Hawkins v. McCain

• Decision Date: 15 January 1954
• Docket Number: No. 676,676
• Citation: 79 S.E.2d 493,239 N.C. 160
• Parties: HAWKINS, v. McCAIN.
• Court: North Carolina Supreme Court

Page 493

79 S.E.2d 493

239 N.C. 160

HAWKINS, v. McCAIN.

No. 676

Supreme Court of North Carolina.

Jan. 15, 1954

J. V. Morgan, High Point, for appellant.

Smith, Sapp, Moore & Smith, Greensboro, for appellee.

DENNY, Justice.

Assignments of error Nos. 1, 2, 3, 4, and 6 are based on like numbered exceptions to the exclusion of evidence by nonexpert witnesses as to what advice they gave the plaintiff upon observing her condition, and the reason for offering such advice. These witnesses were permitted to testify as to the plaintiff's physical appearance before she took the Fowler's solution, as well as during the time she was taking it and immediately thereafter. However, the court sustained the defendant's objections to their proposals to testify that they advised her to stop taking the medicine 'because it seemed to be killing her.'

In cases where the physician's or surgeon's want of skill or lack of care is so gross or patent as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it, expert evidence is not required. Jackson v. Mountain Sanitarium, 234 N.C. 222, 67 S.E.2d 57; Wilson v. Martin Memorial Hospital, 232 N.C. 362, 61 S.E.2d 102; Gray v. Weinstein, 227 N.C. 463, 42 S.E.2d 616; Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Covington v. James, 214 N.C. 71, 197 S.E. 701. But in other factual situations the rule is different as pointed out by Justice Seawell in Groce v. Myers, supra, in which he said [224 N.C. 165, 29 S.E.2d 556]: 'In cases involving the application of scientific knowledge peculiar to that branch of learning (the science of medicine), there is no question that the rules of evidence requiring expert opinion in matters of scientific knowledge ought to be carefully enforced, both in the interest of justice and in the protection of a profession peculiarly liable to suit when, after exhausting every known resource and applying the highest degree of skill, the result is not what the patient or friends desire or hoped for.'

The court below properly excluded the above testimony. It constituted nothing more than mere conjecture or surmise on the part of these lay witnesses as to cause and effect in a field of knowledge in which only an expert could give a competent opinion, Jackson v. Mountain Sanitarium, supra, that is, one as to whether the health of the plaintiff had been injuriously affected by taking the prescribed medicine.

The plaintiff also assigns as error the exclusion of other proffered testimony. But a careful examination of the exceptions upon which these assignments of error are based disclose that they are without merit. Hence, they are overruled.

Assignment of error No. 10 is based on an exception to the ruling of the trial court in sustaining the defendant's motion for judgment as of nonsuit. Therefore, we must determine whether or not the plaintiff's evidence, when considered in the light most favorable to her, as it must be on such motion, Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251, is sufficient to warrant its submission to the jury. In our opinion it is not.

In arriving at this conclusion we are advertent to the rule that we are not permitted to consider the defendant's evidence, unless it is favorable to the plaintiff, except when it is not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff. Nance v. Hitch, 238 N.C. 1, 76 S.E.2d 461; Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, and cited cases.

The duty of a physician to his patient was set forth in the case of Nash v. Royster, 189 N.C. 408, 127 S.E. 356, 359, by the late Chief Justice Stacy in the following language: 'Ordinarily, when a physician or surgeon undertakes to treat a patient without any special arrangement or agreement, his engagement implies three things: (1) That he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession, and which others, similarly situated, ordinarily possess; (2) that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the patient's case; and (3) that he will exert his best judgment in the treatment and care of the case intrusted to him', citing numerous authorities. See Nance v. Hitch, supra; Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589; Waynick v. Reardon, 236 N.C. 116, 72 S.E.2d 4; Jackson v. Sanitarium, supra; Wilson v. Hospital, supra; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480.

The plaintiff alleges in her complaint that she has suffered great bodily injury, nervous disorder and mental anguish resulting from the defendant's want of skill, his improper treatment and his failure to use and apply such skill and care as should have been applied in the ordinary course of treatment for her condition.

In an action for malpractice, the burden is upon the plaintiff to prove by the greater weight of the evidence not only that the defendant was negligent, but that such negligence was the proximate cause or one of the proximate causes of her injury. Grier v. Phillips, supra; Smith v. Wharton, 199 N.C. 246, 154 S.E. 12.

An examination of the plaintiff's evidence discloses that she employed the defendant on or about 1 September, 1950, to treat her for a skin disease; that she has been a victim of Hodgkin's disease since 1945; that after she took the Fowler's solution for seven days and one dose on the eighth day, she discontinued taking it. That after she began to take Fowler's solution that contained arsenic, her legs began to swell and her face was puffed around her eyes; that on the ninth day after she started taking Fowler's solution the whole side of...