Koury v. Follo

158 S.E.2d 548 (1968) 272 N.C. 366

Victor A. KOURY
v.
Paige B. FOLLO.

No. 697.

Supreme Court of North Carolina.

January 12, 1968.

Douglas, Ravenel, Hardy & Crihfield, Greensboro, for plaintiff appellant.

Jordan, Wright, Henson & Nichols and William B. Rector, Jr., Greensboro, McLendon, Brim, Brooks, Pierce & Daniels by C. T. Leonard, Jr., Greensboro, for defendant appellee.

LAKE, Justice.

For the purposes of an appeal from a judgment of nonsuit, the plaintiff's evidence must be considered by us in the light most favorable to him and he must be given the benefit of every favorable inference which can reasonably be drawn therefrom. Strong, N. C. Index, Trial, § 21. Discrepancies, if any, in the plaintiff's evidence must be disregarded. He must be given the full benefit of all relevant evidence introduced, even though improperly admitted over objection seasonably entered. Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 232 N.C. 684, 61 S.E.2d 895; Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; 88 C.J.S. Trial § 244.

When so considered, the plaintiff's evidence is sufficient to support, though not to compel, these findings: The plaintiff took his nine months old baby to the defendant, a specialist in pediatrics, for treatment of a bad cold and bronchitis. The baby's illness could not be classified as an emergency. The defendant prescribed and caused to be administered to the baby five injections of a drug, the manufacturer of which caused to be stamped on each container in red letters, "NOT FOR PEDIATRIC USE," and caused to be packaged with each container of the drug an amplification and explanation of the warning against use for children. The defendant, knowing the drug contained streptomycin and that streptomycin may impair the nerve controlling the hearing apparatus, prescribed for this 20 pound infant a dosage, for each injection, equal to 75 per cent of the upper limits of the dosage stated on the manufacturer's label on the bottle to be the usual dosage for adult patients. This dosage was approximately double the upper safe limit of dosage for a 20 pound child, in the opinion of the plaintiff's expert witness, and approximately five times the dosage for such child computed according to "Clark's Rule" contained in a standard textbook on pediatrics. Prior to her treatment with this drug, the baby had normal hearing. The use of the drug prescribed by the defendant, in the dosage prescribed by him, caused the child to become totally deaf. In consequence of the deafness of his child, the plaintiff has incurred and must hereafter incur expense, beyond that which is normal, for the care and education of his child.

We are, of course, not to be understood as holding or implying that the evidence compels such findings or that the foregoing paragraph is a factually correct account of what occurred in and as a result of the treatment of the plaintiff's child by the defendant. The defendant has not yet had an opportunity to present evidence to show a different factual situation or to show that his treatment of the plaintiff's child was in accordance with the standard of care required of a physician prescribing drugs for administration to a nine months old baby suffering from acute bronchitis. What we do hold is that the plaintiff's evidence, considered in accordance with the above stated rule, is sufficient, if found by a jury to be true, to support findings as above stated and, therefore, the court erred in granting the defendant's motion for judgment of nonsuit. It is for the jury to determine the credibility and weight to be given the evidence and, after hearing the evidence of the defendant as well as that of the plaintiff, to determine the facts upon which the plaintiff's right to recover must stand or fall. Strong, N. C. Index, Trial, § 18.

We again reaffirm the rule stated by Higgins, J., speaking for this Court in Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762:

"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. [Citations omitted.] 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 question for us upon this appeal is whether there is substantial evidence in the record before us to support, though not to require, a finding by a jury that the plaintiff's child was made deaf by the defendant's failure to fulfil the second of these requirements.

The defendant is not a general practitioner. He is a specialist in the field of pediatrics. Consequently, he was required to bring to the treatment of the plaintiff's baby a degree of knowledge as to the probable effect of a drug upon so young a patient not required of a general practitioner of medicine. Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565; 41 Am. Jur., Physicians and Surgeons, § 90.

Of course, not even a specialist in a given field of medical practice is, in the absence of an extraordinary contract or representation, a guarantor of the success of his treatment or its freedom from adverse consequences to the patient. Mere proof that a patient does not survive a treatment prescribed or administered by a physician or surgeon, whether a general practitioner or one practicing in a special field, or that the patient emerges from the treatment in a worse condition than before it was administered, is not sufficient to impose liability for such consequence upon the physician or surgeon, for the doctrine of res ipsa loquitur does not apply. Starnes v. Taylor, N.C., 158 S.E.2d 339, decided this day; Belk v. Schweizer, supra; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Hunt v. Bradshaw, supra; Nash v. Royster, 189 N.C. 408, 127 S.E. 356. In the record before us, however, the plaintiff's evidence is amply sufficient, if true, to support a finding that the defendant prescribed for his tiny patient a powerful drug without reading, or in disregard of, express warnings printed by the manufacturer upon the container and upon a leaflet packaged with each container of the drug. It is sufficient, if true, to show that he prescribed a dosage far in excess of that recommended for so small a child by a standard textbook in his own special field of medicine. It was his duty to exercise reasonable care, not only in his diagnosis of his patient's disease, but also in ascertaining the probable effects of the drug he prescribed and to observe appropriate precautions in its use. Reed v. Church, 175 Va. 284, 8 S.E.2d 285.

