 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
King v. Dodge County Hospital Authority6/27/2005
iolability of his person, any unlawful touching of that type is a physical injury to the person and is actionable." (Citation and punctuation omitted.) Id. "A cause of action for battery exists when objected-to treatment is performed without the consent of, or after withdrawal of consent by, the patient. OCGA ยง 51-1-13. [Cits.]" Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). " medical `touching' without consent is like any other touching without consent: it constitutes the intentional tort of battery for which an action will lie." Ketchup v. Howard, 247 Ga. App. 54, 56 (543 SE2d 371) (2000).
An action for professional negligence, on the other hand, exists when the plaintiff's claim addresses "the propriety of a professional decision rather than . . . the efficacy of conduct in the carrying out of a decision previously made." Upson County Hospital v. Head, 246 Ga. App. 386, 389 (1) (540 SE2d 626) (2000). The determinative factor is whether "the task in question requires the exercise of professional judgment and skill." Centrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 396 (469 SE2d 466) (1996). Whether the alleged act constitutes professional negligence -- in this case medical malpractice -- is a question of law for the trial court. Dent v. Memorial Hospital, 270 Ga. 316, 318 (509 SE2d 908) (1998).
Our task is determining which of these principles apply to the facts in this case. Counsel present strong arguments on both sides, and the question truly is an extremely close one. Appellees point out that in Head, supra, 246 Ga. App. at 389, this court noted that a plaintiff could maintain an action for simple negligence against professionals if the act or conduct in issue does not call "into question the conduct of the professional in his area of expertise," (citation and footnote omitted), id., such as a mere clerical, administrative, or routine act. While we agree with appellees that starting an IV line is not an "administrative, clerical, or routine act demanding no special expertise," id., neither is King alleging negligence.
King reminds us that as far back as 1964, this court held that even when consent is given for a medical procedure, it may be withdrawn sufficiently to expose the professional to a suit for assault and battery if professional continues treatment. Mims v. Boland, 110 Ga. App. 477, 483 (1) (b) (138 SE2d 902) (1964). Mims also set forth the test for determining whether consent, once given, was effectively withdrawn:
(1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn. (2) When medical treatments or examinations occurring with the patient's consent are proceeding in a manner requiring bodily contact by the [professional] with the patient and consent to the contact is revoked, it must be medically feasible for the [professional] to desist in the treatment or examination at that point without the cessation being detrimental to the patient's health or life from a medical viewpoint.
Id. at 483-484. Perhaps more importantly, the Mims court held that " he burden of proving each of these essential conditions is upon the plaintiff, and with regard to the second condition, it can only be proved by medical evidence as medical questions are involved." Id. at 484.
It appears to us that this factor, so well stated by the court in Mims, is the determinative factor. Even if we conclude that King acted clearly and spoke
Page 1 2 3 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|