Smith v. Duke University
| Decision Date | 21 May 1941 |
| Docket Number | 456. |
| Citation | 14 S.E.2d 643,219 N.C. 628 |
| Parties | SMITH v. DUKE UNIVERSITY. |
| Court | North Carolina Supreme Court |
This was an action to recover damages for an injury alleged to have been caused by the negligent treatment of plaintiff's wife in the hospital which is operated by the defendant Duke University. An action by Naomi Smith, wife of plaintiff, against the defendant for the same cause, was by consent consolidated for trial with the above entitled case.
At the conclusion of the evidence defendant's motion for judgment of nonsuit was allowed, and from judgment accordingly plaintiff appealed.
Yarborough & Yarborough and E. F. Griffin, all of Louisburg, and Royall, Gosney & Smith, of Raleigh, for appellant.
Jones & Brassfield, of Raleigh, W. L. Lumpkin, of Louisburg, R L. Savage, Jr., of Raleigh, and T. D. Bryson and E. C Bryson, both of Durham, for appellee.
The determination of the correctness of the nonsuit below necessitates consideration of the primary question whether plaintiff offered sufficient evidence to show that the physician and surgeon, whose treatment of the plaintiff's wife is complained of, was at the time acting within the scope of his agency or employment by the defendant so as to impose liability upon it under the principle of respondent superior, and, if so, whether there was evidence of actionable negligence on the part of the physician sufficient to require submission of the case to the jury.
While the consideration of a motion for judgment of nonsuit requires that the evidence be viewed in the light most favorable for the plaintiff, it is the established rule that there must be legal evidence of the fact in issue, and not merely such as raises a conjecture or suggests a possibility. The plaintiff is required to offer evidence which reasonably tends to prove the facts essential to the maintenance of his case. Byrd v. Express Co., 139 N.C. 273, 51 S.E 851; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661.
Examining the record of the testimony in accord with these cardinal principles, we find the evidence tends to show that in the fall of 1935, plaintiff's wife, following childbirth, was suffering from profuse uterine hemorrhage, and that on October 31, 1935, by the advice of her local physician, plaintiff took her from their home in Franklin County to Duke Hospital for treatment and operation. On arrival he explained her trouble to the person in charge of the admitting office of the hospital. Neither plaintiff nor his wife knew any physician or surgeon and expressed no preference for any particular physician. Owing to the nature of her malady she was assigned to Dr. Bayard Carter, who is a specialist in obstetrics and gynecology, and she was taken to his office which is located in Duke Hospital. It appeared that Dr. Carter, a duly licensed physician, was Professor of Obstetrics and Gynecology in the School of Medicine of Duke University, and was a member of the committee having to do with the relation of the Medical School to clinical medicine. It also appeared that under the terms of his employment by Duke University he was permitted to engage, and did engage, in the private practice of medicine and was permitted to maintain an office in Duke Hospital. Dr. Carter, after his examination of Mrs. Smith, decided that, owing to her physical condition and the fact that she was a large fleshy woman with high blood pressure, a surgical operation was not advisable, and, finding indications suggestive of cancer, advised radium treatment as proper for controlling the hemorrhage and as preventive of cancer. Plaintiff was told by "someone down there" (not Dr. Carter) that the charge for the room would be $3.50 per day, and that the cost of the operation would be $35. The written consent of Mrs. Smith for the treatment prescribed and for the operation of curettement having been given, the operation was performed and the radium treatment administered November 2, and on November 7, she went home. November 25, she returned to the hospital for post-operation check, and again December 1. At that time there was no bleeding but a profuse discharge. She returned to the hospital January 5, 1936, when diabetic conditions appeared. She was there again February 11. Dr. Carter, also, at plaintiff's request, went to Louisburg to see her in May, 1936, at which time he told plaintiff there would be no charge for the visit. At all times Dr. Carter was the treating physician. Following the discovery of the diabetic condition of his wife, plaintiff followed the directions given him by Dr. Carter, and kept records and reported her reaction to treatment. All correspondence relative to her case was between plaintiff or members of his family and Dr. Carter. Mrs. Smith was again in the hospital in the fall of 1937 for further treatment by Dr. Carter for vesico vaginal fistula which resulted from the first operation.
