Hunt v. Bradshaw , 242 N.C. 517 ( 1955 )

88 S.E.2d 762 (1955) 242 N.C. 517

Charles S. HUNT
v.
Dr. Howard BRADSHAW.

No. 746.

Supreme Court of North Carolina.

August 26, 1955.

Eugene H. Phillips, Winston-Salem, for plaintiff, appellant.

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendant, appellee.

HIGGINS, Justice.

A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. Long v. Austin, 153 N.C. 508, 69 S.E. 500; Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Smith v. McClung, 201 N.C. 648, 161 S.E. 91; Wilson v. Martin Memorial Hospital, 232 N.C. 362, 61 S.E.2d 102; Jackson v. Mountain Sanitarium, 234 N.C. 222, 67 S.E.2d 57. If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.

The plaintiff does not contend Dr. Bradshaw was deficient, either in learning or skill, or ability as a surgeon. He does contend, however, the defendant was not reasonably careful and diligent in making use of his knowledge, skill and ability, in advising the operation, and in performing it. In particular the plaintiff contends:

1. He was free from pain, fever or other symptoms and that an operation was not necessary.

2. The operation was undertaken without adequate x-ray pictures to enable the defendant to locate with sufficient certainty the piece of steel so that it could be directly approached and removed without extensive exploratory operation and search.

3. The defendant advised the plaintiff the operation was simple, whereas it was serious and involved undisclosed risks.

In determining whether the operation should have been undertaken, resort must be had to the evidence of experts. Expert opinion must be founded upon expert knowledge. The plaintiff offered the evidence of two specialists. Dr. Marr testified: "My field is x-ray examinations. I do not specialize in or practice surgery to any major extent * * * trying to remove this missile calls for very expert ability in the field of surgery." Dr. Marr expressed no opinion as to the advisability of the operation.

Dr. Jeffreys testified: "I think it is the usual practice to remove objects that lie in this region and have given evidence that they have penetrated tissues of vital function; and I would consider it within the realm of good surgical practice in this territory, or any other territory." The witness did state, in response to a hypothetical question that in the absence of symptoms he would be inclined not to operate. The plaintiff, therefore, is without expert testimony to support his contention the operation should not have been undertaken. The plaintiff's witness said the operation is in accord with good surgical practice.

The plaintiff insists the operation was undertaken without adequate x-ray photographs. He testified Dr. Bradshaw had available for use in the operation the five x-rays introduced in evidence and that at least one other was made during the course of the operation, the latter not in evidence. Dr. Jeffreys was asked a hypothetical question as to whether x-rays in addition to the five introduced in evidence would be in accordance with good surgical practice. Witness, after pointing out the fact he did not have the photograph taken during the operation, said: "And these x-rays show the piece of metal in the base of the neck, that it is present; there is left, perhaps, the other view, which was not present in exhibits, that is mentioned in the question * * * which gives you another dimensional view * * *. But that might have been desirable, but I can't say that it was necessary, * * * I would say that more x-ray views, giving all planes, as to location, its anteroposterior location * * * would aid in giving a more * * * concise view; but it still might not locate it exactly." When analyzed, nothing in this statement is to the effect that good surgical practice required additional x-rays.

The plaintiff's evidence is sufficient to support a finding the operation was of a very serious nature. Dr. Bradshaw, after examination, advised the plaintiff the missile might move and get to the heart, and recommended the operation. That a sharpedged piece of steel does migrate is borne out by plaintiff's expert evidence, especially by Dr. Jeffreys. Upon Dr. Bradshaw's advice the operation was decided upon. It is understandable the surgeon wanted to reassure the patient so that he would not go to the operating room unduly apprehensive. Failure to explain the risk involved, therefore, may be considered a mistake on the part of the surgeon, but under the facts cannot be deemed such want of ordinary care as to import liability.

Proof of what is in accord with approved surgical procedure and what constitutes the standard of care required of the surgeon in performing an operation, like the advisability of the operation itself, are matters not within the knowledge of lay witnesses but must be established by the testimony of qualified experts. When the standards have been thus established, lay testimony may be sufficient to enable the jury to determine whether these standards were followed with ordinary care and diligence. Smith v. Wharton, 199 N.C. 246, 154 S.E. 12.

