Blount v. Moore

Sognier, Judge,

concurring specially.

I concur in Divisions 2, 3 and 4 of the majority opinion. I concur specially in Division 1 of the opinion.

In order to see the context in which the disputed charge was given, I deem it necessary to set out additional facts.

In 1972 in an attempt to curtail the spread of appellant’s cancer, a surgical procedure called a radio-frequency hypophysectomy was performed on her. This operation involved the cauterization of the *88pituitary gland to partially reduce its functioning. While the patient continued to have symptoms of cancer, the spread of the disease was retarded, at least partially due to the radio-frequency procedure. Appellant was advised in 1977 that the cancer was spreading and that she needed radiation treatment, particularly for a tumor along her spinal column. In explaining the radiation treatment, appellant was advised that the radiation treatment might cause paralysis and she could become a paraplegic because of possible damage to her spinal column. Because of the danger, appellant rejected the radiation treatment and as an alternative, appellee recommended an operation called a trans-sphenoidal hypophysectomy. This operation involved the complete removal of the pituitary gland. Later testimony developed that in the opinion of some medical experts the patient would not have survived for more than six months to a year without the trans-sphenoidal hypophysectomy. While removal of the pituitary gland by the operation mentioned above was not an uncommon procedure, testimony was given that a surgical hypophysectomy following a radiofrequency hypophysectomy is a more unusual case. The defendant testified that in his opinion the prior radio frequency operation had scarred certain tiny arteries that supplied the optic chiasm. As the pituitary gland is located immediately adjacent to the chiasm, this scarring increased the possibility that in removing the pituitary gland these arteries which had become fixed by the earlier coagulation resulting from the radiofrequency treatment might be disturbed. The disrupting of these arteries caused an infarct of the optic chiasm which resulted in appellant’s loss of vision. Generally, opinions differed on the cause of appellant’s blindness, but the only specific cause of blindness was offered by the defendant, as stated above. There was no evidence that this condition (the scarring) was discoverable by x-ray or by the fluoroscope used, and was a condition which could have been reasonably anticipated before the operation. As a result of the operation, the patient was blinded but remains alive more than two and one-half years after the operation. From the standpoint of the treatment of cancer, some retardation of its continuous spread resulted from the trans-sphenoidal hypophysectomy performed on appellant.

In this case particularly, the charge “the law recognizes that medicine is an inexact science at best and that all that a doctor may do is to assist nature in accordance with the present state of medical experience,” was proper. The charge was taken from the case of Hayes v. Brown, 108 Ga. App. 360, 363 (133 SE2d 102) (1963). The trial court went on to charge fully and completely on the duties, obligations and presumptions arising from medical treatment.

*89The phrase “ ‘Medicine is an experimental, not an exact, science’ ” is first found in Bennett v. Ware, 4 Ga. App. 293, 299 (61 SE 546) (1980), a malicious prosecution case involving the illegal practice of medicine. The phrase was taken by our Court of Appeals from Chief Justice Clark’s opinion in State v. Biggs, 133 N. C. 729 (1903) (a prosecution for the illegal practice of medicine) and was quoted with approval in Bennett. The phrase in its present version is found in Hayes v. Brown, supra, (an action for medical malpractice against a surgeon, as distinguished from a physician) and has been changed from “not exact” to “inexact,” and has been made contemporary by addition of the phrase “in accordance with the present state of medical experience.” See also Howell v. Jackson, 65 Ga. App. 422, 423 (16 SE2d 45) (1941) for the genesis of the statement “ ‘ [a]ll we can do is to assist nature in her effort to heal the ailment.’ ” The majority states that “the sentence ... is susceptible of being understood as imposing a lesser standard on physicians than the required degree of skill.” To the contrary, when Judge Bell added the words “in accordance with the present state of medical experience,” he anticipated correctly that the jury, based on the evidence, could determine the skill, care or diligence exercised by the surgeon under “the present state of medical experience.” In this case the evidence discloses a difficult operation, an unusual situation, and an unanticipated complication. I find the charge was adjusted to the evidence. The facts themselves demonstrate the inexactitude of the science and demonstrate the wisdom of the charge, particularly when it is not given in an isolated setting.

I am authorized to state that Judge Birdsong concurs in this special concurrence.