Plaintiff's evidence tended to show that following the initial treatment Mrs. Smith suffered great pain, and that later both rectal and vaginal fistulas appeared, accompanied by impairment of the functions of the bladder and offensive discharges, and that her mind became weakened and her physical health seriously injured. It also appeared that since her treatment at defendant's hospital she has been at times under care of different local physicians and was treated at hospitals in Rocky Mount and Raleigh.
Plaintiff offered the testimony of three physicians, who had examined Mrs. Smith after her treatment at Duke Hospital, which tended to show that her condition indicated "marked radium reaction" or radium burns, and that the injuries complained of were attributable to radium reaction. There was further evidence by the medical witnesses, without objection, that if radium had been properly used the kind and extent of radium reaction observed in her case would not have resulted; that the ordinary dose of radium for carcinoma of the uterus was 5,000 milligram hours, that is the number of milligrams of radium multiplied by the number of hours of exposure to the affected tissues. The method of confining the emanations from radium to the Beta and Gamma rays was explained. It was testified that the amount of radium to be used would depend to some extent on the patient and the condition to be treated. "A mistake in the quantity used and the length of time it is left in may produce disastrous results if precautions are not used."
There was evidence also that in human beings there are different degrees of susceptibility to the effects of radium, that is its effects are more pronounced in some than others, and that there are individuals who are super-sensitive or allergic to its effects, and that there was no way of determining this beforehand. And it was also brought out that a person suffering with diabetes is more susceptible to unfavorable reaction from radium treatment, and that, as it takes some six months for radium treatment to become effective, if a few months after operation a person developed diabetes, the reaction would be increased and might result in consequences deleterious to the patient which could not have been anticipated. There was other evidence, however, tending to negative the inference that Mrs. Smith had had diabetes, or that true diabetes developed subsequently.
Plaintiff offered the deposition of the superintendent of Duke Hospital for the purpose of showing its method of operation, and the relationship between the hospital and physicians who treat patients therein. From this testimony it appears that the amounts collected by the hospital from patients do not include the fees for the services of physicians. The Hospital gets no part of that. The charges for pay patients are made, collected and pocketed by the individual practitioners. Duke University in the operation of Duke Hospital employs physicians who are paid for teaching, for free ward work, and for free dispensary work, but their private fees are not touched. Their charges (not made by the Hospital) represent a wide range of fluctuations, in the main scaled upon the ability of the patient to pay. Sometimes physicians' charges are collected as a courtesy and accommodation by the office, but no responsibility is assumed. Occasionally the patient's weekly statement for room and board will also show the amount due for medical or surgical services. The doctors employ on their own account a business organization which does the work of collecting from the patient the bill for their services, but that is separate from the hospital organization. With respect to pediatrical or medical patients, this doctors' organization is headed by Mr. Cobb. If they happen to be surgical, obstetrical or gynecological patients, the matter is handled by Mr. Roper, or one of the members of his organization. They are separate organizations and have no connection with the hospital. When a patient is carried to the hospital he invariably gets the physician he asks for. If he has no knowledge sufficient to make a choice, he is assigned to one whose specialty happens to coincide more nearly with the patient's condition. The assigning is done by a young woman who is paid from three sources; on the one hand, by the medical and pediatrical organization; on the other, by the surgical, obstetrical and gynecological organization, and third, by the hospital organization. "Her role is that of referee or impartial differentiate." The doctors' private organization, or private diagnostic clinic, is operated within the confines of Duke Hospital with some of the hospital's facilities and some of theirs. The hospital has nothing to do with this organization. The doctors are charged for the use of the hospital's facilities.
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