Starnes v. Taylor

158 S.E.2d 339 (1968) 272 N.C. 386

Charles Orr STARNES
v.
Frederick H. TAYLOR, M.D.

No. 276.

Supreme Court of North Carolina.

January 12, 1968.

Myers & Sedberry, Charlotte, for plaintiff appellant.

Helms, Mullis, McMillan & Johnston, by James B. McMillan and R. Malloy McKeithen, Charlotte, for defendant appellee.

LAKE, Justice.

Unquestionably, the evidence of the plaintiff is sufficient, when taken to be true as it must be upon a motion for judgment of nonsuit, to show that in the course of the esophagoscopy performed by the defendant, the plaintiff's esophagus was perforated and that infection resulted therefrom, causing the plaintiff to become a very sick man and to sustain pain, suffering, prolonged disability and increased expense. The question for determination is whether the evidence is sufficient to support a finding that the proximate cause of these unfortunate occurrences was a negligent failure of the defendant to perform a professional duty owed by him to the plaintiff, his patient.

Proof that the plaintiff, as patient, was operated upon or treated by the defendant, as surgeon or physician, and that, as a result of such operation or treatment, the plaintiff was injured and his condition was worse after the operation or treatment than before is not sufficient to establish liability of the defendant for such injury. The doctrine of res ipsa loquitor does not apply to such a situation. To establish liability upon the surgeon or physician in malpractice cases, there must be proof of actionable negligence by the defendant, which was the proximate cause of the plaintiff's injury or worsened condition. The surgeon or physician is not, ordinarily, an insurer of the success of his operation or treatment, Lentz v. Thompson, 269 N.C. 188, 152 S.E.2d 107; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617; Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762; Nash v. Royster, 189 N.C. 408, 127 S.E. 356. In the absence of proof of a contract to that effect, a surgeon or physician does not warrant a cure, or even that the patient will be in as good condition after the operation or treatment as he was in prior thereto. Smith v. McClung, 201 N.C. 648, 161 S.E. 91.

The measure of the undertaking and duty of a surgeon or physician, in the absence of proof of a different contract, is thus stated by Higgins, J., speaking for the Court in Hunt v. Bradshaw, supra:

"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."

In the present case there is no contention that the defendant, at the time of his treatment of the plaintiff, did not possess the degree of professional learning, skill and ability ordinarily possessed by others in that branch of the practice of medicine in which he engages and which was involved in the procedure performed upon the plaintiff. It is likewise not contended that the defendant failed in any way to exercise properly such skill and care in all subsequent operations for and treatment of the plaintiff's condition after the discovery of the complication resulting from the perforation of the esophagus. The plaintiff contends that the defendant was negligent in that: (1) He failed prior to the commencement of the esophagoscopy to advise the plaintiff of the risk of such perforation of the esophagus and of the resulting infection; (2) he perforated the wall of the esophagus in the course of this procedure; (3) he failed to discover the perforation and commence the corrective procedures earlier. The question for us to determine is whether the plaintiff has introduced sufficient evidence of any of these allegations to justify the submission of the issue of the defendant's negligence to the jury.

The plaintiff does not contend that the performance of an esophagoscopy was not indicated by the result of prior examinations of the plaintiff's condition, or that the decision to perform it was not in accord with the highest standards of medical judgment. This Court has discussed the duty of a physician or surgeon to advise his patient, or the parent or other person acting for the patient, of risks inherent in a proposed operation or treatment in Sharpe v. Pugh, 270 N.C. 598, 155 S.E.2d 108; Watson v. Clutts, supra; and Hunt v. Bradshaw, supra. We adhere to the principles there stated. See also the discussion of this matter in Annotation, 79 A.L.R. 2d 1028. As in Sharpe v. Pugh, supra, we deem it unnecessary and unwise to attempt, in the decision of this appeal, to define precisely the extent and limits of the legal duty of a physician or surgeon to make known to his patient, or to the person acting for the patient, the possible or probable adverse effects from a contemplated operation, treatment or use of a drug.

