Kahn v. Shaw , 65 Ga. App. 563 ( 1941 )

The jury was authorized to find that the defendant, an optometrist, had not exercised reasonable care and skill in his examination of the eyes of his patient, a schoolboy, and in the fitting of glasses on the eyes of such patient, where it appeared from the evidence that as a result of wearing the glasses prescribed and fitted by the optometrist the patient suffered headaches and nausea and was backward in his school work.

DECIDED JULY 15, 1941. REHEARING DENIED JULY 30, 1941. Jack Shaw, a minor under sixteen years of age, by C. N. Shaw, his father, as next friend, brought suit against Dr. John Kahn, in which he sought to recover $5000 damages on account of the alleged negligence of the defendant, an optometrist, in treating the plaintiff's eyes. The petition alleged that in January, 1939, the plaintiff visited the offices of the defendant and had the defendant examine his eyes for the purpose of prescribing corrective glasses; that after making the examination the defendant gave to the plaintiff a corrective prescription, and in accordance with his findings the defendant made or caused to be made a pair of glasses for the plaintiff; that after such glasses were made and the plaintiff had worn them for several weeks he developed severe headaches, nausea, and "deep-seated pain in his eyes;" that when such pain developed the plaintiff returned to the defendant and was again examined; that on the second examination the defendant advised the plaintiff that the corrective glasses which he had made were in accordance with his findings, and that within a short time the headache and nausea would subside; that the plaintiff continued to wear the glasses for a week or ten days, and during this time the headaches and nausea continued; that on February 20, 1939, the plaintiff visited a specialist for further examination of his eyes, and was advised by the specialist that the glasses prepared by the defendant were not suited to the plaintiff's eyes, and were not corrective in nature, but highly injurious; that the defendant knew that in order to prepare corrective glasses for any person the age of the plaintiff it was necessary to dilate the eyes of such person; that the defendant did not do this but merely worked on the plaintiff's eyes with corrective glasses; that the defendant "did wilfully and maliciously make and prepare a set of glasses" for the plaintiff's eyes that were not suited to the "vision impairment, but were injurious, detrimental and damaging" to the plaintiff's eyes; that the defendant knew or should have known that he could not accurately make a set of glasses for the plaintiff which would be adequate to correct the vision impairment; that by reason of the careless and negligent workmanship of the defendant the plaintiff's eyes have been injured permanently, and he has been put to approximately $100 additional expense; that the careless and negligent acts of the defendant are the sole and proximate cause of the plaintiff's permanent eye injury, and are the sole and proximate cause of his pain and suffering, and that the plaintiff has paid to the defendant approximately $85 for the services performed and for the glasses made or caused to be made by the defendant.

In his answer the defendant admitted examining the plaintiff's eyes and making glasses for them, but denied that he was guilty of any negligence and denied that he was liable to the plaintiff.

The plaintiff introduced evidence tending to establish the allegations of the petition. It appeared from the evidence that the plaintiff was taken by his mother to Dr. H. F. McDuffie, an eye specialist, for examination and treatment after his eyes had been examined by the defendant and the glasses made by the defendant had been worn for a few days. The plaintiff's evidence tended to show that after his eyes were examined by the defendant and the glasses made by the defendant were worn, the plaintiff suffered headaches and nausea. It also appeared that the defendant did not "dilate the eyes" of the plaintiff, but only made an examination thereof without the use of any drugs. Dr. McDuffie, after qualifying as an expert, testified for the plaintiff substantially as follows: "I know this boy Jack Shaw. I have treated him. He first came to see me in February, 1939. . . He was then wearing a pair of glasses. . . I dilated his eyes and gave him a thorough examination. . . I prescribed a set of glasses for him. . . I took the prescription as given him by me and checked it against the prescription and the glasses he was wearing at the time he came to me. There was a very great difference between my prescription and the glasses he was wearing. It is a pretty hard matter to explain that so the jury would understand it. The glasses start from a bisector pair of plain glass, plain window glass that you can look out of; then it starts with a 1/12, which is a little bit more than window glass, and it comes up to a quarter, and then up to a half, and then to seventy-five and then to one diopter. That is the unit of glasses as well as I can give it. At the time he came to me he was wearing glasses of 3/4 of one diopter; in the glasses I prescribed he was at least minus one; these were plus glasses, but he was wearing at least minus one diopter with a plus two, which comes up from one to one and a half, one and a half, two, plus two in astigmatism. Astigmatism is an outside curvature of the eye, the outside of the eye should be a perfect hemisphere; all directions should be equal. In his case it wasn't near that, the back axis, instead of being at ninety degrees or at eighty degrees — we had to turn it at 105 degrees in both eyes. That is the best I can explain it. There was quite a material difference in those two pairs of glasses. As to whether or not I would say that glasses such as he was wearing at the time he came to me would cause injury to the eye, the boy couldn't see good, he couldn't see with the glasses he had, his vision didn't come out at all and naturally the strain or symptoms that he was suffering with when he came to me could be caused from wearing an improper set of glasses. He was backward in school and he was having headaches and things like that. . . My opinion is that if he had had the proper fitting of glasses he certainly would not have had those headaches. If the glasses he was wearing had not been properly fitted, he would have to have headaches; and I would say that he would have to be wearing glasses that were properly fitted to get the benefit from the glasses, and if he had continued to wear the glasses that he had been wearing he would still be having headaches. . . It is not possible to examine the eyes of a boy such as the age of Jack Shaw without dilating those eyes. You just can't do it; that is all. . . I have treated thousands of individuals of the age of Jack Shaw during my period of practice. It is positively absolutely necessary, when a boy of the age of Jack Shaw comes to me, to dilate those eyes in order to properly fit glasses on him. I found a vast difference between the glasses that Jack Shaw brought to me and the glasses which I myself prescribed. . . In my opinion that difference was such as . . would not specially cause injury to the eye itself, but it would cause symptoms that would cause him to have headaches and not be able to see good, and . . it is injurious to the eyes in that if a man can't see good the eyes don't develop. It is just like any member not being used; it atrophies a little from non-use. . . In my examination of young men in connection with the wearing of glasses I have found that it is possible to oftentimes correct bad vision with glasses in future years; the vision sometimes with proper glasses builds up, and is nearly normal with the glasses. As to whether or not I am familiar with the practice of optometry such as that practiced by Dr. Kahn, I wouldn't know about being familiar with it. I know what it is, of course. It is in a similar line with the oculists. It is the fitting of glasses individually."

