Smithers v. Collins

• Decision Date: 02 June 1981
• Docket Number: No. 8027SC666,8027SC666
• Court: North Carolina Court of Appeals
• Parties: Joan Cabaniss SMITHERS v. W. J. COLLINS, M. D.

Page 286

278 S.E.2d 286

52 N.C.App. 255

Joan Cabaniss SMITHERS v. W. J. COLLINS, M. D.

No. 8027SC666.

Court of Appeals of North Carolina.

June 2, 1981.

Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for plaintiff-appellant.

Golding, Crews, Meekins, Gordon & Gray by J. G. Golding, Charlotte, for defendant-appellee.

BECTON, Judge.

The single question presented by this appeal is whether the trial court erred in granting defendant Collins' motion for a directed verdict at the close of plaintiff's case. Plaintiff argues that her evidence was sufficient to show prima facie (1) that Dr. Collins did not follow the established standard of care in that he failed to examine her, even though she, as a post-operative patient, complained of distention, nausea and vomiting for two weeks following her discharge from the hospital; (2) that once a patient makes the complaints that she made, good medical practice dictates that a treating physician perform a pelvic examination and listen to the patient's abdomen with a stethoscope; (3) that Dr. Collins did not perform a pelvic examination or listen to her abdomen, but rather, gave her pain pills and told her that her problem was her nerves; and (4) that the chances of relieving adhesions with a bowel tube and obviating surgery are better if adhesions are diagnosed early. Plaintiff contends that the testimony from Dr. Collins and Dr. Cloninger established the standard of care in the community and that her evidence showed that Dr. Collins did not follow that standard of care.

Dr. Collins contends, on the other hand, that plaintiff's evidence failed to establish any causal relationship between his care of her, or failure to examine her, and the partial bowel obstruction that she subsequently developed. Since Dr. Cloninger testified that the delay, if any, made no difference in his (Dr. Cloninger's) treatment of her, nor did it affect her need for the operation, Dr. Collins argues that plaintiff's evidence fails to show (1) that she had the intestinal obstruction during the time between her discharge from the hospital and the time she left for Myrtle Beach; (2) that she should have been administered a different treatment by Dr. Collins; and (3) that different treatment would have avoided the need for the bowel obstruction operation.

Although plaintiff's testimony as to the nature and extent of her contacts with Dr. Collins and the examinations and treatments which Dr. Collins gave her post-operatively are confusing, ² we are required to consider evidence offered on behalf of the plaintiff as true, and to resolve all conflicts of evidence in her favor. Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607 (1968); Edwards v. Johnson, 269 N.C. 30, 152 S.E.2d 122 (1967); Harris v. Wright, 268 N.C. 654, 151 S.E.2d 563 (1966). Plaintiff is further "entitled to all reasonable inferences in her favor which properly may be drawn from the evidence." Wilson v. Hospital, 232 N.C. 362, 365, 61 S.E.2d 102, 104 (1950). See also Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969); Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969).

To the well-established rule giving the plaintiff the benefit of the doubt on a motion for nonsuit, we append another: judicial caution is particularly called for in actions alleging negligence as a basis for recovery. See Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979); Willis v. Power Co., 42 N.C.App. 582, 590, 257 S.E.2d 471, 477 (1979); Gladstein v. South Square Assoc., 39 N.C.App. 171, 173-74, 249 S.E.2d 827, 828 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178 (1979). Because the allocation of liability in negligence actions requires the application of the reasonable, prudent person test, the jury is generally "recognized as being uniquely competent to apply the reasonable man standard." 39 N.C.App. at 174, 249 S.E.2d at 829. In order for the jury to pass on the reasonableness of a physician's conduct in many medical malpractice cases, however, there is a requirement that expert testimony is needed to establish the standard of care, Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493 (1954); Jackson v. Sanitarium, 234 N.C. 222, 67 S.E.2d 57 (1951), rehearing denied, 235 N.C. 758, 69 S.E.2d 29 (1952); Wilson v. Hospital, 232 N.C. 362, 61 S.E.2d 102 (1950), and the proximate cause of the plaintiff's injury, Jackson v. Sanitarium; Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339 (1968). This expert testimony is generally required when the standard of care and proximate cause are matters involving highly specialized knowledge beyond the ken of laymen. It has never been the rule in this State, however, that expert testimony is needed in all medical malpractice cases to establish either the standard of care or proximate cause. Indeed, when the jury, based on its common knowledge and experience, is able to understand and judge the action of a physician or surgeon, expert testimony is not needed. We have found no stronger nor clearer statement than that of Justice Barnhill in Jackson v. Sanitarium :

