Long v. Austin

• Decision Date: 30 November 1910
• Citation: 69 S.E. 500,153 N.C. 508
• Parties: LONG v. AUSTIN.
• Court: North Carolina Supreme Court

69 S.E. 500

153 N.C. 508

LONG v. AUSTIN.

Supreme Court of North Carolina

November 30, 1910

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Action by Daisy A. Long against James A. Austin. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action against a physician for malpractice in failing to discover that his patient's arm was dislocated, it was a question for the jury whether he had used the proper test to determine such dislocation, and whether he had used proper care in applying these tests, and whether he was possessed of sufficient skill to properly treat the injury.

Osborne Lucas & Cooke, J. E. Little, Tillett & Guthrie, and R. E Austin, for appellant.

E. T Cansler and Hugh W. Harris, for appellee.

WALKER J.

Plaintiff brought this action to recover damages of the defendant, who is a physician and surgeon, for malpractice in the treatment of an injury to her shoulder joint, which she alleges had become dislocated by a fall.

The particular allegation is that the defendant failed, upon examination, to discover the dislocation and to apply such remedies as were necessary to restore her injured shoulder to its normal condition, which could have been done by the exercise of ordinary care and skill. The evidence is somewhat voluminous and it is conflicting upon the main issue as to whether proper care and skill were used under the circumstances. It is not required that we should reproduce it here or even to state the substance of it, as we can deal with the question presented sufficiently without doing so. Issues were submitted to the jury, which, with the answers thereto, are as follows: (1) Was the plaintiff, Daisy A. Long, injured by the negligence or want of skill of the defendant, as alleged in the complaint? Yes. (2) What damage, if any, is the plaintiff entitled to recover? ($1,000) One thousand dollars.

The principal errors assigned in this court relate to the refusal of the trial court to give the following instructions requested by the defendant: "(1) Even if the jury should find that the plaintiff's arm was dislocated before the February visit, still if the defendant by using such tests as an ordinarily skillful and prudent physician would use, failed to discover such dislocation, they will answer the first issue, 'No.' (2) If the jury should find that the defendant used the following tests: Laid her right arm across her chest, placing her right hand on her left shoulder and pressing her right elbow against her chest, then placing her right hand on top or back of her head, and measuring both arms from the shoulder to the elbow and comparing the measurements, then the defendant would have used the proper tests, and if these tests failed to disclose the dislocation of the arm, the jury will answer the first issue, 'No.' (3) If the jury find from the evidence that the defendant made a mistake or error of judgment only in his treatment of the plaintiff, they will answer the first issue 'No."' The charge of the court was very full and accurate and stated to the jury with perfect fairness to both parties the law applicable to every view of the case.

The first instruction requested by the defendant was substantially given by the court, with such modification as to the degree of care and skill in making the examination by the usual and ordinary tests, as was proper in order to prevent a decision of the case upon fragmentary portions of the evidence and a too narrow view of the law by which the liability of the defendant should be determined. The mere use of approved tests, or those which have been found to be the best for the discovery of a dislocation or fracture or any other abnormal condition of the human body, is not all that is required of a surgeon or physician in the care and treatment of his patient. He must exercise that reasonable skill, care, and proficiency in making the tests and in ascertaining from them the presence of any injury and generally in the treatment of his patient which a member of his profession of ordinary care and prudence should use under the circumstances. He is not bound or confined to any special treatment, but to an ordinarily careful and skillful one. The rule is well stated in Van Skike v. Potter, 53 Neb 28, 73 N.W. 295: "The law does not require of a physician or surgeon absolute accuracy, either in his practice or in his judgment. The law does not hold physicians and surgeons to the standard of infallibility, nor does it require of them the utmost degree of care and skill of which the human mind is capable, but that, while in the practice of their vocation, they shall exercise that degree of knowledge and skill ordinarily possessed by members of their profession." We approved substantially the same principle in McCracken v. Smathers, 122 N.C. 800, 29 S.E. 355, where it is said: "The degree of care and skill...