Nance Ex Rel. Nance v. Hitch , 238 N.C. 1 ( 1953 )

76 S.E.2d 461 (1953) 238 N.C. 1

NANCE
v.
HITCH.

No. 450.

Supreme Court of North Carolina.

June 12, 1953.

Bickett & Banks and W. H. Yarborough, Raleigh, for plaintiff appellant.

Brassfield & Maupin, Robert L. Savage, Jr., Raleigh, for defendant appellee.

WINBORNE, Justice.

Did the court below err in granting defendant's motion for a judgment as of nonsuit at the conclusion of all the evidence? This is the question presented on this appeal.

In considering such motion, "the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff", Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 600, citing State v. Fulcher, 184 N.C. 663, 113 S.E. 769. See Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, where other cases in which this rule was applied are cited. See also Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Ward v. Cruse, 236 N.C. 400, 72 S.E.2d 835; Harris Express, Inc., v. Jones, 236 N.C. 542, 73 S.E.2d 301.

Therefore, taking the evidence offered by plaintiff, and so much of defendant's evidence as is favorable to the plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, as shown in the case on appeal, in the light most favorable to plaintiff, and giving to plaintiff the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as the law directs in considering a motion for judgment as of nonsuit, G.S. § 1-183, this Court is of opinion and holds that the evidence is insufficient to carry the case to the jury on the issue of negligence of defendant as alleged in the complaint, and that the question posed merits a negative answer.

Textwriters, interpreting the law as declared in courts of the land, say that "the rules governing the duty and liability of physicians and surgeons in the performance of professional services generally * * * are applicable to them in the use and manipulation of an X-ray machine"; that "the degree of care, skill, and diligence required of an X-ray operator is fixed by that ordinarily possessed and exercised by others in the same line of practice and work in similar localities"; and that "such operator impliedly represents to his patient that he possesses the ordinary skill and learning of members of his profession, and that he will exercise reasonable skill, care and diligence in his treatment". 41 Am.Jur. 207, Physicians and Surgeons, § 89. See also 70 C.J.S., Physicians and Surgeons, § 41, page 946.

And it is said that "this rule involves dual standards of skill and care, one having reference to the mechanical operation of the apparatus, and the other to the possession and exercise of the professional skill and care of the physician in his diagnosis and treatment of the patient's ailment in other respects than the mere operation of the machine"; and that "a physician who possesses the requisite skill and knowledge, and exercises ordinary and reasonable care and skill in the operation of an X-ray machine is not liable for damages for burns resulting from X-ray treatment in a proper case where no negligence is shown". 41 Am.Jur. pp. 207-8, Physicians and Surgeons, § 89. See annotations on subject "Liability for injury by X-ray". 13 A.L.R. 1414, 26 A.L.R. 732, 57 A.L.R. 268, and 60 A.L.R. 259.

While this Court has not treated of this particular phase of duty and liability of physicians, the principles are consonant with the rules enunciated by this Court, and prevailing in North Carolina in respect to the duty and liability of physicians in the performance of professional services generally. See Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485; Jackson v. Mountain Sanitarium, 234 N.C. 222, 67 S.E.2d 57; Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589.

In Nash v. Royster, supra, it is stated that the law holds a physician or surgeon "answerable for any injury to his patient proximately resulting from a want of that degree of knowledge and skill, ordinarily possessed by others of his profession, or for the omission to use reasonable care and diligence in the practice of his art, or for the failure to exercise his best judgment in the treatment of the case." [189 N.C. 408, 127 S.E. 359.]

Moreover, in the case of McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354, this Court held that the degree of care and skill required of a dentist to his patient is that possessed and exercised by the ordinary members of his profession. And in Smith v. McClung, 201 N.C. 648, 161 S.E. 91, 93, citing the McCracken case, the Court said that "dentists, in their particular fields, are subject to the same rules of liability as physicians and surgeons."

Accordant with the reasoning of these decisions, the rules governing the duty and liability of physicians and surgeons in the performance of professional services generally, may properly be applied to a physician practicing in the special field of dermatology, in the use and manipulation of an X-ray machine,—and this Court now so holds.

The burden is on plaintiff to show by evidence not only that defendant was negligent as alleged, in the complaint, but that his negligence was the proximate cause, or one of the proximate causes of plaintiff's injury. The acts of negligence alleged are that defendant caused plaintiff to be exposed to excessive amounts or dosages of X-ray for excessive periods of time. Therefore this question arises: Is there sufficient evidence to support the allegations? The proof should have been of such character as reasonably to warrant the inference required to be established, and not merely sufficient to raise a surmise or conjecture as to the existence of the essential fact. Smith v. Wharton, 199 N.C. 246, 154 S.E. 12; Grier v. Phillips, supra.

Plaintiff contends that where it is shown that defendant was in exclusive control of a dangerous instrumentality, an X-ray machine, and following treatment by defendant, plaintiff sustained third degree burn, the case should be submitted to the jury. He invokes the rule stated by Barnhill, J., in Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477, 479, that "When a thing which caused an injury is shown to be under the control and operation of the party charged with negligence and the accident is one which, in the ordinary course of things, will not happen if those who have such control and operation use proper care, the accident itself, in the absence of an explanation by the party charged, affords some evidence that it arose from want of proper care."

In this connection, it is not disputed that the X-ray machine used by defendant was under his control and operation. And conceding that there is evidence tending to show that there was third degree burn to the heel of plaintiff following the X-ray treatment administered by defendant, the evidence is insufficient to show that the burn is one which, in the ordinary course of things will not happen if defendant used proper care. The evidence is to the contrary.

Dr. Worth testifying as witness for plaintiff stated: "I will say * * * that in spite of skillful treatment by the use of X-ray for the removal of warts and in exercising the very best care that burns do sometimes occur". And plaintiff's witness Dr. Neal said: "I wouldn't say such burns often occur, but * * * they do occur in spite of skill and caution in using it." Moreover, the testimony of defendant and of the doctors introduced by him, including Dr. Worth, is to the same effect. Hence the principle declared in the Etheridge case is inapplicable to the factual situation in hand.

Indeed, all the evidence offered, as shown in the record and case on appeal, negatives the applicability of the doctrine of res ipsa loquitur—that is, that the thing speaks for itself.

Plaintiff contends also that there is evidence that the X-rav therapy was administered by Dr. Hitch's nurse who admittedly is not trained in radiology. In this connection attention is directed to plaintiff's statement: "I believe I said that on the second and third visits the nurse administered the X-ray treatments. I am not positive who gave the X-ray treatment the second and third times." This statement is too uncertain to have probative value. Hence it will not be considered as evidence that the nurse gave the treatment, —a fact which both she and defendant say did not occur.

Moreover, a reading of the entire evidence leads to the conclusion that the plaintiff's case is one of those unfortunate results which in medical science and learning could not have been foreseen or predicted. The evidence fails to show that it is the result of any neglect or lack of care on the part of defendant. Therefore he may not be held liable for it.

The judgment from which this appeal is taken is affirmed.