Belk v. Schweizer, 459

• Citation: 149 S.E.2d 565,268 N.C. 50
• Decision Date: 26 August 1966
• Docket Number: No. 459,459
• Parties: , 21 A.L.R.3d 944 Joan E. BELK v. Dr. Donald C. SCHWEIZER.
• Court: United States State Supreme Court of North Carolina

Page 565

149 S.E.2d 565

268 N.C. 50, 21 A.L.R.3d 944

Joan E. BELK v. Dr. Donald C. SCHWEIZER.

No. 459.

Supreme Court of North Carolina.

Aug. 26, 1966.

White, Crumpler, Powell, Pfefferkorn & Green by Harrell Powell, Jr., William G. Pfefferkorn, and Edward R. Green, Winston-Salem, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and W. F. Maready, Winston-Salem, for defendant appellee.

PARKER, Chief Justice.

This is a summary of the allegations of fact in the complaint: Defendant, Dr. Donald C. Schweizer, is a practicing physician in the city of Greensboro, and holds himself out to be a specialist in the field of obstetrics and gynecology. Plaintiff, Joan E. Belk, a young married woman, visited defendant in his office on 19 May 1959 for medical services. At that time defendant, performing routine services for plaintiff, discovered she had a small ulcer at the mouth of her womb, and he treated her for this condition. On 9 November 1959 she went to defendant's office and explained to him that her last menstrual date was 4 August 1959. On 18 November 1959 she started a vaginal bleeding and called the defendant. Defendant was out of town on this occasion, and she was treated by his assistant. On 23 November 1959 plaintiff saw defendant in his office, and explained to him that she had been bleeding for approximately twelve days, had suffered great pain, was swollen, and had a temperature. On 27 November 1959 she was examined by defendant, at which time she was still bleeding. On 1 December 1959 she returned to defendant's office, and explained to him that she had had chills and fever the night before, was bleeding heavily and passing clots, was having severe cramps and pain, and was swollen. On 1 December 1959 defendant hospitalized her for an operation known as a D and C. (It was stipulated that a D and C is a dilatation and curettage.) She inquired of defendant as to the possibility of her having a tubular pregnancy. Defendant ran certain laboratory tests and told her that it could not be a tubular pregnancy. She remained in the hospital from 1 December 1959 to 3 December 1959. On 5 December 1959 she contacted defendant by telephone, stating to him that she had a temperature, was experiencing great pain in her back and side, was bleeding extensively, was swollen, and her complexion was discolored. The defendant did not come to see her nor did he request her to come to his office nor go to the hospital. From the symptoms given to him on the telephone, without seeing her, he diagnosed her illness as a kidney infection and proceeded to prescribe medicine for a kidney infection. Plaintiff's husband on several occasions asked defendant what should be done for plaintiff, and defendant said he would hospitalize her if her husband thought it necessary. During this period defendant prescribed a large amount of the narcotic Demerol to relieve her pain. On 7 December 1959 she contacted another physician in Greensboro, Dr. Francis Berry, who came to see her, advised her she was in a very serious condition, and told her to return the next day to defendant. Plaintiff returned the following day to see the defendant, who attempted manually to examine her for a pelvic mass, but due to the pain this caused her, he was unable to make a successful examination. Defendant told her on this occasion that he did not know what was wrong with her, and to feel free to call another physician. Her condition became progressively worse, and she had a high temperature and was still bleeding. She contacted Dr. Francis Berry. She was placed in a hospital and was operated on by Dr. Berry for a ruptured tubular pregnancy. She remained in the hospital for twelve days.

Since that time she has been treated continuously by physicians and surgeons as a result of the negligence of defendant in failing to diagnose her illness as being caused by a tubular pregnancy. She avers and believes that if the tubular pregnancy had been diagnosed in apt time that these operations and expenses would not have been necessary.

The complaint alleges in substance that defendant was negligent in the following respects: (1) At all times complained of defendant did not possess the degree of professional learning, skill and ability which other physicians similarly situated ordinarily possessed, and he failed to exercise reasonable care and diligence in his application of his knowledge and skill to plaintiff's case; (2) he failed and neglected to use proper methods in his treatment of plaintiff from 9 November 1959 to 9 December 1959; (3) in examining plaintiff he did not use the care and methods used by physicians engaged in medical practice in Greensboro, and he negligently failed to correctly diagnose her condition; (4) he diagnosed plaintiff's illness as a kidney infection without seeing her, from a telephone examination; (5) he failed and refused to visit with plaintiff or to hospitalize her at a time when he knew or in the exercise of reasonable diligence should have known that her condition was serious and required immediate attention; (6) he was negligent in failing to notify plaintiff that the treatment which he was giving her had failed and to initiate other treatments and to attempt other diagnosis; (7) in the exercise of reasonable diligence he should have discovered that plaintiff had a tubular pregnancy and should have treated her for the same; (8) he was negligent in that he failed to hospitalize plaintiff and perform an exploratory operation in order to properly diagnose her condition, particularly in view of the fact that he was unable to examine her manually due to the fact that she was in a swollen condition and suffering extreme pain; (9) defendant knew or should have known that tubular pregnancy was very serious, would undoubtedly rupture and cause severe consequences to plaintiff, but nevertheless he treated plaintiff conservatively while not ruling out the possibility that plaintiff had a tubular pregnancy; and (10) other allegations of negligence of a similar nature.

Defendant in his answer admits that he saw plaintiff on the occasions alleged in her complaint, but he denies that he was guilty of negligence in any respect.

The parties offered evidence in support of the allegations of fact in their pleadings.

The deposition of Dr. Lonis L. Schurter, consisting of 36 pages in the record, was read to the jury by plaintiff. Plaintiff has no other medical evidence, except that it read to the jury an adverse examination of defendant. Defendant offered in his behalf the testimony of six doctors, which appears in the record on pages 134 through 345.

Plaintiff assigns as error the part of the charge of the court to the jury appearing in parentheses:

'In response to a hypothetical question regarding the failure of Dr. Schweizer to do a culdoscopy or a cul-de-sac puncture on Mrs. Belk at the time of the D & C and while she was under anesthetic, Dr. Schurter stated that he had an opinion satisfactory to himself as to whether the treatment and examination was in accordance with approved medical practices in the community of Greensboro. (His answer is difficult of comprehension generally, because he does not say that he thinks at this stage a culdoscopic examination--no, his answer is difficult of comprehension generally, but he does say that he thinks at this stage a culdoscopic examination would be diagnostic, and that is the virtue, is the diagnostic examination.)'

Plaintiff further assigns as error the following part of the judge's charge:

'The defendant further contends that the evidence of Dr. Schurter, introduced by the plaintiff, is the evidence of a doctor who has never practiced in the specialty of obstetrics and gynecology exclusively; that Dr. Schurter's opinions are vague and...