Brewer v. Ring

• Decision Date: 21 May 1919
• Docket Number: 505.
• Citation: Brewer v. Ring, 177 N.C. 476, 99 S.E. 358 (N.C. 1919)
• Parties: BREWER et ux. v. RING et al.
• Court: North Carolina Supreme Court

99 S.E. 358

177 N.C. 476

BREWER et ux. v. RING et al.

No. 505.

Supreme Court of North Carolina

May 21, 1919

Appeal from Superior Court, Wilkes County; Cline, Judge.

Action by F. G. Brewer and wife against J. W. Ring and another. Judgment for defendants, and plaintiffs appeal. No error.

Where in action for malpractice, the issues submitted were sufficient to develop the entire case equally for both parties, the rejection of other issues tendered was not error.

Plaintiffs sought to recover damages for malpractice of defendants physicians and surgeons, in wrongly and negligently diagnosing the feme plaintiff's pregnancy as a case of fibroid tumor of the uterus, or an ovarian tumor. There was much evidence taken at the trial upon the questions of negligence and damages as to each of the two defendants, and the jury returned the following verdict:

"Were the plaintiffs injured by the negligence, or want of skill of the defendants, or either of them? Answer: No."

There were two other issues as to the damages each of the plaintiffs was entitled to recover, but, as the verdict upon the first issue was adverse to them, they were, of course, not answered, as it was not necessary that they should be. It is alleged in the complaint that the doctors, after their examination had been made each acting separately in making it, and consulting thereafter together in regard to it, reported that the feme plaintiff was suffering from an ovarian tumor of rapid and malignant growth, and that an immediate operation was necessary, and that when the incision in the abdomen was made, so that the ocular proof of her condition was afforded, and her real trouble was disclosed, it was found that there was no tumor, but that instead she was between four and five months advanced in pregnancy; that for the purpose of the operation she was taken, under the advice of Dr. Ring, to the Twin City Hospital at Winston-Salem, where Dr. A. de T. Valk resided, and where, in the hospital, he first made his examination of her, and pronounced her ailment that of an ovarian tumor of rapid growth, calling for an immediate operation.

It is further alleged that when they were informed by the physicians and surgeons ás to the cause of the feme plaintiff's then physical condition both plaintiffs urged that she go to the hospital at Baltimore for further diagnosis and treatment, when Dr. Ring protested against such a course, and insisted that, in view of the seriousness of her trouble, she be carried at once to Winston-Salem, as delay would be dangerous, if not fatal; he further asserting that Dr. Valk was the most skillful surgeon in the state, and all would be well; that after both examinations had been completed the defendants declared that their knowledge of her case was sufficient, their diagnosis was positively correct, that they knew what they were doing, that no further diagnosis was necessary or required, that they knew for a certainty that an ovarian tumor existed, and that it required an immediate operation to prevent death; that upon this representation, and trusting to the skill and ability of her physicians and surgeons, the plaintiffs yielded to their advice, the feme plaintiff submitting to the operation with her husband's consent, and the same was performed, with the result above stated; that morphine was injected into her arm, and anesthetics administered, until she was sufficiently under their influence, when the incision, eight or ten inches in length, was made in the abdomen, which exposed the internal organs, and showed the diagnosis to be false, as the feme plaintiff was only normally pregnant, and there was no indication of tumor. The surgeon's wound was closed, the patient recovered of it, and in due course was delivered of her child without any untoward incident in the accouchement. She afterwards, within the usual period, was restored to her normal health.

It is further alleged:

"That the defendants negligently performed the operation without possessing or exercising the knowledge and skill possessed by the ordinary physician in surgery, and, without possessing and exercising this knowledge, did negligently and carelessly undertake to diagnose and determine the condition of the feme plaintiff; and did, without possessing and exercising the skill and knowledge possessed and exercised by the ordinary physician and surgeon, carelessly, negligently, and erroneously diagnose and determine that the said feme plaintiff was suffering from an ovarian tumor of rapid growth, when in fact she was not so suffering, and that the defendants knew, or should have known, it by the exercise of the ordinary knowledge and skill possessed by the average physician and surgeon;"

--thereby requiring long confinement of feme plaintiff to her bed, and causing her great bodily pain, and also mental anguish in many ways, which are particularly set forth, and the loss of services and other benefits, to her damage $10,000.

