Opinion
44864.
ARGUED NOVEMBER 4, 1969.
DECIDED MARCH 17, 1970. REHEARING DENIED APRIL 1, 1970.
Action for damages. Clarke Superior Court. Before Judge Barrow.
Guy B. Scott, Jr., Allen Alexander, for appellant.
Erwin, Epting, Gibson Chilivis, Eugene A. Epting, for appellee.
Where, from the evidence, the jury would be authorized to find that the defendant owed a duty, under the circumstances, not to leave the decedent unrestrained, even momentarily; that this duty was breached; and that the defendant was responsible for the fall of plaintiff's mother, resulting in her death from a possible skull fracture, the lower court erred in granting the defendant's motion for directed verdict at the close of the plaintiff's case.
ARGUED NOVEMBER 4, 1969 — DECIDED MARCH 17, 1970 — REHEARING DENIED APRIL 1, 1970.
This is an appeal from the direction of a verdict for the defendant in a wrongful death action.
The complaint of J. C. Lathan alleged that the death of his mother, Frances Cash Lathan, was caused by the negligence of defendant Murrah, Inc., trading as the Cedar Hill Medical Care Nursing Home, through its agents and servants. It was alleged that plaintiff placed the decedent in the nursing home on October 15, 1968, for her care and attendance; that the plaintiff advised the defendant that his mother was never to be allowed to stand alone or unattended or to be allowed to lie on any bed without a railing or strapping device since she was extremely unsure of foot and subject to dizziness and spells of unconsciousness; but that the next day, October 16, 1968, a nurse allowed the decedent to stand alone while she got a wheelchair; and that she was rushed to a hospital for treatment for skull fracture and other internal injuries from which she died.
The evidence adduced at the trial was that the decedent was 86 years old and senile and had been taken directly to the nursing home from the Stephens County Hospital where she had been a patient for 5 or 6 weeks; that she had gone to the hospital because of a stroke; that the purpose of placing her in the nursing home was so someone could be in attendance with her whenever she was up. It was expected that she would be permitted to sit up for short periods at first and then for longer periods as she gained strength. She was sitting up in the hospital and she was sitting up at the nursing home on the day she was left there. She was admitted to the nursing home as a paying patient.
In support of the contention that the decedent had fallen, the plaintiff testified he viewed his mother's body at the funeral home and saw discoloration on one side of his mother's face.
The only eyewitness as to what occurred in the decedent's room was a nurse who testified:
"I had gotten her, I had given her a bath, I got her up and she was sitting in a chair and I reached over to get the body restrainer and I looked around and Mrs. Lathan, all she did was slump down in the chair. She did not have a fall. . .
"I caught around her and turned her around and laid her back on the bed."
The nurse then testified that she called Mrs. Helen Bragg, the Director of Nursing, "[b]ecause I thought she had fainted, I didn't know what had happened."
Mrs. Bragg testified that her understanding from the message which reached her was that a patient had fallen and she went to the room. She testified that the nurse told her "she had gotten Mrs. Lathan up in a chair and she turned back to the bed to pick up the restrainer to restrain her while she was up, and that she fell over," and "she made no comment about hitting the floor." In any event, Mrs. Bragg testified that she examined the patient and took her blood pressure. She found no mark, bruise or discoloration on the side of her face, but the nurse pointed out a knot near the base of her skull. Her blood pressure was up from 190/80 to 260 so she immediately called the doctor and the ambulance.
Dr. Nile R. Clark testified that he received a call from someone at the nursing home, stating that a patient had fallen onto the floor and possibly received an injury on or about the head. He instructed that the patient be taken to the Saint Mary's Hospital emergency room so that some x-rays could be taken. He called the house physician and told him to look at her and have some x-rays made, which he did. The radiologist was not able to see any fracture on the x-rays, but fractures do not always appear. Because of the house physician's report that the patient appeared to be suffering from some pressure within her head and was having some bleeding from the left ear, he instructed that the patient be admitted to the hospital for observation. About 5:15 that afternoon, Dr. Clark went to see the patient. "She was extremely cloudy, she did not say anything I could understand, but when I tried to talk to her, she would mumble something. At the time I saw her, her vital signs were all right but it was observed she was in distress." The patient died about 7:50 p. m. that day and Dr. Clark filled out and signed a death certificate. When he was asked whether trauma did or did not contribute or cause the death of Mrs. Lathan, Dr. Clark responded:
"There is a possibility it could have caused it or might have contributed. It depends on whether she fell and received a head injury and whether she had a stroke and fell on the floor, and that is something I don't guess any one will ever be certain about."
Dr. Clark also testified that bleeding from the ear makes one suspicious of a skull fracture, but in his medical opinion as to the cause of death he stated:
"I think she died of a cerebral hemorrhage. It is a question of whether she died from a trauma from an accident or whether a spontaneous hemorrhage, and I have no way of knowing."
Dr. Clark also expressed the opinion that a past history of a stroke or strokes increased the likelihood of future strokes.
The defendant's motion for directed verdict, made after the plaintiff rested his case, was granted. Plaintiff has enumerated this action as error.
