Jackson v. Mountain Sanitarium & Asheville Agriculture School
| Decision Date | 10 October 1951 |
| Docket Number | No. 96,96 |
| Citation | 67 S.E.2d 57,234 N.C. 222 |
| Court | North Carolina Supreme Court |
| Parties | JACKSON et al. v. MOUNTAIN SANITARIUM & ASHEVILLE AGRICULTURE SCHOOL et al. |
W. W. Candler, Don C. Young, and Cecil C. Jackson, Asheville, for plaintiff-appellant.
Smathers & Meekins, Asheville, for defendants Mountain Sanitarium and Asheville Agriculture School and Edgar A. Hanson.
Harkins, Van Winkle, Walton & Buck, Asheville, for defendant Dr. T. H. Joyner.
The record fails to disclose any evidence of sufficient probative force to require the submission of issues as against the corporate defendant. Hence the judgment of nonsuit as to it must be affirmed. Wilson v. Martin Memorial Hospital, 232 N.C. 362, 61 S.E.2d 102, and cases cited. See Anno. 60 A.L.R. 147.
The judgment of nonsuit as to the defendant Hanson is sustained on authority of Byrd v. Marion General Hospital, 202 N.C. 337, 162 S.E. 738. What is there said is controlling here.
However, different questions are presented on plaintiff's appeal from the judgment on the verdict as to the defendant Joyner
Dr. Peasley performed an autopsy on the body of plaintiff's intestate. He made a detailed written report of his findings. He identified this report. Thereafter, plaintiff offered it in evidence. Objection thereto was sustained. In this there was error. This error is not cured, as contended by the defendant, by the fact the plaintiff offered the report generally and not specifically for the purpose of corroboration. If the defendants desired the evidence to be so restricted, it was their duty to request the court to so instruct the jury.
In the course of its charge, the court below instructed the jury as follows: 'The Court instructs you, gentlemen of the jury, that if it does not appear that if the defendant or another physician or a competent nurse had been with the deceased, she would not have died or that her death was the result of her condition prior to the operation which could have been discovered by the defendant by any examination which it was his duty to make, then there would be lack of proximate cause.'
This must be held for error.
In former decisions of this Court, we have fully discussed the requisite standard of learning and skill and the duty of a physician or surgeon who undertakes to render professional services to a patient. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Wilson v. Martin Memorial Hospital, supra. Briefly stated, it comes to this: (1) He must possess the degree of professional learning, skill, and ability which others similarly situated ordinarily possess; (2) he must exert his best judgment in the treatment and care of his patient; and (3) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case.
There is no evidence in the record tending to show that Dr. Joyner did not possess the requisite knowledge and skill. Plaintiff does not seriously contend to the contrary. His case is made to rest upon the allegation that said defendant, in treating plaintiff's intestate, failed to exercise reasonable care and diligence in the application of such knowledge and skill, and the evidence in support thereof. To make out his case he must not only prove that the defendant was negligent in this respect, but also that such negligence was the proximate cause, or one of the proximate causes, of the death of his intestate.
The court below, in the quoted excerpt from the charge, instructed the jury that there is a failure of proof of proximate cause unless it is made to appear (1) that if the defendant or another physician or a competent nurse had been with the deceased she would not have died, or (2) that her death was the result of her condition prior to the operation which could have been discovered by the defendant by an examination which it was his duty to make. Thus the court laid down the rule that in cases of this kind proximate cause can be established only through the medium of expert testimony and, in effect, eliminated 'the greater weight of the evidence' rule as to the burden of proof which applies in civil cases. It must be made to appear by expert testimony that the defendant or another physician or a competent nurse, if present, would have saved the life of this child, or else there was no actionable negligence. There could be no commerce between the facts in evidence and the rationalization of the jury unless such facts were established by expert testimony. The jury must have so understood.
The courts generally recognize that the science of medicine is an experimental science and they have been extremely careful to protect physicians and surgeons against verdicts resting on nonexpert testimony in those cases where nonexpert testimony could consitute nothing more than mere conjecture or surmise and in which only an expert could give a competent opinion or draw a reliable inference. Yet this Court has not and could not go so far as to say that in no event may a physician or surgeon be held liable for the results of his negligence unless the causal connection between the negligence and the injury or death be established by the testimony of a brother member of defendant's profession. Indeed, we doubt that a physician or surgeon could be found who would be willing to testify unequivocally, in any case, that if he had been present he could have prevented the injury or death. In any event, such a rule would erect around the medical profession a protective wall which would set it apart, freed of the legal risks and responsibilities imposed on all others.
It is true it has been said that no verdict affirming malpractice can be rendered in any case without the support of medical opinion. If this doctrine is to be interpreted to mean that in no case can the failure of a physician or surgeon to exercise ordinary care in the...
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