Koury v. Follo, 697

• Decision Date: 12 January 1968
• Docket Number: No. 697,697
• Citation: 272 N.C. 366,158 S.E.2d 548
• Court: North Carolina Supreme Court
• Parties: Victor A. KOURY v. Paige B. FOLLO.

Page 548

158 S.E.2d 548

272 N.C. 366

Victor A. KOURY v. Paige B. FOLLO.

No. 697.

Supreme Court of North Carolina.

Jan. 12, 1968.

Douglas, Ravenel, Hardy & Crihfield, Greensboro, for plaintiff appellant.

Jordan, Wright, Henson & Nichols and William B. Rector, Jr., Greensboro, McLendon, Brim, Brooks, Pierce & Daniels by C. T. Leonard, Jr., Greensboro, for defendant appellee.

LAKE, Justice.

For the purposes of an appeal from a judgment of nonsuit, the plaintiff's evidence must be considered by us in the light most favorable to him and he must be given the benefit of every favorable inference which can reasonably be drawn therefrom. Strong, N.C. Index, Trial, § 21. Discrepancies, if any, in the plaintiff's evidence must be disregarded. He must be given the full benefit of all relevant evidence introduced, even though improperly admitted over objection seasonably entered. Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 232 N.C. 684, 61 S.E.2d 895; Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; 88 C.J.S. Trial § 244.

When so considered, the plaintiff's evidence is sufficient to support, though not to compel, these findings: The plaintiff took his nine months old baby to the defendant, a specialist in pediatrics, for treatment of a bad cold and bronchitis. The baby's illness could not be classified as an emergency. The defendant prescribed and caused to be administered to the baby five injections of a drug, the manufacturer of which caused to be stamped on each container in red letters, 'NOT FOR PEDIATRIC USE,' and caused to be packaged with each container of the drug an amplification and explanation of the warning against use for children. The defendant, knowing the drug contained streptomycin and that streptomycin may impair the nerve controlling the hearing apparatus, prescribed for this 20 pound infant a dosage, for each injection, equal to 75 per cent of the upper limits of the dosage stated on the manufacturer's label on the bottle to be the usual dosage for adult patients. This dosage was approximately double the upper safe limit of dosage for a 20 pound child, in the opinion of the plaintiff's expert witness, and approximately five times the dosage for such child computed according to 'Clark's Rule' contained in a standard textbook on pediatrics. Prior to her treatment with this drug, the baby had normal hearing. The use of the drug prescribed by the defendant, in the dosage prescribed by him, caused the child to become totally deaf. In consequence of the deafness of his child, the plaintiff has incurred and must hereafter incur expense, beyond that which is normal, for the care and education of his child.

We are, of curse, not to be understood as holding or implying that the evidence compels such findings or that the foregoing paragraph is a factually correct account of what occurred in and as a result of the treatment of the plaintiff's child by the defendant. The defendant has not yet had an opportunity to present evidence to show a different factual situation or to show that his treatment of the plaintiff's child was in accordance with the standard of care required of a physician prescribing drugs for administration to a nine months old baby suffering from acute bronchitis. What we do hold is that the plaintiff's evidence, considered in accordance with the above stated rule, is sufficient, if found by a jury to be true, to support findings as above stated and, therefore, the court erred in granting the defendant's motion for judgment of nonsuit. It is for the jury to determine the credibility and weight to be given the evidence and, after hearing the evidence of the defendant as well as that of the plaintiff, to determine the facts upon which the plaintiff's right to recover must stand or fall. Strong, N.C. Index, Trial, § 18.

We again reaffirm the rule stated by Higgins, J., speaking for this Court 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.'

The question for us upon this appeal is whether there is substantial evidence in the record before us to support, though not to require, a finding by a jury that the plaintiff's child was made deaf by the defendant's failure to fulfil the second of these requirements.

The defendant is not a general practitioner. He is a specialist in the field of pediatrics. Consequently, he was required to bring to the treatment of the plaintiff's baby a degree of knowledge as to the probable effect of a drug upon so young a patient not required of a general practitioner of medicine. Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565; 41 Am.Jur., Physicians and Surgeons, § 90.

Of course, not even a specialist in a given field of medical practice is, in the absence of an extraordinary contract or representation, a guarantor of the success of his treatment or its freedom from adverse consequences to the patient. Mere proof that a patient does not survive a treatment prescribed or administered by a physician or surgeon, whether a general practitioner or one practicing in a special field, or that the patient emerges from the treatment in a worse condition than before it was administered, is not sufficient to impose liability for such consequence upon the physician or surgeon, for the doctrine of res ipsa loquitur does not apply. Starnes v. Taylor, N.C., 158 S.E.2d 339, decided this day; Belk v. Schweizer, supra; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Hunt v. Bradshaw, supra; Nash v. Royster, 189 N.C. 408, 127 S.E. 356. In the record before us, however, the plaintiff's evidence is amply sufficient, if true, to support a finding that the defendant prescribed for his tiny patient a powerful drug without reading, or in disregard of, express warnings printed by the manufacturer upon the container and upon a leaflet packaged with each container of the drug. It is sufficient, if true, to show that he prescribed a dosage far in excess of that recommended for so small a child by a standard textbook in his own special field of medicine. It was his duty to exercise reasonable care, not only in his diagnosis of his patient's disease, but also in ascertaining the probable effects of the drug he prescribed and to observe appropriate precautions in its use. Reed v. Church, 175 Va. 284, 8 S.E.2d 285.

Obviously, rules stated in medical textbooks, like those stated in other textbooks, may be in error or may be disproved by subsequent discoveries in the field. At most, they are but the opinion of the writer,...