Covington v. James
| Decision Date | 22 June 1938 |
| Citation | 197 S.E. 701,214 N.C. 71 |
| Parties | COVINGTON v. JAMES et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Richmond County; F. D. Phillips, Judge.
Action by A. B. Covington against Dr. W. D. James and another for injuries sustained while a patient in hospital. From a judgment rendered as of nonsuit, plaintiff appeals.
Reversed.
Where patient had had small bone of leg broken and was taken to hospital and physician in resetting bone broke large bone and admitted later he did not know why, and did not see patient again for seven days during which time leg swelled, abscessed and burst, and patient when he left hospital could not walk without swinging injured foot out and around other foot whether physician was negligent in treating patient was for jury, notwithstanding there was no expert testimony to prove that the physician had not exercised due skill and care.
In malpractice action against physician, ruling that no evidence except that presented in guise of res ipsa loquitur is competent for jury in absence of expert medical testimony would not be justified by condition of medical and surgical science and practice, not consistent with common knowledge experience, and ordinary intelligence.
This was a civil action brought by the plaintiff to recover damages for an alleged injury caused by the negligence of the defendants in not using due skill and care in his treatment while a patient in the Hamlet Hospital.
In his complaint plaintiff alleged, in substance, that he had a small bone in his left leg broken between the knee and ankle and entered the hospital and was accepted for treatment; that he employed the defendant Dr. W. D. James "as surgeon and physician, to dress, heal, and cure said injured leg", and that Dr. James undertook the treatment; that his leg was placed in a cast after examination and diagnosis; but that the defendant James negligently, carelessly, and unskillfully performed the examination and diagnosis, and did not use proper skill in the treatment and care of plaintiff's injury; carelessly and negligently failing to treat the dislocation of the bone and to properly set it, so that the bone refused to heal and became permanently dislocated. Plaintiff further complained that at the time he placed himself under Dr. James for treatment only the small bone in his leg was broken, and that the defendant negligently broke the large bone and attempted to set it, but negligently failed to properly do so, so that the leg is now crooked and deformed, the bones of the leg never having been placed together. He claims that he remained in the hospital seventy days for treatment, and, after five weeks at home, went back to the hospital on crutches; that his leg is warped and crooked and he is unable to walk on that foot, because while he is standing up the foot on the left leg,-the injured member,-points inward to such an extent that it catches behind his right leg, and that he has virtually lost the use of that leg and has become a cripple.
He further complains that he was cut and seriously injured by faulty equipment used while he was confined to bed.
There is a further allegation that the negligent and unskillful manner in which his injury was treated caused the glands in his leg to swell up, abscess, and burst. There follow the usual allegations of physical suffering, mental anguish, and permanent injury.
The defendants, answering, deny these allegations, and in a further defense set up that the plaintiff's condition, if he suffers from any injury at all, came about through his own carelessness and negligence in refusing to follow instructions given to him at the time he left the hospital.
Upon the trial the case, in the main, was presented in the plaintiff's own testimony and the exhibition of the injured member. There was corroboration in some material parts, to which it is needless here to refer.
The evidence was substantially along the line of the pleading. Plaintiff testified that he was fifty-four years of age and a cotton mill worker; that he was struck from the rear by the fender of an automobile on the back of the left leg, just below the knee; that he was unconscious when he was taken to the hospital, but woke up next morning, finding his leg hurt and in a "short cast"; that he had a conversation with Dr. James, who told him that he had a small fracture of the leg.
According to his narrative, after he was carried from the operating room he stayed in the room to which he was carried from December 5th to December 29th, when X-ray pictures were again made of the injured member. When carried back to his room, he stayed there that night without a cast on the leg, and was again taken to the operating room, and there Dr. James told him that the fracture was not set and knitting like it ought to; that he would have to put plaintiff to sleep and re-set it.
Plaintiff's leg swelled up so that he could not move it, abscessed, and burst. He called his condition to the attention of Dr. James, who promised to come back in the room in a few minutes, but did not return for seven days.
Plaintiff gave further details as to his treatment in the hospital along the same line.
He testified that he saw Dr. James on March 6th and that the Doctor told him his leg was not broken when he went to the hospital; that he, the Doctor, had broken it and did not know why he did so, but promised to take him to a specialist to have some treatment.
Plaintiff exhibited his leg to the jury and gave testimony as to its condition, stating that the left foot would not pass the right foot in walking, because of the extent to which it was turned inward.
There was other evidence of a similar character, to which we need not advert. There was no evidence for defendants. Upon motion of the defendants' counsel, the court below rendered a judgment as of nonsuit and the plaintiff appealed.
J. C. Pittman, of Sanford, and H. F. Seawell, Jr., of Carthage, for appellant.
Sapp & Sapp, of Greensboro, and Fred W. Bynum, of Rockingham, for appellees.
The court below allowed defendant's motion to nonsuit upon the theory that in the absence of expert testimony the evidence, serious as it is, is not sufficient to go to the jury on the issue of defendant's failure to exercise due skill and care in his treatment of plaintiff.
We are urged to adopt the view that recovery cannot be had in any suit against a physician or surgeon for malpractice in the absence of expert medical testimony, except where the facts give rise to the application of the doctrine res ipsa loquitur. Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285; Ferguson v. Glenn, 201 N.C. 128, 159 S.E. 5; Nash v. Royster, 189 N.C. 408, 127 S.E. 356, and Connor v. Hayworth, 206 N.C. 721, 175 S.E. 140, are amongst the authorities cited in defendant's brief in support of this position.
It is further contended that the doctrine res ipsa loquitur applies only in instances where foreign substances, such as sponges, towels, needles, glass, etc., are introduced into the patient's body, and left there.
In the case at bar, are the facts of the testimony competent to go to the jury without explanation by medical expert, either in their simple character as evidence, or as raising the doctrine res ipsa loquitur?
In the present case there are three outstanding phases of the evidence which may be discussed in this connection:
(a) The plaintiff testified that he was admitted to the hospital with a simple fracture of the small bone of the lower left leg; that he was unconscious when he was admitted to the hospital; that while he was unconscious a cast was put upon this leg, and later he was carried to the operating room, anaesthetized, and the bone reset; that the defendant later admitted that he had at this time broken the larger bone of the leg without knowing why.
(b) He testified that after the cast was put upon his leg, the defendant failed to give him further attention and did not see him for seven days. During this time his leg swelled up and burst and abscesses formed upon it and in the groin and burst.
(c) He further testified that when discharged from the hospital plaintiff's foot was turned inwardly...
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