia; (d) in that, after wrongfully invading the field of medicine and surgery, by undertaking to perform the surgical operation, he failed to pursue any accepted practice of medical doctors and surgeons such as administering blood-clotting drugs and giving transfusions to replace the great loss of blood; (e) in that, after the natural formation of a blood clot in the throat of such child which had the effect of arresting the hemorrhage, he broke and removed said blood clot, thus renewing the flow of blood and destroying the repair that nature had set about to effect; (f) in that, after his unskilful and unlawful attempts to perform said surgical operation upon the plaintiff's daughter, as alleged, he refused to permit the removal of said child to a hospital where she could and would have received skilful and competent attention by medical doctors such as the administration of proper drugs, the giving of plasma and transfusions and other administrations and treatments such as are not well known to the plaintiff but such as should have been well known to the defendant, in the exercise of ordinary care. The plaintiff further alleged that the duties and inhibitions imposed upon the defendant by the statutes and laws of Georgia were due to the plaintiff and her said child personally, and as members of that class of the general public seeking medical and surgical care, it being one of the purposes of said statutes to prevent unskilled persons from preying upon an unsuspecting public and unsuspecting persons such as the plaintiff and her said child, and to eliminate the detriments caused by incompetent practitioners; that the defendant while violating the said statutes in the attempted performance of the said surgical operation knew that one of the natural and probable consequences of his said acts might be a hazard to the life of the plaintiff's child and a detriment to the plaintiff in her death, and that the death of the plaintiff's child was a natural and probable consequence of the unlawful acts of the defendant as alleged.
The defendant demurred generally on the following grounds: 1. The petition does not allege a cause of action against the defendant. 2. The allegations of fact in the petition affirmatively show that the plaintiff has no right of action against the defendant. 3. The allegations of the petition show that the plaintiff is not entitled to recover any amount, for the reason that they affirmatively show that the child was not old enough to have rendered any service or in any way have contributed to the support of the plaintiff or that the plaintiff could have been dependent upon her for support. The defendant also demurred specially on numerous grounds.
The court sustained one ground of special demurrer as to certain allegations which we have omitted from the original petition and overruled all other grounds of demurrer, both general and special, and the defendant excepted.
1. The numerous special demurrers have been carefully examined and considered, but have been found to be without merit except as to two grounds now to be mentioned, and it is not deemed necessary or profitable to set forth all the voluminous grounds. In the acts of negligence set forth in paragraph 7 the following is stated in subsection (c): "In holding himself out and falsely representing himself to be a doctor and surgeon, which was relied upon by the plaintiff, as a result of which he was permitted to undertake to perform said operation upon said child in the manner heretofore alleged, in violation of his duty to exercise ordinary care for the safety of plaintiff's daughter and in violation of the law of Georgia." Special ground of demurrer 12 (a) challenges the above-stated allegations on the ground that they constitute an erroneous conclusion of law that the alleged acts violated any duty to exercise ordinary care for the safety of the plaintiff's daughter. The objection is well taken and the allegations should have been stricken. While the precise question has not been raised in Georgia as to whether or not the failure to have a license to practice medicine or surgery would authorize an inference of negligence where an unlicensed person attempts to treat a patient and injures him, we think that the applicable principle of law is to be found in Hughes v. Atlanta Steel Co., 136 Ga. 511, 512 (71 S. E. 728), where it is said: "The mere fact that the plaintiff on the one hand, or the defendant on the other, was engaged in violating the law in a given particular, at the time of the happening of the accident, will not bar the right of action of the former nor make the latter liable to pay damages, unless such violation of the law was the efficient cause of the injury." It has been held many times by the appellate courts of this State that the failure to have a license to drive an automobile would not of itself authorize an inference of negligence where the driver injures another in the operation of an automobile. A breach of duty to the State does not necessarily involve a breach of duty to an individual. Georgia Power Co. v. Jones, 54 Ga. App. 578, 587 (188 S. E. 566); Hughes v. Atlanta Steel Co., supra; Central of Georgia Ry. Co. v. Moore, 149 Ga. 581 (101 S. E. 668). In 48 C. J. 1135, 138, and 41 Am. Jur. 202, 83, it is stated that the failure to have a license to practice medicine is not of itself a basis for an inference of negligence causing injury to a patient. In a recent case in North Carolina (230 N. C. 672, 55 S. E. 2d, 486), this rule was applied in reviewing a judgment in an action against an unlicensed person for the death of a patient following an extraction of teeth. Under the above-stated authorities, we hold that the mere failure to have a license to practice medicine or surgery will not authorize an inference of negligence in the present case, and the allegations objected to should have been stricken on demurrer.