Where the judge directs a verdict for either party, the evidence must be such as to demand his finding. Thus this case would have to be completely without any evidence on which liability could be found for the lower court to direct a verdict against the plaintiff. However, if there be evidence from which the jury might find that the defendant owed a duty, under the circumstances, not to leave the decedent unrestrained, and that this duty was breached and was responsible for a fall, and that a fall did result, which caused or contributed to the decedent's death, the lower court would have erred in granting a directed verdict. There was evidence from which the jury could have determined the defendant owed a duty, under the circumstances, not to leave decedent unrestrained, even momentarily; that this duty was breached; and that defendant was responsible for the fall of plaintiff's mother. Where a verdict is directed, all of the evidence must be construed most favorably toward the party opposing the motion to direct it. Curry v. Roberson, 87 Ga. App. 785, 786 ( 75 S.E.2d 282); Misfeldt v. Hospital Authority of Marietta, 101 Ga. App. 579 ( 115 S.E.2d 244). In order to create an issue of fact in a case, "it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence. Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts." Brown v. Matthews, 79 Ga. 1 (2) ( 4 S.E. 13).
The death certificate introduced in evidence in this case lists the immediate cause of death as "possible skull fracture — middle fossa," and that the interval between the onset and death was 7 hours. It also suggests "consider cerebral hemorrhage — interval between onset and death 7 hours." Mrs. Helen Bragg, Director of Nursing, testified that her understanding from the message which reached her was that a patient had fallen and she went to the room; Dr. Nile R. Clark testified that he received a call from the nursing home to the effect that a patient had fallen onto the floor and possibly received an injury on or about the head; the house physician reported that the patient appeared to be suffering from some pressure within her head, and was having some bleeding from the left ear; the patient died about 7:50 p. m. on the day of the fall, and that night Dr. Clark filled out and signed the death certificate, and when asked whether trauma indicated or contributed to the cause of death responded: "There is a possibility it could have caused it or might have contributed. It depends on whether she fell and received a head injury and whether she had a stroke and fell on the floor, and that is something I don't guess any one will ever be certain about." He further testified: "I think she died of a cerebral hemorrhage. It is a question of whether she died from a trauma from an accident or whether a spontaneous hemorrhage, and I have no way of knowing." The jury was entitled to credit so much of Dr. Clark's testimony as it felt same was entitled to, or to discredit it completely, but the evaluation to be placed upon such expert testimony is the function solely and exclusively of a jury. Ocean Acc. c. Corp. v. Lane, 64 Ga. App. 149 (1, 2) ( 12 S.E.2d 413). Further, a death certificate "shall be prima facie evidence of the facts stated therein." Code Ann. § 88-1118. It cannot be ignored, inasmuch as the legislature has established this as public policy. It may be rebutted but it is a question for a fact-finding body to determine whether conflicting evidence introduced was sufficient to rebut the presumption. Davis v. Atlantic Steel Corp., 91 Ga. App. 102 ( 84 S.E.2d 839); Wender Roberts v. Jones, 95 Ga. App. 82 ( 97 S.E.2d 160); Prudential Ins. Co. of America v. Kellar, 213 Ga. 453 ( 99 S.E.2d 823). While the statute necessarily means that only "facts" contained in the certificate are accorded the dignity of constituting prima facie evidence (see Liberty Nat. Life Ins. Co. v. Power, 111 Ga. App. 458 ( 142 S.E.2d 103); s.c. 112 Ga. App. 547 ( 145 S.E.2d 801)), and the doctor's testimony at the trial was that the immediate cause of death was based upon his expert opinion as a doctor, a jury question remains whether or not the death certificate in the instant case established a presumption. Thus, conceding that the doctor's oral testimony at the trial shows that his final diagnosis which he made on the death certificate as to the cause of the death did not establish prima facie evidence of that fact, there was still evidence before the jury which would have authorized a finding that the deceased had a fall, died of a skull fracture, and the defendant was negligent in allowing her to fall. Pippin v. Mutual Life Ins. Co. of N. Y., 108 Ga. App. 741, 752 ( 134 S.E.2d 446). In view of the evidence here, the trial court erred in granting the defendant's motion for a directed verdict at the close of the plaintiff's case. The error enumerated on the direction of the verdict is therefore meritorious.
Judgment reversed. Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Pannell and Deen, JJ., concur. Quillian and Whitman, JJ., dissent.
To find liability in this case the jury would have to find that the defendant owed a duty under the circumstances not to leave the decedent unrestrained, even momentarily, and that this duty was breached and was responsible for a fall. Further, they would have to find that the fall caused or contributed to the decedent's death. In our view the evidence would authorize all of these findings except the latter. The medical expert stated with definiteness that death resulted from cerebral hemorrhage or "stroke." But beyond this, his testimony was equivocal. He testified in effect that it could not be determined whether the stroke which brought death was caused from natural causes or was caused or contributed to by a fall.
"1. Facts which are consistent with either of two opposing theories prove neither. . . 2. Where it cannot reasonably be determined from the plaintiff's evidence whether or not the defendant's negligence caused the injury complained of, a nonsuit is proper. . . `When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion but also render less probable all inconsistent conclusions.'" Camp v. Emory University, 95 Ga. App. 442 (1, 2) ( 98 S.E.2d 66). (Citations omitted). Generally, see 32A CJS 639, Evidence, § 1019 (b).
I would affirm.
I am authorized to state that Judge Quillian concurs in this dissent.