Where, as here, there is no contention of fraud or misrepresentation by the surgeon in order to induce the patient to undergo an unnecessary or unwise surgical procedure, and the likelihood of an adverse result is relatively slight, much must be left to the discretion of the physician or surgeon in determining what he should tell the patient as to possible adverse consequences. While the patient, or the person acting for him, has the right to an informed election as to whether to undergo the proposed operation, treatment or to take a prescribed drug, it must be borne in mind that the physician's or surgeon's primary concern at the time of the consultation is, and should be, the treatment of the patient's illness or disability, not preparation for the defense of a possible lawsuit. Obviously, an increase in the normal anxiety of one about to undergo a surgical procedure is not medically desirable. Advice, which is calculated to increase such anxiety by recounting unlikely possibilities of undesirable consequences, is not consistent with the above stated duty of the physician or surgeon to his patient. A different situation is presented when the physician or surgeon knows, or should know, the proposed operation, treatment or drug has a high ratio of adverse reactions or complications of a serious nature, not likely to be known to the patient. See: Sharpe v. Pugh, supra; Mitchell v. Robinson, (Mo.) 334 S.W.2d 11, 79 A.L.R. 2d 1017.

The evidence in this record does not disclose any false statement or unwarranted assurance by the defendant to the plaintiff. The evidence is that the occurrence of a perforation of the esophagus in the course of the procedure here contemplated and followed is quite unusual, the incidence being one to 250 or one to 500. The evidence is that the defendant gave the plaintiff the customary warning that any surgical procedure is accompanied by some risk of unfortunate consequences. There is nothing to indicate that the most complete discussion of the risk attendant upon this procedure would have deterred the plaintiff from consenting to its performance. Therefore, there is no evidence of negligence by the defendant prior to the performance of the esophagoscopy.

There is a complete absence of evidence of negligence in the performance of the procedure itself. The evidence is that the equipment used was standard for that purpose. There is nothing to indicate that it was not in perfect condition. There is no evidence of undue force, neglect or lack of skill in the manipulation of the esophagoscope. The evidence is clear and undisputed that the defendant observed the walls of the esophagus as he withdrew the equipment and did not detect the perforation, which appears to have been quite small and to have produced no bleeding. There is no evidence to indicate that he should have detected it in that process. The evidence, therefore, is not sufficient to support a finding of any negligence by the defendant in the performance of the esophagoscopy.

The surgeon's duty to his patient does not, of course, end with the termination of the operation itself, nothing else appearing. As Stacy, C. J., said for this Court in Nash v. Royster, supra, the surgeon "must not only use reasonable and ordinary care, skill, and diligence in its performance, but, in the subsequent treatment of the case, he must also give, or see that the patient is given, such attention as the necessity of the case demands." In Galloway v. Lawrence, supra, we held that evidence, from which the jury could reasonably infer that a surgeon, who was advised by the nurse in charge of the patient of symptoms indicating the onset of a dangerous complication, had delayed unreasonably a further examination of the patient, required the submission to the jury of the issue of negligence in the post operative treatment.

The evidence in this case is not of that nature. It shows that the defendant saw the plaintiff in the recovery room after the esophagoscopy and there was then no indication of any complication. There is nothing in this record to indicate that, in the absence of a perforation of the esophagus, any complication was to be anticipated as even a possibility. Perforations of the esophagus by the procedure here followed are rare. None had been observed as the esophagoscope was withdrawn in this case. Under these circumstances, the defendant was not negligent in returning to his office, leaving the plaintiff in the care of a competent hall nurse.

The record does not indicate that pain and difficulty in swallowing, after the wearing off of the anesthetic, is unusual following an esophagoscopy. Evidently, such pain was anticipated since the defendant left instructions for the administration of tablets to relieve pain after two hours. There is nothing in the record to indicate that the telephone calls from the hall nurse, prior to the expiration of the two hours, disclosed anything other than the presence of normal pain. There was no visible swelling of the neck. Five hours after the conclusion of the procedure the defendant returned to the hospital for a routine check upon his patient. He then discovered symptoms which he then correctly interpreted as indicating a perforation of the esophagus, for which he took immediate corrective action. We find in this record no evidence of negligence by the defendant in the post operative care of his patient. Consequently, the judgment of nonsuit was proper.

No error.