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Walker v. Giles11/18/2005
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Finally, our conclusion is fortified by the Restatement (2d) of Torts § 452, which has been relied upon by this Court as persuasive authority. See J.C. Lewis Motor Co. v. Simmons, 128 Ga. App. 113, 114- 115 (1) (195 SE2d 781) (1973). Section 452 provides that "the failure of a third person to act to prevent harm to another threatened by the actor's negligent conduct is not a superceding cause of such harm," except where "the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to third person." Restatement (2d) of Torts § 452 (1) and (2) (1965).
At trial, appellants presented expert testimony that the duty to properly diagnose and treat Walker and her fetus did not completely shift from appellees to Dr. Smith and Dr. Novak once the latter became involved in Walker's case. In particular, Dr. Williams and Dr. Evans testified that obstetricians and general surgeons routinely work together as "co-manager " and "team members" to work-up and evaluate pregnant patients with abdominal infections. Both experts testified that there is no difference in the standard of care for a general surgeon and obstetrician regarding the evaluation, recognition, work-up, and diagnosis of a pregnant patient with an abdominal infection.
COUNSEL: Is there any difference, Doctor, between the duty owed by - under the appropriate standard of care by a general surgeon and OB-GYN with regard to the duty to work up a pregnant patient with - who has signs and symptoms of a possible abdominal bacterial infectious process?
DR. EVANS: There is no difference. Both of them would be potentially called upon to evaluate that patient.
COUNSEL: Is there any difference in the way a general surgeon works up a patient for a potential bacterial abdominal infection versus what an OB-GYN would do to work up a patient for that?
DR. WILLIAMS: No. The work up is not unique to each discipline of medicine.
Both experts also testified that an obstetrician has an independent duty not to simply defer to a general surgeon, but rather to ensure that all proper diagnostic tests are performed on his sick pregnant patient and fetus which the obstetrician reasonably believes are necessary and appropriate (which in this case would have included follow-up blood studies and an abdominal CT scan, in their view). Moreover, both experts opined that if an obstetrician determines that surgery for his pregnant patient and fetus is needed, the obstetrician has a duty to take all available steps to ensure that the surgery is done in a timely manner and cannot abandon the patient and fetus to a general surgeon. In this regard, when asked whether in her opinion "the standard of care allow any physician and particularly an OB-GYN to stand by and watch another physician not meet the standard of care," Dr. Williams answered "No."
Given this record evidence, we find that appellants created a genuine issue of material fact over whether the duties owed to Walker by appellees were concurrent and overlapping with the duties owed to her by Dr. Smith and Dr. Novak once the latter became involved in her care. As such, the causation principles set forth in Restatement (2d) of Torts § 452 (1) and (2) support our conclusion it was not appropriate for the trial court to find as a matter of law that the alleged negligence of Dr. Smith and Dr. Novak constituted an intervening act which superceded any negligence committed by appellees.
For these reasons, the trial court erred in its finding as a matter of law that the alleged negligence of appellees did not proximately cause Walker's injuries. The trial court should have submitted the
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