Parr v. Palmyra Park Hospital, Inc., 139 Ga. App. 457, 228 S.E.2d 596 (1976)
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Judgment affirmed. Bell, C. J., Clark, Stolz, Marshall and McMurray, JJ., concur. Deen, P. J., and Quillian, J., dissent. Smith, J., not participating.
Summary
Judgment affirmed. Bell, C. J., Clark, Stolz, Marshall and McMurray, JJ., concur. Deen, P. J., and Quillian, J., dissent. Smith, J., not participating.
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Malone & Percilla, Thomas Wm. Malone, for appellant.
John Parr was scheduled for a prostatectomy by Dr. Kevin Lane, a urologist, at a public hospital in Albany and was told by Dr. Lane to obtain blood from private sources and have it on standby as he would probably require transfusion. The surgery was subsequently performed, however, at the appellee hospital, a private facility where blood for transfusions is made available by the hospital as a service for physicians. Dr. Lane made no determination as to whether blood would be available there and Palmyra Park Hospital does not require patients to supply blood in advance of use. The hospital administrator never spoke to Parr regarding blood prior to the surgery. Dr. Lane could not remember specifically telling Parr about the risk of hepatitis associated with blood transfusions but he discussed the risk of surgery in general quite extensively.
During the course of surgery Parr required two blood transfusions. One unit of the blood was obtained from a voluntary donor and the other from a commercial blood bank. Parr contracted acute hepatitis and filed a three count complaint alleging that the hepatitis was the result of receiving "unwholesome, impure and adulterated" blood supplied by the appellee hospital. Counts 2 and 3 were stricken pursuant to Code Ann. 105-1105, which defines the transfusion of blood as a service rather than a sale and makes liability contingent upon proof of negligence.
Count 1, sounding in negligence, was based upon the premise that a hospital utilizing blood obtained from paid donors has a duty to warn a patient admitted for elective surgery of the increased risk of hepatitis he will encounter as a consequence of the expected transfusion. The hospital's motion for summary judgment was granted as a result of the trial court's application of this court's recent decisions in Young v. Yarn,
"In Young v. Yarn,
An issue was raised as to whether the use of the commercial blood entailed greater risk than donor blood. The defendant hospital introduced proof that, in its experience and that of its doctors, commercial blood was not a significant factor in transmitting hepatitis. A doctor for the plaintiff, who was reputed to be an authority, by affidavit, stated that blood obtained from paid donor sources carries with it a significantly higher risk of contracting transfusion-related hepatitis than does blood obtained from volunteers.
"While opinion evidence adduced by the respondent is sufficient to preclude the grant of a summary judgment (see Word v. Henderson,
Issues of negligence are, ordinarily, not susceptible of summary adjudication, but must be resolved on trial. Wakefield v. A. R. Winter Co.,
Although the defendant introduced proof which tended to show that it was not negligent and did exercise care, it did not conclusively establish that the plaintiff could not recover.
Moreover, the case cited by the majority, Young v. Yarn,
Assuming arguendo that the statute in question (Ga. L. 1971, p. 438 et seq.) applies to hospitals although it contains throughout its terms the expression "by a duly licensed physician," in the case sub judice there was no showing that the requirements of the statute were met. In Young v. Yarn, supra, there was a written and signed consent form which was, however, imperfect in not disclosing the general terms of treatment. This consent was obtained by the physician who did disclose such general terms of treatment. Here, there is not an iota of evidence that the hospital gave the plaintiff any information with regard to the blood, nor that it obtained his written consent.
Where a doctor instructs the hospital to provide blood for the patient, and the hospital takes the blood sample from the patient, provides the laboratory analysis, then selects the type of blood, either from donor or commercial blood or both, administers the blood to the patient, and bills the patient (not the doctor) the disclaimer of the hospital that it was merely providing a service to the doctor will not suffice.
The testimony of the physician was that he told the plaintiff (patient) that the plaintiff should obtain blood from the blood bank and that the plaintiff would need to replace it. Thus, construing the evidence in favor of the party opposing the motion, the blood was furnished by the hospital to the patient and not to the doctor. Hence, any relation that existed with regard to the blood was between hospital and patient, not doctor-patient.
When a hospital asserts the protection of Code Ann. 88-2906 it must, of necessity, show its compliance with the statute. It would have to show that any medical procedure, or medical service furnished the patient, was disclosed "in general . . . [and] duly evidenced in writing and signed by the patient . . ." A hospital will not be permitted to insulate itself from its negligence on the grounds that the hospital patient was a patient of the doctor, and they would be violating the "doctor-patient" privilege by explaining the medical procedure or medical service provided by the hospital to the patient.
The terms of the statute are plain: where its requirements are met then a consent shall be conclusively presumed to be valid. Where, as here, none of the essential elements are shown then a summary judgment should not be granted merely to impose considerations of public policy which cannot be separated from compliance with the statute.
I would hold that it was error to grant defendant's motion for summary judgment.
I am authorized to state that Presiding Judge Deen joins in this dissent.
1976
Notes:
1. But see Canterbury v. Spence, 464 F2d 772 (D.C.C.A. 1972), cert. den., 409 U. S. 1064 (93 SC 560, 34 LE2d 518), holding that the physician's duty to disclose arises from legal obligation, not from customary medical practice.
2. Compare Bly v. Rhoads,
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This document cites
- Supreme Court of Georgia - HARRISON, Chairman, et al. v. TUGGLE et al.; an vice versa., 225 Ga. 211, 167 S.E.2.d 395 (1969)
- Supreme Court of Georgia - GARRETT v. ROYAL BROTHERS COMPANY, INC., 225 Ga. 533, 170 S.E.2.d 294 (1969)
- Supreme Court of Georgia - WORD v. HENDERSON et al., 220 Ga. 846, 142 S.E.2.d 244 (1965)
- Georgia Court Of Appeals - Wakefield v. A. R. Winter Company, Inc., 121 Ga. App. 259, 174 S.E.2d 178 (1969)
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