Hawkins v. McCain , 239 N.C. 160 ( 1954 )

79 S.E.2d 493 (1954) 239 N.C. 160

HAWKINS
v.
McCAIN.

No. 676.

Supreme Court of North Carolina.

January 15, 1954.

J. V. Morgan, High Point, for appellant.

Smith, Sapp, Moore & Smith, Greensboro, for appellee.

DENNY, Justice.

Assignments of error Nos. 1, 2, 3, 4, and 6 are based on like numbered exceptions to the exclusion of evidence by nonexpert witnesses as to what advice they gave the plaintiff upon observing her condition, and the reason for offering such advice. These witnesses were permitted to testify as to the plaintiff's physical appearance before she took the Fowler's solution, as well as during the time she was taking it and immediately thereafter. However, the court sustained the defendant's objections to their proposals to testify that they advised her to stop taking the medicine "because it seemed to be killing her."

In cases where the physician's or surgeon's want of skill or lack of care is so gross or patent as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it, expert evidence is not required. Jackson v. Mountain Sanitarium, 234 N.C. 222, 67 S.E.2d 57; Wilson v. Martin Memorial Hospital, 232 N.C. 362, 61 S.E.2d 102; Gray v. Weinstein, 227 N.C. 463, 42 S.E.2d 616; Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Covington v. James, 214 N.C. 71, 197 S.E. 701. But in other factual situations the rule is different as pointed out by Justice Seawell in Groce v. Myers, supra, in which he said [224 N.C. 165, 29 S.E.2d 556]: "In cases involving the application of scientific knowledge peculiar to that branch of learning (the science of medicine), there is no question that the rules of evidence requiring expert opinion in matters of scientific knowledge ought to be carefully enforced, both in the interest of justice and in the protection of a profession peculiarly liable to suit when, after exhausting every known resource and applying the highest degree of skill, the result is not what the patient or friends desire or hoped for."

The court below properly excluded the above testimony. It constituted nothing more than mere conjecture or surmise on the part of these lay witnesses as to cause and effect in a field of knowledge in which only an expert could give a competent opinion, Jackson v. Mountain Sanitarium, supra, that is, one as to whether the health of the plaintiff had been injuriously affected by taking the prescribed medicine.

The plaintiff also assigns as error the exclusion of other proffered testimony. But a careful examination of the exceptions upon which these assignments of error are based disclose that they are without merit. Hence, they are overruled.

Assignment of error No. 10 is based on an exception to the ruling of the trial court in sustaining the defendant's motion for judgment as of nonsuit. Therefore, we must determine whether or not the plaintiff's evidence, when considered in the light most favorable to her, as it must be on such motion, Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251, is sufficient to warrant its submission to the jury. In our opinion it is not.

In arriving at this conclusion we are advertent to the rule that we are not permitted to consider the defendant's evidence, unless it is favorable to the plaintiff, except when it is not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff. Nance v. Hitch, 238 N.C. 1, 76 S.E.2d 461; Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, and cited cases.

The duty of a physician to his patient was set forth in the case of Nash v. Royster, 189 N.C. 408, 127 S.E. 356, 359, by the late Chief Justice Stacy in the following language: "Ordinarily, when a physician or surgeon undertakes to treat a patient without any special arrangement or agreement, his engagement implies three things: (1) That he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession, and which others, similarly situated, ordinarily possess; (2) that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the patient's case; and (3) that he will exert his best judgment in the treatment and care of the case intrusted to him", citing numerous authorities. See Nance v. Hitch, supra; Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589; Waynick v. Reardon, 236 N.C. 116, 72 S.E.2d 4; Jackson v. Sanitarium, supra; Wilson v. Hospital, supra; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480.

The plaintiff alleges in her complaint that she has suffered great bodily injury, nervous disorder and mental anguish resulting from the defendant's want of skill, his improper treatment and his failure to use and apply such skill and care as should have been applied in the ordinary course of treatment for her condition.

In an action for malpractice, the burden is upon the plaintiff to prove by the greater weight of the evidence not only that the defendant was negligent, but that such negligence was the proximate cause or one of the proximate causes of her injury. Grier v. Phillips, supra; Smith v. Wharton, 199 N.C. 246, 154 S.E. 12.