Yet this Court has not and could not go so far as to say that in no event may a physician or surgeon be held liable for the results of his negligence unless the causal connection between the negligence and the injury or death be established by the testimony of a brother member of defendant's profession.... (S)uch a rule would erect around the medical profession a protective wall which would set it apart, freed of the legal risks and responsibilities imposed on all others.

It is true it has been said that no verdict affirming malpractice can be rendered in any case without the support of medical opinion. If this doctrine is to be interpreted to mean that in no case can the failure of a physician or surgeon to exercise ordinary care in the treatment of his patient (the standard of care), or proximate cause, be established except by the testimony of expert witnesses, then it has been expressly rejected in this jurisdiction. Groce v. Myers, (224 N.C. 165, 29 S.E.2d 553 (1944)); Wilson v. Hospital, (232 N.C. 362, 61 S.E.2d 102 (1950)); Covington v. James, 214 N.C. 71, 197 S.E. 701; Gray v. Weinstein, 227 N.C. 463, 42 S.E.2d 616.

Rightly interpreted and applied, the doctrine is sound. Opinion evidence must be founded on expert knowledge. Usually, what is the standard of care required of a physician or surgeon is one concerning highly specialized knowledge with respect to which a layman can have no reliable information. As to this, both the court and jury must be dependent on expert testimony. Ordinarily there can be no other guide. For that reason, in many instances proximate cause can be established only through the medium of expert testimony. There are others, however, where nonexpert jurors of ordinary intelligence may draw their own inferences from the facts and circumstances shown in evidence. (Citations omitted.) (Emphasis added.)

234 N.C. at 226-27, 67 S.E.2d at 61-62. And when the standard of care is established either by expert or non-expert testimony, "departure therefrom may, in most cases, be shown by non-expert witnesses." Id. at 227, 67 S.E.2d at 62.

This is not a case "concerning highly specialized knowledge with respect to which a layman can have no reliable information." Id. at 227, 67 S.E.2d at 61. Applying the facts of this case to the law long established by our courts, we conclude, based on the following discussion, that plaintiff has carried her burden on the standard of care issue and on the proximate cause issue.

With regard to the standard of care in diagnosing intestinal obstructions, Dr. Collins testified:

We know that the average patient, for the first two or three days (after major abdominal surgery) does not have a bowel movement, because their colon is sluggish.

. . . . . .

(W)e try to minimize any possibility of distention if the lack of bowel movement continues and if the patient does not have a spontaneous bowel movement, then we prescribe enemas; ... Then, if the enemas don't work and the patient has clinical signs of abnormal distention, which means marked distention, we check for bowel sounds. If the bowel sounds, instead of being a normal, intermittent, low, rumbling type (is) a real high-pitched crescendo type, that indicates to us that there may be some blockage; and then we have to go further with maybe stronger enemas and possibly get an x-ray to see if there is what we call a paralytic ileus present, or, indeed, intestinal obstruction.

. . . . . .

If this problem of no bowel movement continues, it is normal to do an x-ray to find out if there is an obstruction. I would do it if enemas did not release or promote normal bowel movements, if the patient had signs that were more than usual for the distention we described ... then we would order an x-ray to see if, indeed, there were an obstruction.

. . . . . .

I might add, not having bowel movements is a common problem until the patient gets into a normal active phase of life again.

. . . . . .

Usually, you at least have one bowel movement seven or eight days after the operation. In the absence of these bowel movements, the normal treatment or investigation that you would do at that time would be an x-ray. The first x-ray is what they call a KUB, which basically is just an x-ray of the abdomen to see for gas patterns and...