Obviously, rules stated in medical textbooks, like those stated in other textbooks, may be in error or may be disproved by subsequent discoveries in the field. At most, they are but the opinion of the writer, who may be less well informed in the field than is the defendant. The same is true of the opinion expressed on the witness stand by the plaintiff's expert witness and the opinion expressed on the label by the manufacturer. Upon the motion for judgment of nonsuit, however, the plaintiff's evidence is to be taken as true and interpreted in the light most favorable to him. So interpreted, it is sufficient to justify the jury in finding that the defendant knew, or should have known, that to administer this powerful drug in so large a dose to so small a patient could well result in the precise catastrophe which such evidence indicates did result therefrom. The illness for which the drug was so administered was not such as to create an emergency calling for hazardous measures. It was an illness from which most children have suffered and from which most of them have recovered in due time without such treatment.

In Sharpe v. Pugh, 270 N.C. 598, 155 S.E.2d 108, we said:

"[I]t would be negligence if defendant prescribed, as a remedy for illnesses for which it was neither necessary nor suited, a drug which he knew or should have known was dangerous, without advising and warning Brenda's [a small child] parents of the possible or probable injurious effects from the use thereof."

This record does not show that Strep-Combiotic was not suited to the treatment of the bronchitis from which the plaintiff's baby was suffering. On the contrary, it is clear from the record that its use speedily cured that ailment. A physician may not, however, with immunity from liability, use for the treatment of a relatively minor ailment a remedy which he knows, or in the exercise of reasonable care should know, may produce a different ailment or disability far worse than the original disease. Before using such a drug upon a tiny child, in the absence of an emergency, the physician should make known to the parents of the child the possibility of adverse results which he knows or, in the exercise of care commensurate with his specialty, should know, is a reasonably possible result of the use of the drug. The plaintiff's evidence shows that the defendant did not so inform the parents of this little girl and thus give them the opportunity of an informed election between incurring the risk of prolonged bronchitis and possible pneumonia on the one hand and incurring the risk of total and permanent deafness of their child on the other.

With reference to the duty of the defendant to inform the plaintiff, or the child's mother, of the risk inherent in the use of this drug upon this patient, the present case is distinguishable from Starnes v. Taylor, supra. There, the patient was referred by his family doctor to the defendant surgeon for the purpose of having made the examination which was made, and the injury to the esophagus, while unlikely, was the kind of injury a patient, as well as a surgeon, could be expected to consider as a possible result of the insertion of the esophagoscope. Here, the danger was a hidden one which the defendant knew, or should have known, was unlikely to be suspected by the child's parents, and was one which expert testimony indicates to have been far more than a mere possibility when the dose is excessive. Furthermore, in this case, to warn the parent of the possible adverse result would in no way induce nervousness in the patient so as to decrease the likelihood of successful treatment.

The defendant contends in his brief that the court below erred in admitting in evidence the manufacturer's label upon the container of Strep-Combiotic and the excerpts from Nelson's Textbook on Pediatrics. There are two independently sufficient reasons why this argument is unavailing upon this appeal. (1) Upon a motion for judgment of nonsuit, all of the plaintiff's evidence relevant to the issue must be given full probative value, even though erroneously admitted. Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., supra; Ballard v. Ballard, supra. (2) The record indicates objections by the defendant to questions to witnesses concerning the contents of these printed documents, but not to the introduction of the documents themselves. There was no objection to the introduction of the adverse examination of the defendant in which he testified concerning the contents of the label and of the manufacturer's printed statement packaged with each bottle of Strep-Combiotic.

While the competency of this evidence is not before us upon this appeal, it is apparent that the same question is likely to arise upon the new trial which will be the result of our decision. We, therefore, direct attention to the principles of law by which the admissibility of this evidence and the purpose for which it may be considered by the jury are to be determined.

It is well settled in this State, and in other jurisdictions, that excerpts from medical textbooks, and similar publications, are incompetent as evidence to prove the correctness of a statement of fact or theory therein. State v. Summers, 173 N.C. 775, 92 S.E. 328; Tilghman v. R. R., 171 N.C. 652, 89 S.E. 71; Lynch v. Rosemary Manufacturing Co., 167 N.C. 98, 83 S.E. 6. See also, Sloan v. Carolina Power & Light Co., 248 N.C. 125, 102 S.E. 2d 822; Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333. Statements in such textbooks and documents are, in the final analysis, but the opinions of the author or his statement of facts observed by him or reported by others. They are not made under oath, the writer is not subject to cross examination and the opinion is not stated in response to a hypothetical question setting forth facts in evidence in the case on trial. Consequently, when offered as evidence of the truth of the statement made therein, the publication is objectionable both under the Hearsay Rule and under the rules applicable to opinion testimony by expert witnesses.

The same principles and objections apply to the admission in evidence of a statement by a manufacturer, printed upon or packaged with a container of his product, when such statement is offered to prove the truth of the statement.

The Hearsay Rule does not apply where the purpose of offering the extrajudicial statement is not to prove the truth of the statement, but merely to prove the fact that it was made and that the circumstances under which it was made were such as should reasonably have made it known to the litigant. Wilson v. Hartford Accident and Indemnity Corp., 272 N.C. 183, 158 S.E.2d 1. The display of a red flag bearing the word "DANGER," a shouted warning or a printed warning by a person other than the witness testifying thereto, may be shown, not to prove the fact of danger, but to prove the giving of a warning which the person in question should have seen or heard and taken into account. For this purpose, the label on the bottle of Strep-Combiotic was properly admitted in evidence. It is not proof that the drug was unsafe for use upon a child. See Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170. It is evidence of a warning which the physician disregards at his peril, and his disregard of it is relevant upon the issue of his use of reasonable care, where other evidence shows the drug is, in fact, dangerous to a child.

Upon this record, the judgment of nonsuit was improperly entered.

Reversed.