An examination of the plaintiff's evidence discloses that she employed the defendant on or about 1 September, 1950, to treat her for a skin disease; that she has been a victim of Hodgkin's disease since 1945; that after she took the Fowler's solution for seven days and one dose on the eighth day, she discontinued taking it. That after she began to take Fowler's solution that contained arsenic, her legs began to swell and her face was puffed around her eyes; that on the ninth day after she started taking Fowler's solution the whole side of her face was broken out with yellow blisters. She called her regular family physician, Dr. Grayson, who treated her over a period of four weeks. Thereafter, her husband called the defendant who went to see her at her home and found she was suffering from herpes zoster; that she went to the hospital on the 9th or 10th of October, where the defendant treated her; that in the meantime Dr. Leath treated her eye and Dr. Gray also treated her for herpes zoster; that when she was admitted to the hospital she was informed that "it was herpes which was circling my eye."

It is significant that the plaintiff offered no evidence in support of her allegations with respect to the defendant's want of skill and that he prescribed the wrong treatment for her condition. There is no allegation or evidence to the effect that the defendant did not use his best judgment in treating the plaintiff. There is no evidence as to what Dr. Grayson, her family physician, treated her for or what medicine he gave her. Neither is there any evidence that she ever informed Dr. Grayson, Dr. Leath or Dr. Gray that she had taken Fowler's solution. In so far as the plaintiff's evidence is concerned, the treatment prescribed by the defendant may have been the one overwhelmingly approved and used by the medical profession generally in such cases. Furthermore, if it was an approved and acceptable treatment and the dosages as prescribed proper, the mere fact that she had an unfavorable reaction from its use would not make the doctrine of res ipsa loquitur applicable, nor would it be sufficient to establish actionable negligence against the defendant. Springs v. Doll, 197 N.C. 240, 148 S.E. 251; Smith v. McClung, 201 N.C. 648, 161 S.E. 91; Byrd v. Marion General Hospital, 202 N.C. 337, 162 S.E. 738. As stated by Barnhill, J., in Lippard v. Johnson, 215 N.C. 384, 1 S.E.2d 889, 890: "Practical application of the medical science is necessarily to a large degree experimental. Due to the varying conditions of human systems the result of the use of any medicine cannot be predicted with any degree of certainty. What is beneficial to many sometimes proves to be highly injurious to others." Moreover, a physician is not "a warrantor of cures nor an insurer." Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285, 289.

It is permissible for us to examine the defendant's evidence in order to ascertain the nature of the diseases the plaintiff had, according to her evidence, at the time the defendant prescribed for her and at the time she entered the hospital more than a month thereafter. It will be noted that there is a considerable variance between the allegations of the complaint and the plaintiff's evidence as to the time she was hospitalized.

The defendant testified that when he prescribed for her she had psoriasis, which is a chronic skin disease; that its cause is not known and there is no known cure for it; that it will improve in response to certain treatments.

Dr. Gray testified that Hodgkin's disease is a disease of unknown cause; that it is malignant, one of the most malignant diseases of the lymph system, the glands of the body, characterized by the enlargement of these glands, frequent loss of weight, loss of appetite, anemia, and easy fatigue; it is incurable. This witness further testified that "we are never certain of the cause of herpes because herpes zoster may appear as a primary infection in some individuals who otherwise seem well, and it may also appear in people who have chronic diseases or current diseases * * *. Hodgkin's disease is a debilitating disease; it is one such as patients have who frequently have shingles." Therefore, it is not established by the plaintiff's evidence or by the evidence of the defendant favorable to her, that the treatment prescribed for her by the defendant caused the herpes zoster or aggravated her condition with respect to Hodgkin's disease.

In our opinion, the evidence disclosed on this record does not establish actionable negligence against the defendant. Boger v. Ader, 222 N.C. 758, 23 S.E.2d 852; Lippard v. Johnson, supra; Ferguson v. Glenn, 201 N.C. 128, 159 S.E. 5.

For the reasons stated, the judgment of the court below is

Affirmed.