Waynick v. Reardon

72 S.E.2d 4 (1952) 236 N.C. 116

WAYNICK
v.
REARDON et al.

No. 741.

Supreme Court of North Carolina.

August 22, 1952.

W. R. Dalton, Sr., Reidsville, D. E. Scarborough, Yanceyville, and W. R. Dalton, Jr., Burlington, for plaintiff-appellant.

E. C. Bryson, and Fuller, Reade, Umstead & Fuller, Durham, for defendants-appellees.

VALENTINE, Justice.

The decisive question presented by this appeal is whether the evidence sufficeth to take the case to the jury.

Many variations of the rule defining the quantum of proof necessary to carry a case to the jury have been evolved through the years. Davidson v. Western Union Telegraph Co., 207 N.C. 790, 178 S.E. 603; Mitchell v. Saunders, 219 N.C. 178, 13 S.E.2d 242; Stell v. First-Citizens Bank & Trust Co., 223 N.C. 550, 27 S.E.2d 524; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A. L.R.2d 881; Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791. But the whole matter distilled and boiled down involves the process of placing all of plaintiff's evidence and so much of defendant's evidence as is favorable to plaintiff in evenly balanced scales to see if such evidence weighs against nothing, and if, by this procedure, more than a scintilla of evidence favorable to the plaintiff is found, a jury question is presented. Cox. v. Norfolk & C. R. Co., 123 N.C. 604, 31 S.E. 848; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330; Adcox v. Austin, 235 N.C. 591, 70 S.E.2d 837. This principle applies with force to the record now under consideration.

It appears from the evidence, including excerpts from the pleadings, that at all times material to this litigation Dr. Reardon was an agent, servant and employee of Duke Hospital and was acting within the scope of his duty as such agent. It follows, therefore, if Dr. Reardon was guilty of actionable negligence, such negligence is imputable to his co-defendant and both are liable.

The plaintiff contends that the evidence supports many inferences of negligence, among which are these:

(a) That Dr. Reardon, without plaintiff's permission, made haste to perform a serious operation without having first obtained a fixed and definite diagnosis, and when there was no necessity for such an operation.

(b) That Dr. Reardon should not have undertaken such a serious operation without first determining that there was available in the hospital a more experienced and capable surgeon upon whom he could call for consultation and aid in case of difficulty.

(c) That Dr. Reardon extended the operative procedure too long and neglected to call for experienced surgical aid when he encountered a situation requiring skill outside the scope of his experience and beyond the range of his training.

(d) That the severe damage done to plaintiff's venal structure by Dr. Reardon resulted in so much loss of blood that Dr. Hart when summoned was unable to repair the damage, but directed his attention immediately toward saving the patient's life, with the result that plaintiff survived but suffered disastrous results.

(e) That Dr. Reardon performed a defective amputation of plaintiff's left leg.

(f) That Dr. Reardon's statement to the plaintiff, "I played hell; that is what happened," indicated a consciousness of carelessness in the performance of the operation.

We are constrained to agree with the plaintiff that whether Dr. Reardon proceeded with that degree of ordinary care required of him under the circumstances and conditions shown by the record was a question of fact for the jury. Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358; Covington v. James, 214 N.C. 71, 197 S.E. 701; Butler v. Lupton, 216 N.C. 653, 6 S.E.2d 523; Davis v. Wilmerding, 222 N.C. 639, 24 S.E.2d 337.

"The absence of expert medical testimony, disapproving the treatment or lack of it, is not perforce fatal to the case. There are many known and obvious facts in the realm of common knowledge which speak for themselves, sometimes even louder than witnesses, expert or otherwise." Gray v. Weinstein, 227 N.C. 463, 42 S.E.2d 616, 617.

Hospitals and members of the medical profession are held in high esteem and in most cases enjoy the general affection of the public. They are, of course, entitled to every reasonable consideration, but there should not be drawn around them unnatural or artificial immunities to shield them against acts of negligence. They are not guarantors of effective cures or of perfect operative results. Nevertheless, the law of negligence holds a physician or surgeon liable for an injury to a patient proximately resulting from a want of that degree of knowledge and skill ordinarily possessed by other members of his profession, or for a failure to use reasonable care and diligence in the practice of his art, or for his failure to exercise his best judgment in the treatment of his patient. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Davis v. Wilmerding, supra. Every negligence case, like the proverbial tub, "must stand on its own bottom."

We, of course, express no opinion as to the truth or falsity of the evidence, but viewing it with that liberality required under the circumstances here presented, we reach the conclusion that the permissible inferences are such as to make the issue of liability one for the jury. Therefore, the judgment of nonsuit must be

Reversed.

JOHNSON, J., concurs in result.