Plaintiff's expert testimony is sufficient to justify the finding the injury and damage to plaintiff's hand and arm resulted from the operation. But, as in cases of ordinary negligence, the fact that injury results is not proof the act which caused it was a negligent act. The doctrine res ipsa loquitur does not apply in cases of this character. McLeod v. Hicks, 203 N.C. 130, 164 S.E. 617. In the case of Smith v. Mc-Clung, supra [201 N.C. 648, 161 S.E. 93], Justice Brogden, quoting from Ewing v. Goode, C.C., 78 F. 442, said: "``A physician is not a warrantor of cures. If the maxim "res ipsa loquitur," were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the "ills that flesh is heir to."'"

Of course, it seems hard to the patient in apparent good health that he should be advised to undergo an operation, and upon regaining consciousness finds that he has lost the use of an arm for the remainder of his life. Infallibility in human beings is not attainable. The law recognizes, and we think properly so, that the surgeon's hand, with its skill and training, is, after all, a human hand, guided by a human brain in a procedure in which the margin between safety and danger sometimes measures little more than the thickness of a sheet of paper.

The plaintiff's case fails because of lack of expert testimony that the defendant failed, either to exercise due care in the operation, or to use his best judgment in advising it. As was said in Smith v. Wharton, supra [199 N.C. 246, 154 S.E. 15], "``There can be no other guide, and, where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury.'"

The judgment of nonsuit entered in the Superior Court is

Affirmed.

BOBBITT, Justice (concurring).

Plaintiff's cause of action is grounded on the alleged negligence of the defendant. The allegations embrace two elements: (1) alleged negligence in advising the performance of the operation, and (2) alleged negligence in the performance thereof.

The court holds that the evidence fails to show that defendant's recommendation that plaintiff undergo the operation was made otherwise than in good faith and in the exercise of the sound judgment of a surgeon of great experience and recognized skill and also fails to show negligence in the performance of the operation. With these holdings I agree.

True, plaintiff alleges that when defendant recommended that the operation be performed, defendant negligently represented to him that the "operation was a simple one which entailed and involved no danger to the plaintiff's health and body" and that "but for said representations * * * the plaintiff would not have submitted to said operation." But plaintiff did not allege that said representations were false to the knowledge of the defendant or other facts that might nullify his consent to the operation. In short, plaintiff's action is not for assault and battery, or trespass to the person, predicated upon allegations of an unauthorized operation.

An unauthorized operation constitutes an assault and battery, i. e., trespass to the person. As stated by Judge Cordozo, speaking for the Court of Appeals of New York: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A.,N.S., 609, 8 Ann.Cas. 197; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A.,N.S., 439, 111 Am. St. Rep. 462, 5 Ann.Cas. 303. This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained." Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93, 52 L.R.A.,N.S., 505, Ann.Cas.1915C, 581. See also, Bennan v. Parsonnet, 83 N.J.L. 20, 83 A. 948; Moos v. United States, D.C., 118 F. Supp. 275. In Mohr v. Williams, supra [95 Minn. 261, 104 N.W. 14], Brown, J., quotes 1 Kinkead on Torts, sec. 375, viz.: "``The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal one. Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.'" And there is authority to the effect that consent to perform an operation is not valid if induced by representations that are false to the knowledge of the surgeon who makes them. Birnbaum v. Siegler, 273 A.D. 817, 76 N.Y.S.2d 173; Pratt v. Davis, supra; Wall v. Brim, 5 Cir., 138 F.2d 478; Nolan v. Kechijian, 75 R.I. 165, 64 A.2d 866; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Wall v. Brim, 5 Cir., 145 F.2d 492.

Whether plaintiff's evidence would be sufficient for submission to the jury had he elected to bring his action on the ground of injury resulting from an unauthorized operation is not presented for decision on this record. Suffice it to say, plaintiff did not bring such action.

It seems appropriate to say that we have before us only the plaintiff's testimony as to the alleged representations. Judgment of involuntary nonsuit having been entered at the close of the plaintiff's evidence, the defendant was not heard as to his version of what occurred.