There was evidence that the plaintiff's son was around ten years old at the time his eyes were examined by the defendant. There was also evidence that the plaintiff's father paid the defendant about $150 for the defendant's examination and treatment of his son's eyes, including the glasses made by the defendant.

The evidence for the defendant tended to show that the method of treatment used by him in the examination of the plaintiff's eyes and prescribing glasses for them was proper and in accordance with the standards of optometry, and that the glasses prescribed by him for the plaintiff were only temporary glasses. The defendant denied that the plaintiff's father had paid him about $150 for his services, but testified that there might have been $100 paid to him.

The jury returned a verdict for $200 in favor of the plaintiff. The defendant moved for a new trial on the general grounds and by amendment added five additional grounds which are but elaborations of the general grounds. The judge overruled the motion and the defendant excepted. It is contended that there was no evidence to support a verdict for the plaintiff. The jury were authorized to find from the evidence that the glasses prescribed by the defendant were not suited to the plaintiff's eyes; that those glasses were not corrective, and did not remedy the impaired vision of the plaintiff, and that as a result of wearing such glasses the plaintiff suffered headaches and nausea. The jury were authorized to find that if the defendant had properly examined and treated the plaintiff's eyes, and had fitted them with proper and suitable glasses, his impaired vision would have been corrected and he would not have suffered pain as a result of wearing the glasses, and that the defendant was negligent in his examination and treatment of the plaintiff's eyes and in the fitting of the glasses. In these circumstances this court can not say as a matter of law that the defendant was not negligent, and that he exercised proper care and skill in examining the plaintiff's eyes, in prescribing the glasses, and fitting them. This case is not like Branch v. Anderson, 47 Ga. App. 858 (171 S.E. 771), in which the principle that "the fact that treatment has resulted unfavorably does not raise even a presumption of want of proper care, skill, or diligence" was applied, and a verdict against a physician for alleged malpractice and failure to use the proper skill and care usually used by physicians under similar circumstances was set aside as being without evidence to support it. In that case the evidence failed entirely to show that the death of the patient, who was the wife of the plaintiff therein, was caused by lack of care and skill on the part of the defendant physician. It also appeared in that case that the death of the patient was due to peritonitis, and that this had been set in motion by means entirely disassociated from anything which the defendant might have done.

A skillful and careful diagnosis of the trouble from which the patient is suffering is one of the fundamental duties of a physician, and if he fails in that regard as well as in the application of proper treatment and damages result therefrom the physician must answer therefor. Malpractice may consist in a lack of skill or care in diagnosis, as well as in treatment. See Kuechler v. Volgmann, 180 Wis. 238 (192 N.W. 1015, 1017, 31 A.L.R. 826).

Without deciding whether the practice of optometry is a learned profession (see Babcock v. Nudelman, 367 Ill. 626,12 N.E.2d, 635, and Code, § 84-1105), the defendant should certainly exercise skill and care in the examination of a patient's eyes, and in the prescribing and fitting of glasses, and whether or not the facts of this case showed negligence on the part of the defendant, in his examination and treatment of the plaintiff, was for the jury. In determining what constitutes ordinary care and what constitutes negligence the jury would not be confined to the testimony of an optometrist as to what constitutes ordinary care and skill in the examination and treatment of a person's eyes, including the fitting of glasses. See 21 R. C. L. 388 and cit.

The evidence supported the verdict, and the court did not err in overruling the motion for new trial.

Judgment affirmed. Sutton, J., concurs.