Dickens v. Everhart

199 S.E.2d 440 (1973) 284 N.C. 95

Boyd S. DICKENS, Administrator of the Estate of Shirley Marie Dickens
v.
Dr. C. D. EVERHART.

No. 12.

Supreme Court of North Carolina.

October 10, 1973.

White & Crumpler by James G. White and Michael J. Lewis, Winston-Salem, for plaintiff.

Folger & Folger by Fred Folger, Jr., Mount Airy, for defendant.

LAKE, Justice.

The basis of liability of a physician or surgeon for negligence in the care of his patient is thus stated 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."

To the same effect see: Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339; Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493; Strong, N.C.Index 2d, Physicians, Surgeons, etc., § 11.

Thus, it is not enough to absolve the physician from liability that he possesses the required professional knowledge and skill. He must exercise reasonable diligence in the application of that knowledge and skill to the particular patient's case and give to the patient such attention as the case requires from time to time. Galloway v. Lawrence, supra. On the other hand, a qualified physician, who forms his judgment after a careful and proper examination or investigation of the particular patient's condition, is not an insurer of his diagnosis or of the success of his treatment and is not liable for an honest error of judgment. Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565; Kennedy v. Parrott, 243 N.C. 355, 90 S.E.2d 754. The requirement as to care and knowledge extends to the physician's selection and use of drugs in the treatment of the patient and to his knowledge of the dangers inherent in their use. Koury v. Follo, supra.

In Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393, this Court rejected the "locality rule" to the effect that, in order to recover on the ground of failure to possess or use the requisite professional skill and ability, the injured patient must prove that the defendant failed to possess or use the skill and ability customary in the community in which the service was rendered. We there reaffirmed the rule that the physician or surgeon must possess the degree of learning, skill and ability which others similarly situated ordinarily possess. Thus, the general practitioner is not liable by reason of his failure to possess the degree of knowledge and skill ordinarily possessed by a specialist in the field of his specialty. Similarly, the character of the community in which the defendant practices is a circumstance to be considered in determining the degree of skill and ability to be required of him. Prosser on Torts, 3rd ed., Negligence, p. 166. He is, however, held to the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice. Thus, in Wiggins v. Piver, we held that an expert witness, otherwise qualified, may state his opinion as to whether the treatment and care given by the defendant to the particular patient came up to the standard prevailing in similar communities, with which the witness is familiar, even though the witness be not actually acquainted with actual medical practices in the particular community in which the service was rendered at the time it was performed.

It follows that the learned trial judge erred in his conclusion and ruling that, because Dr. Toyama was not in 1964 familiar with the quality of medical practice in Mount Airy, Dr. Toyama could not state his opinion as to whether the defendant's treatment of Shirley Marie Dickens was in accord with accepted medical practice in 1964 in a community similar to Mount Airy.

The answers given by the witness, in the absence of the jury, to the hypothetical questions propounded were somewhat equivocal. We are unable to say, however, that had the jury heard them the verdict would not have been affected thereby. Consequently, the error of the trial court cannot be deemed harmless.

The Court of Appeals took the view that, since the plaintiff did not formally tender Dr. Toyama as an expert witness, the ruling of the trial court could not be deemed reversible error and so the question of his qualification to answer the hypothetical questions propounded was not reached. In this we think the Court of Appeals erred.

The record discloses that Dr. Toyama first testified in detail as to his medical education, internship and practice in the field of Pathology. Without objection, he testified as to the meaning of certain medical terms used by another medical witness as descriptive of the condition of this girl, saying that these were synonymous with blood poisoning, and testified as to accepted treatment therefor. The first of the hypothetical questions to which objections were interposed then followed. No ground for the objection was stated. In response to a question by the court, the witness then testified that he came to North Carolina after the treatment of this patient by the defendant. It was expressly on that ground that the court sustained the objections to the several hypothetical questions. After the first objection was sustained and the answer of the witness thereto was put into the record in the absence of the jury, he continued to testify, without objection, concerning the effects of Codeine and Mepergan upon the respiratory and nervous systems.

When the witness was asked to compare the community in California in which he had practiced with the community of Mount Airy, the court sustained an objection by the defendant. The jury was then excused. In its absence, a voir dire was conducted in which the two communities were compared and the experience of the witness, as a practicing pathologist, was set forth. The jury then returned and in its presence hypothetical questions, proper in form, were propounded as to whether the administration of the shots of Mepergan and Codeine to this patient was in accordance with accepted medical practice "in the community including the community of Mount Airy." The court sustained the objection of the defendant to these questions, stating that his reason for doing so was that, since Dr. Toyama was elsewhere in 1964, it was "impossible for him to know what is the customary practice in this case at that time."

Obviously, the plaintiff was tendering Dr. Toyama as a medical expert witness and the defendant and the court so understood. It is equally obvious that the defendant's objections were not directed to Dr. Toyama's general qualifications as an expert pathologist but were objections to the specific questions on the ground that Dr. Toyama was not qualified to answer them. The court expressly ruled, as a matter of law, on his qualification to answer those questions.

Nothing else appearing, when a question calling for the opinion of a witness, not previously offered as an expert, is propounded and an objection is made, if there is no finding by the court, or admission by the adverse party, that the witness is qualified to testify as an expert, the sustaining of the objection will not be held error by the appellate court. Lumber Co. v. Railroad, 151 N.C. 212, 65 S.E. 920; Stansbury, North Carolina Evidence, 2d Ed. § 133; Strong, N.C.Index 2d, Evidence, § 48. It is always the better practice for the party offering an expert witness to tender him as such formally and to request the court to find him to be such. See, State v. Perry, 275 N.C. 565, 169 S.E. 2d 839. However, to apply the above stated general rule under the facts of this case is to look solely to form and to disregard substance. The intent to offer the witness as an expert being clear, his qualifications being shown and the adverse ruling of the court thereon being expressly stated, together with the reason therefor, the record presents for appellate review the validity of the court's ruling.

The judgment of the Court of Appeals is, therefore, reversed and the matter is remanded to that court for the entry of an order granting a new trial.

Reversed and remanded.