Kennedy v. Parrott
| Decision Date | 13 January 1956 |
| Docket Number | No. 315,315 |
| Citation | 90 S.E.2d 754,56 A.L.R.2d 686,243 N.C. 355 |
| Court | North Carolina Supreme Court |
| Parties | , 56 A.L.R.2d 686 Phoebe G. KENNEDY v. Dr. Fountain PARROTT. |
Owens & Langley, Kinston, for plaintiff-appellant.
Marion A. Parrott and John G. Dawson, Kinston, for defendant-appellee.
Plaintiff's action as alleged in her complaint is an action for damages for personal injury proximately resulting from the negligence of the defendant in performing an operation on her. The only allegation in the complaint which gives any indication it is an action for damages proximately resulting from an alleged technical assault or trespass upon the person of plaintiff is the allegation that the puncturing of the cysts on her ovary was unauthorized.
Dealing first with the cause of action alleged, it is to be noted that plaintiff made no effort in the court below to prove the defendant did not possess the requisite skill and ability, and she offered no evidence that he failed to exercise due and proper care in performing the operation other than her testimony as to what the defendant said and what Dr. Tyndall said in his presence. She tendered no expert testimony.
In the first place, where the conduct relied on rests upon judgment, opinion, or theory, such as in case of a surgeon performing an operation, the ordinary rules for determining negligence do not prevail. The reason is that when one who possesses the requisite skill and ability acts according to his best judgment and in a careful and prudent manner, he is not chargeable with negligence. Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762, and cases cited; Jackovach v. Yocom, 212 Iowa 914, 237 N.W. 444, 76 A.L.R. 551, and authorities cited. See also Annotations 26 A.L.R. 1036, 53 A.L.R. 1056, and 139 A.L.R. 1370.
Furthermore, proof of error of judgment and nothing more will not suffice. Jackovach v. Yocom, supra, and cases cited. And the defendant testified that the cysts he punctured were slightly less than an inch in diameter, and that he felt 'that these cysts were large enough to be potentially dangerous * * *'
A judge or court may take judicial notice of any fact in the field of any particular science which is either so notoriously true as not be the subject of reasonable dispute or is capable of demonstration by resort to readily accessible sources of indisputable accuracy. Judges may inform themselves as to such facts by reference to standard works on the subject. Hopkins v. Comer, 240 N.C. 143, 81 S.E.2d 368, and authorities cited; Stansbury, N.C.Evidence, sec. 11.
In applying this rule we need not enter into any extended discussion as to whether the puncture of the cysts on plaintiff's ovaries proximately caused her phlebitis. Suffice it to say that among physicians, surgeons, and others who make it their business to know the physiology of the human body, it is an accepted fact that (1) phlebitis of the leg is caused by the inflammation of a vein in the leg, and (2) when the inflammation becomes acute, it may cause the formation of blood clots which produce thrombophlebitis.
Phlebitis is at times a postoperative or pregnancy complication. When it develops after an operation, its cause is the combination of the operative procedures, that is, the anesthesia, the shock of the operation, and the confinement to bed which, in combination, cause a slowing of the blood flow and dehydration of the blood, which produces inflammation and the formation of blood clots which further block the flow of blood which causes a swelling of the leg, redness, and tenderness. Lippincott's Quick Reference Book for Medicine and Surgery, 14th ed., [243 N.C. 359] p. 570; Blumer, The Therapeutics of Internal Diseases, Vol. 3, p. 568; Cecil, Textbook of Medicine, p. 1287.
While on a motion to nonsuit we may not consider the testimony offered by defendant as it tends to contradict the evidence offered by the plaintiff, we may consider the evidence of defendant's expert witnesses for the purpose of ascertaining what are the known and generally accepted facts about phlebitis, as it tends to corroborate the textbook statements in respect thereto. Indeed, in our opinion, the trial judge had the right to call upon experts in the science of medicine to inform him on the subject. Hunt v. Bradshaw, supra; Hopkins v. Comer, supra
The defendant denied he made the statements attributed to him by the plaintiff. Even so, for the purposes of this appeal, we must assume that he did make them. But then, he offered five expert surgeons and physicians who testified that (1) if the defendant made the statements attributed to him, he was in error, and (2) the phlebitis was the result of the operative procedures--the anesthesia, the operation, and the confinement to bed--which caused a slowing of the plaintiff's blood and tended to cause a dehydration thereof which in turn produced the phlebitis and the clotting of the blood.
Thus it appears that if defendant made the statements upon which the plaintiff relies, they are so in conflict with known scientific facts that they are lacking in sufficient probative force to require their submission to a jury. Therefore, if the cause was tried in the court below on the allegation of negligence contained in the complaint, the judgment of nonsuit was well advised.
On the other hand, if her cause of action is for damages for personal injuries proximately resulting from an assault or trespass on her person, as she now asserts, and such operation was neither expressly nor impliedly authorized, she is entitled at least to nominal damages.
The contents of the record and her brief clearly indicate that, whatever the theory of the trial below may have been, she is now seeking to recover on this latter theory.
It is stated in the case on appeal that the puncturing of the cysts constituted an unauthorized operation on her by the defendant. A similar statement is contained in her brief. In addition thereto, the brief contains the following:
'The plaintiff earnestly contends that the trial Court erred in granting the defendant's motion for judgment of nonsuit at the conclusion of all the evidence for that the plaintiff had introduced sufficient evidence to make out a case of assault and battery or trespass to the person by the performance of an unauthorized operation upon her by the defendant * * *'
Furthermore, her whole argument and citation of authorities are directed to that contention.
While the law of contracts is applied as between a patient and his physician or surgeon, when a person consults a physician or surgeon, seeking treatment for a physical ailment, real or apparent, and the physician or surgeon agrees to accept him as a patient, it does not create a contract in the sense that term is ordinarily used. Usually there is no specification or particularization as to what the physician shall do. The patient selects, and commits himself to the care of, the doctor because he is confident the doctor possesses the requisite skill and ability to treat--and will treat--his physical ailment and restore him to normal good health. The physician, after diagnosing the ailment, prescribes the treatment or the medicine to be administered; but the patient is under no legal obligation to follow the physician's instructions. Thus it is apt and perhaps more exact to say it creates a status or relation rather than a contract. In any event, agreement imposes on the physician or surgeon the duty, in the treatment of the patient, to apply his skill and ability in a careful and prudent manner.
Prior to the advent of the modern hospital and before anesthesia had appeared on the horizon of the medical world, the courts formulated and applied a rule in respect to operations which may now be justly considered unreasonable and unrealistic. During the period when our common law was being formulated and applied, even a major operation was performed in the home of the patient, and the patient ordinarily was conscious, so that the physician could consult him in respect to conditions which required or made advisable an extension of the operation. And even if the shock of the operation rendered the patient unconscious, immediate members of his family were usually available. Hence ...
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