Dickens v. Everhart

• Decision Date: 10 October 1973
• Docket Number: No. 12,12
• Citation: Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (N.C. 1973)
• Court: North Carolina Supreme Court
• Parties: Boyd S. DICKENS, Administrator of the Estate of Shirley Marie Dickens v. Dr. C. D. EVERHART.

Page 440

199 S.E.2d 440

284 N.C. 95

Boyd S. DICKENS, Administrator of the Estate of Shirley Marie Dickens v. Dr. C. D. EVERHART.

No. 12.

Supreme Court of North Carolina.

Oct. 10, 1973.

White & Crumpler by James G. White and Michael J. Lewis, Winston-Salem, for plaintiff.

Folger & Folger by Fred Folger, Jr., Mount Airy, for defendant.

LAKE, Justice.

The basis of liability of a physician or surgeon for negligence in the care of his patient is thus stated in Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762:

'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 omitted.) 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.'

To the same effect see: Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339; Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493; Strong, N.C.Index 2d, Physicians, Surgeons, etc., § 11.

Thus, it is not enough to absolve the physician from liability that he possesses the required professional knowledge and skill. He must exercise reasonable diligence in the application of that knowledge and skill to the particular patient's case and give to the patient such attention as the case requires from time to time. Galloway v. Lawrence, supra. On the other hand, a qualified physician, who forms his judgment after a careful and proper examination or investigation of the particular patient's condition, is not an insurer of his diagnosis or of the success of his treatment and is not liable for an honest error of judgment. Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565; Kennedy v. Parrott, 243 N.C. 355, 90 S.E.2d 754. The requirement as to care and knowledge extends to the physician's selection and use of drugs in the treatment of the patient and to his knowledge of the dangers inherent in their use. Koury v. Follo, supra.

In Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393, this Court rejected the 'locality rule' to the effect that, in order to recover on the ground of failure to possess or use the requisite professional skill and ability, the injured patient must prove that the defendant failed to possess or use the skill and ability customary in the community in which the service was rendered. We there reaffirmed the rule that the physician or surgeon must possess the degree of learning, skill and ability which others Similarly situated ordinarily possess. Thus, the general practitioner is not liable by reason of his failure to possess the degree of knowledge and skill ordinarily possessed by a specialist in the field of his specialty. Similarly, the character of the community in which the defendant practices is a circumstance to be considered in determining the degree of skill and ability to be required of him. Prosser on Torts, 3rd ed., Negligence, p. 166. He is, however, held to the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice. Thus, in Wiggins v. Piver, we held that an expert witness, otherwise qualified, may state his opinion as to whether the treatment and care given by the defendant to the particular patient came up to the standard prevailing in similar communities, with which the witness is familiar, even though the witness be not actually acquainted with actual medical practices in the particular community in which the service was rendered at the time it was performed.

It follows that the learned trial judge erred in his conclusion and ruling that, because Dr. Toyama was not in 1964 familiar with the quality of medical practice in Mount Airy, Dr. Toyama could not state his opinion as to whether the defendant's treatment of Shirley Marie Dickens was in accord with accepted medical practice in 1964 in a community similar to Mount Airy.

The answers given by the witness, in the absence of the jury, to the hypothetical questions propounded were somewhat equivocal. We are unable to say, however, that had the jury heard them the verdict would not have been affected thereby. Consequently, the error of the trial court cannot be deemed harmless.

The Court of Appeals took the view that, since the plaintiff did not formally tender Dr. Toyama as an expert witness, the ruling of the trial...