Sharpe v. Pugh

203 S.E.2d 330 (1974) 21 N.C. App. 110

Homer M. SHARPE, Administrator of the Estate of Brenda Adeline Sharpe
v.
Dr. V. Watson PUGH.

No. 7310SC211.

Court of Appeals of North Carolina.

March 20, 1974.

Boyce, Mitchell, Burns & Smith by F. Kent Burns and G. Eugene Boyce, Raleigh, for plaintiff appellant.

Maupin, Taylor & Ellis by W. W. Taylor, Jr., and Richard C. Titus, and Manning, Fulton & Skinner by Howard E. Manning, Raleigh, for defendant appellee.

BRITT, Judge.

Plaintiff assigns as error the exclusion from evidence of plaintiff's exhibits 14, 15, 16, 23, 24 and 25 and testimony as to their availability to doctors generally, and the dismissal of the action by directed verdict. We find no merit in either assignment.

The excluded exhibits were descriptive literature prepared by or for the manufacturer of chloromycetin and contained the following:

"WARNING

"Serious and even fatal blood dyscrasias (aplastic anemia, hypoplastic anemia, thrombocytopenia, granulocytopenia) are known to occur after the administration of chloramphenicol [chloromycetin]. Blood dyscrasias have occurred after both short term and prolonged therapy with this drug. Bearing in mind the possibility that such reactions may occur, chloramphenicol should be used only for serious infections caused by organisms which are susceptible to its antibacterial effects. Chloramphenicol should not be used when other less potentially dangerous agents will be effective, or in the treatment of trivial infections such as colds, influenza, or viral infections of the throat, or as a prophylactic agent.

"Precautions: It is essential that adequate blood studies be made during treatment with the drug. While blood studies may detect early peripheral blood changes, such as leukopenia or granulocytopenia, before they become irreversible, such studies cannot be relied on to detect bone marrow depression prior to development of aplastic anemia."

In Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548 (1968), the court held that literature of the type excluded in this case, when offered to prove the truth of the statement, is inadmissible under the hearsay rule; however, it is admissible to show the giving of a warning by the manufacturer. We quote from the opinion (p. 376, 158 S.E.2d p. 556): "It is not proof that the drug was unsafe for use upon a child. (Citation.) 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."

In Hunt v. Bradshaw, 242 N.C. 517, 521-522, 88 S.E.2d 762, 765 (1955), the court said:

"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.) 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."

Reaffirmed in Koury v. Follo, supra.

Clearly the trial court did not err in excluding the exhibits to prove the truth of the warning. Assuming, arguendo, that they were admissible to show that defendant knew, or should have known, of the dangerous propensities of chloromycetin, we are of the opinion that there was a complete lack of evidence to establish the standard of care which defendant was required to adhere to in order for the jury to determine that he prescribed the drug chloromycetin for Brenda without exercising reasonable care and diligence, or that defendant failed to use his best judgment in his treatment of Brenda. This case does not fall within the scope of the rule that where the physician's lack of due care is so gross as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it, that expert evidence as to the standard of care the physician was required to meet is not necessary. See Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553 (1944). Rather, the standard of care in the treatment and prescription of the drug chloromycetin is peculiarly within the province of the experts, and in this case there was no expert testimony to establish the standard of care.

The only evidence we have discovered in the record which would indicate when chloromycetin should be prescribed and administered is the precautionary statement included in the warning quoted above, and that evidence was inadmissible to prove the truth of the statement.

We are not unmindful of the statement made in the opinion in the former appeal of this case that defendant may have been negligent if he failed to advise or warn Brenda's parents with reference to the dangers inherent in the use of chloromycetin, where defendant prescribed the drug as a remedy for illness for which it was neither necessary nor suited, knowing that the drug was dangerous. However, we are of the opinion that while the evidence was sufficient to support a jury finding that the defendant prescribed and administered chloromycetin, knowing it could cause aplastic anemia, and that defendant failed to warn Mr. and Mrs. Sharpe about this dangerous side effect, the evidence was insufficient to support a jury finding that the drug was prescribed as a remedy for illnesses for which it was neither necessary nor suited. As to the appropriateness of prescribing chloromycetin to treat viral infections, there is a total paucity of expert testimony or any other testimony. Once again the only evidence in this regard is the warning appearing on the face of the excluded exhibits and they were not admissible for that purpose.

Assuming, arguendo, that plaintiff's evidence was sufficient to establish a prima facie case of negligence—that defendant was negligent in prescribing and administering chloromycetin for and to Brenda, or that he was negligent in failing to warn the Sharpes about chloromycetin—we think the evidence failed to show a causal connection between the negligence and Brenda's contraction of aplastic anemia. The testimony of plaintiff's witness Dr. McMillan included the following: "Based upon my experience and knowledge in the medical field, I have not been able to determine the causes of the condition described as aplastic anemia. And the general situation at the present time regarding this disease is that the fundamental causes of it have to be regarded as unknown. When I diagnose a condition of what I have described as aplastic anemia, then it would not be possible to specifically determine with certainty any particular cause for it. * * * I would have to say that in any case of aplastic anemia that I discovered that the cause could be from so many different sources that it would be impossible to specify a specific source. * * * Brenda Sharpe, might have developed or could have developed aplastic anemia from other sources. * * * I see no way to jump from the question of association to the question of a clear cause."

Plaintiff argues that the evidence from medical experts showing that Brenda's contraction of aplastic anemia could or might have been caused from taking chloromycetin was sufficient to take the case to the jury on the question of causation. Similar argument relating to medical testimony was rejected in Lee v. Stevens, 251 N.C. 429, 434, 111 S.E.2d 623, 627 (1959); we quote from the opinion: "`` * * * "We may say with certainty that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict, and should not be left to the jury." ' "

For the reasons stated, the judgment appealed from is

Affirmed.

PARKER and HEDRICK, JJ., concur.