The defendants distinctly and circumstantially denied, except in one respect, each and every allegation of negligence or malpractice, and the existence of any fact tending to show it, or to prove that they acted otherwise than the most careful and skillful physician or surgeon would have done under like circumstances, and also denied all right to damages, and this denial made up the issues submitted to the jury.

The complaint was amended so as to allege that the incision was too long, and that this error in operation caused hernia, which, it appears, developed some time after childbirth. This also was denied.

We will now state, in substance, the contentions of the parties, with such allusions to the testimony as may be thought proper to give a clear apprehension of the case from the two different standpoints:

The plaintiffs contended that, upon the evidence, it appeared that the feme plaintiff was not suffering from tumor of any kind, but was in a normal condition, with the exception of unusual menstrual flow during her state of pregnancy, and the fact that she experienced no symptoms, such as nausea, and so forth, indicating that she was pregnant; that the surgeons had made an exceedingly superficial diagnosis, and one not calculated to disclose, with any reliable degree of certainty, her real condition, and that in not making a closer and more minute examination of her body, as a careful physician of ordinary knowledge and capacity would and should have done, they were misled by their own fault in this respect, and thereby caused the feme plaintiff great and unnecessary suffering of mind and body, and her husband great mental anguish and the loss of her society and services, and subjected him to great expense laid out in her cure and restoration to health. They assert that defendants should have been more skillful and careful in their diagnosis and treatment of their patient, especially in view of the urgent appeal made to them by plaintiffs that she be taken to Baltimore for further observations and study of her case, which they predict would have resulted in a different diagnosis and the ascertainment of her real condition, and would have saved her from the serious operation she underwent, and its attendant suffering and anxiety, and left her in a normal state of health and strength to withstand and overcome the perils of pregnancy and childbirth. They also complain of the hernia which followed the useless operation to which she was subjected. They allege, with testimony to support them in their contention, that there were other wellknown tests for determining a case of pregnancy, which were not resorted to by the defendants, and that in all they did there was a total lack of proper care, caution, knowledge, and skill, which resulted in her injury; and, further and lastly, that they did not give their consent to an exploratory operation, but, having been assured of the presence of a malignant tumor requiring immediate surgical interference to save life, they consented, and she submitted, only to that kind of operation, relying upon the superior knowledge and skill of the defendants to acquaint them with the facts and to advise as to the proper course to be taken.

The defendants, on the contrary, contend, and refer to evidence to sustain them, that the sole theory of the complaint was a negligent mistake in diagnosis, in that the defendants thinking the feme plaintiff had an ovarian cyst or tumor, operated on her for that condition, when in fact she was pregnant, which was disclosed at the time of the operation. The contention of the defendants was that it was very difficult to determine the true condition of the feme plaintiff, and that, in their opinion, the indications were that it was an ovarian tumor or cyst, but that the true condition could not be determined other than by an exploratory operation, and that this was the nature and character of the operation. The feme plaintiff is a married woman 47 years old, and prior to the date of her visit to Dr. Ring at Elkin on January 8, 1917, had given birth to three children, at intervals of three and two years, and that at these births conditions were normal, the last of the children having been born twelve years prior to her visit to Dr. Ring; that from the date of the birth of the last child until the latter part of August, 1916, the feme plaintiff was regular in her periods, and that on or about September 21, 1916, was noticed the first irregularity, the period at that time being partially suppressed, continuing with slight but constant flow, broken by periods of one or two days with an absence of flow, and with the exception of one week, these conditions continued until January 8, 1917; that at the time of her visit to Dr. Ring the feme plaintiff herself had not observed any...