Lippard v. Johnson

• Decision Date: 29 March 1939
• Docket Number: 306.
• Citation: 1 S.E.2d 889,215 N.C. 384
• Parties: LIPPARD v. JOHNSON.
• Court: North Carolina Supreme Court

1 S.E.2d 889

215 N.C. 384

LIPPARD v. JOHNSON.

No. 306.

Supreme Court of North Carolina

March 29, 1939

Civil action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.

The plaintiff, on advice of his physician, procured the defendant, the chief surgeon in charge of the Hickory Memorial Hospital, to perform an operation of circumcision. In performing the operation the defendant used a local anesthetic which he told the plaintiff was Novocain. There were a number of injections. At the point of the first injection a knot arose which developed into a blister. Thereafter the blister burst and a process of decay set in eating out a portion of the tissue. The section covering the blister became black and hard and could not be removed without a treatment with Vaseline and by cutting away. After the defendant had treated the plaintiff for sometime he went to a specialist in Charlotte. After several weeks treatment by the specialist the place healed, but has left the plaintiff in such condition that he now at times suffers therefrom. During the treatment the defendant, upon being asked if he thought Novocain would cause the condition replied: "No, I don't think so."

At the conclusion of plaintiff's evidence the Court, on motion of the defendant, entered judgment of nonsuit. Plaintiff excepted and appealed.

Theodore F. Cummings and W. A. Self, both of Hickory, for appellant.

Walter C. Feimster, of Newton, and Sapp & Sapp, of Greensboro for appellee.

BARNHILL Justice.

A careful examination of the complaint discloses that the plaintiff makes only two allegations of negligence: (1) That the defendant, in undertaking to induce a condition of local anesthesia, used a quantity of liquid containing a high percentage of some caustic and deleterious chemical or chemicals; and (2) That the defendant failed to diagnose the condition of the plaintiff's trouble which developed after the performance of the surgery for which he had been employed, and to use proper remedies for its alleviation and ultimate cure. There is no allegation that the defendant does not possess the requisite degree of learning, skill and ability necessary to the practice of his profession as a physician and surgeon; or that he failed to exert his best judgment in the treatment and care of plaintiff's case. Plaintiff's cause of action is bottomed upon the theory that in using, or attempting to use, Novocain as a local anesthetic the defendant either used Novocain containing foreign caustic and deleterious chemicals, or that he used some liquid that was not Novocain, but was caustic and deleterious, and upon the further theory that after the sore or infection set in the defendant failed to ascertain the cause of such condition and to use proper remedies for its alleviation and ultimate cure. Except as thus alleged there is no allegation that the defendant failed to exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to plaintiff's case.

The plaintiff relied on his testimony and the testimony of his wife. There was no expert testimony. It follows that of necessity the plaintiff relies upon the doctrine of res ipsa loquitur and contends that the burning and stinging sensation which was immediately...