The allegations in paragraph 8, that the duties and inhibitions imposed upon the defendant by the statutes of this State as to the necessity of having a license to practice medicine or surgery, etc., were due to the plaintiff and her child personally, and as members of the public seeking medical and surgical care, and that the death of the child was a natural and probable consequence of the violation of such statutes by the defendant, were demurred to as irrelevant and immaterial to any issue and were erroneous conclusions of law. For the reasons stated in the foregoing ruling, the allegations do not show anything having a causal relation to the death of the child and should have been stricken on demurrer.
In paragraph 4 of the petition, allegations were made as to the defendant falsely holding himself out as a physician and surgeon in violation of the stated sections of the Code of Georgia, and that he did not possess the qualifications necessary for the possession of a license. These allegations were demurred to on the ground that they were irrelevant and immaterial on the question of the defendant's negligence, the only issue being as to whether or not he actually exercised the requisite care and skill in the treatment of the plaintiff's daughter. While the contention here made is meritorious with respect to any negligence of the defendant, and the allegations are not relevant or material on that issue, they are pertinent by way of history or inducement as to why the plaintiff engaged the services of the defendant, and for that reason should not be stricken.
2. The question remains whether or not the petition, with the specific allegations stricken as pointed out above, nevertheless set forth a cause of action as against the general demurrer. The petition alleges that the defendant, without having first obtained a license as a physician or surgeon, performed an operation upon the plaintiff's daughter and negligently caused her death. Whether the defendant did or did not have a license is immaterial so far as the question in this case is concerned. What, then, is the test under the facts and circumstances here presented? Manifestly the standard to be applied is that prescribed by the Code, 84-924, which is as follows: "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." 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." McLendon v. Daniel, 37 Ga. App. 524, 528 (141 S. E. 77), Bryan v. Grace, 63 Ga. App. 373, 377 (11 S. E.2d, 241), and cit. Such care and skill must not only be possessed but must be exercised. Akridge v. Noble, 114 Ga. 949 (41 S. E. 78), Chapman v. Radcliffe, 44 Ga. App. 649 (162 S. E. 651).
Omitting entirely the allegations which we have ruled should have been stricken on special demurrer, the petition still shows such conduct on the part of the defendant as would authorize a jury to find that he had not exercised the requisite care and skill in treating and operating upon the plaintiff's daughter, and that such negligence was the proximate cause of the death of her child.
The ground of demurrer that the petition shows that the plaintiff is not entitled to recover any amount because it appears that the child was not old enough to render service or contribute to the support of the plaintiff or that the plaintiff could have been dependent upon her for support, is obviously without merit. Whether or not this child, more than five years of age, "unusually bright and capable," was capable of rendering service to the plaintiff, etc., was a question for the jury. Crawford v. Southern Railway Co., 106 Ga. 870 (3) (33 S. E. 826); James v. Central of Georgia Ry. Co., 138 Ga. 415 (75 S. E. 431, 41 L. R. A. (N. S.) 795, 29 Ann. Cas. (1913 D) 468); Reid v. Moyd, 186 Ga. 578 (198 S. E. 703).
The court did not err in overruling the general demurrer.
Judgment affirmed in part and reversed in part. Sutton, C. J., and Felton, J., concur.
C. H. Porter, Pittman, Hodge & Kinney, contra.
Maddox & Maddox, W. T. Maddox, for plaintiff in error.
DECIDED JANUARY 13, 1950.
Saturday May 23 05:45 EDT


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