Weatherman v. White

179 S.E.2d 134 (1971) 10 N.C. App. 480

Mary L. WEATHERMAN
v.
Dr. Edward R. WHITE.

No. 7121SC5.

Court of Appeals of North Carolina.

February 24, 1971.

White, Crumpler & Pfefferkorn, by Joe P. McCollum, Jr., William G. Pfefferkorn, and James G. White, Winston-Salem, for plaintiff appellant.

Hudson, Petree, Stockton, Stockton & Robinson, by John M. Harrington, Ralph M. Stockton, Jr., and William F. Maready, Winston-Salem, for defendant appellee.

BRITT, Judge.

In Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955), cited in briefs for both parties, in an opinion written by Higgins, Justice, we find the following:

"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. (Citing authority.) 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 Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565 (1966), in an opinion by Parker, Chief Justice, we find the following:

"A qualified physician or surgeon does not guarantee or insure the correctness of his diagnosis, and ordinarily he is not responsible for a mistake in diagnosis if he uses the requisite degree of skill and care. Generally stated, a qualified physician or surgeon is not liable for an honest error or mistake in judgment if he applies ordinary and reasonable skill and care, keeps within recognized and approved methods, and forms his judgment after a careful and proper examination or investigation. He is not charged with the duty of omniscience, and ordinarily is not an insurer. In order to afford a basis for an action for malpractice, the want of skill or care must be a proximate cause of the injury or death of the patient. 70 C.J.S. Physicians and Surgeons § 48, a, c, d, e."

We hold that the trial court properly allowed defendant's motion for a directed verdict. In the first place, we think that plaintiff failed to show negligence on the part of defendant. None of the testimony presented by plaintiff herself or by her witnesses indicates that defendant failed to possess the requirements set forth in Hunt v. Bradshaw, supra, quoted above. Her evidence indicates that defendant, taking into account plaintiff's condition, exercised reasonable care and his best judgment in her treatment. The testimony of Dr. Means and Dr. Amparo tended to show that many women have a fibrotic condition, that is, lumps in their breasts; that whether these lumps are treated or allowed to remain untreated is decided by the individual doctor based upon the patient's history as well as the size, texture and shape of the lumps. They also testified that it was not the general practice to remove all lumps found in women's breasts merely because they were there. There was further testimony that the fibrotic or cystic disease is not cancerous but that its presence makes the detection of cancer much more difficult because the symptoms of the former mask or hide those of the other; that no one can tell when or where a cancer forms or how long it has been there; that a cancer may remain small for a long time or it may grow rapidly. Dr. Dudley testified that the tissue he examined, which was removed from plaintiff's breast, contained a fibrotic condition as well as a cancerous one. There was no showing that the cancerous lump was present at the time defendant last examined plaintiff; neither was there testimony that the lump which plaintiff was aware of was the same lump that was determined to be cancerous. Dr. Means testified that the cancer which he found "was not near the surface, superficial area." He further testified that when he first examined plaintiff's breast he did not have any suspicions at that time about cancer; that he was surprised that the mass which he removed was found to be cancerous.

There is an additional reason why the trial court was correct in allowing defendant's motion for a directed verdict. In order for plaintiff to make out a prima facie case, it was necessary that she not only show negligence on the part of defendant, but that such negligence was the proximate cause of her injury—that the negligence shown had a causal relationship to the injury complained of. 6 Strong N. C. Index 2d, Negligence, Sec. 8, pp. 17-18. If the evidence failed to show a causal connection between alleged negligence and the injury complained of, motion for directed verdict in favor of defendant was proper. Reason v. Singer Sewing Machine Company, 259 N.C. 264, 130 S.E.2d 397 (1963). Conceding, arguendo, that plaintiff showed negligence on the part of the defendant, we think she failed to show causal connection between the negligence and the injury complained of.

The testimony of all the doctors was to the effect that once cancer is found in a woman's breast, removal of the breast is the only proper treatment since failure to remove could cause death of the patient. Dr. Starling testified: "* * * I think the most generally accepted procedure throughout the country, in Winston-Salem and every place—is a radical mastectomy. * * * Where the lump is discovered to be cancerous while it is still small, say, the size of a marble, it would be the same procedure." Dr. Amparo testified: "* * * (E)ven when it is of microscopic size, or later, and at any other stage, * * * the standard accepted treatment for that cancer whenever it is diagnosed is removal of the breast." Dr. Dudley testified: "* * * (I)f cancer is there, the breast must be taken off, if it is as small as a pea or as large as a lemon, it still must be taken off right then. If there was some way to diagnose it even in the earliest stages, we would still remove the breast * * * It would be the customary procedure in this community to also remove the muscles, the underlying muscles, although there are some exceptions. Some surgeons like to spare the muscles, if they can. I would say probably 80 percent or more of the operations we get they take the muscles as well as the breast. It does not make a difference as to whether it is an early discovery or an enlarged tumor. * * * It is normal procedure, also, to remove the lymph nodes in the area under the armpit. That's standard procedure." Dr. Means testified: "I determined it was necessary at that time to proceed with the usual cancer operation, which involves a radical mastectomy and axillary section; removing the lymph nodes under the armpit, which is the usual operation for malignancy of the breast."

For reasons stated, the judgment of the superior court is

Affirmed.

CAMPBELL and HEDRICK, JJ., concur.