Wiggins v. Piver

• Decision Date: 06 January 1970
• Docket Number: No. 51,51
• Citation: 171 S.E.2d 393,276 N.C. 134
• Court: North Carolina Supreme Court
• Parties: Anna Belle WIGGINS v. James PIVER.

Page 393

171 S.E.2d 393

276 N.C. 134

Anna Belle WIGGINS v. James PIVER.

No. 51.

Supreme Court of North Carolina.

Jan. 6, 1970.

Aycock, Laroque, Allen, Cheek & Hines, by C. B. Aycock, Kinston, for plaintiff.

E. W. Summersill, Jacksonville, and Marshall & Williams, by Alan A. Marshall, Wilmington, for defendant.

HIGGINS, Justice.

The plaintiff seeks to hold the defendant financially responsible for injury and damage she alleges resulted from his negligent surgical treatment. She does not allege a lack of professional learning, skill or ability to perform the operation. Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339; Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565, 21 A.L.R.3d 944; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762; Nash v. Royster, 189 N.C. 408, 127 S.E. 356. She does allege, however, the defendant was negligent: (1) By attempting to close incisions of such length (1 1/4 and 1 1/2 ) by the use in each instance of only two sutures; (2) By drawing the sutures too tightly, thus impeding the flow of blood necessary to heal the incisions and to prevent infection; and (3) By inserting the sutures too far from the edges of the skin, resulting in excessive scarring. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617.

The operative procedures here involved would seem to be as simple and uncomplicated as any cutting operation one may imagine. Reason does not appear to the non-medically oriented mind why there should be any essential differences in the manner of closing an incision, whether performed in Jacksonville, Kinston, Goldsboro, Sanford, Lexington, Reidsville, Elkin, Mt. Airy, or any other similar community in North Carolina.

In this connection, it may be observed that while the defendant was on the stand (as an adverse witness), his own counsel, over objection, was permitted to ask the question and receive the answer here quoted: 'State whether or not you followed these procedures, the ordinary and customary and accepted procedures, in such cases. A. Yes, sir. * * * The surgery that I did on Mrs. Wiggins was identical to the surgery that I do daily and prior to her operation I had done daily and since her operation have done daily. This procedure is in accordance with good medical practice. I followed the procedures required by good medical practice. * * *'

The witness' answer as to the ordinary, customary and accepted procedures was not limited to Jacksonville or even to similar areas. However, the defendant, by successful objection, excluded testimony of Dr. Howell because he was not familiar with Jacksonville.

Unless the trial court committed error in excluding the testimony of Dr. Howell, the judgment of nonsuit should be sustained. The picture changes, however, if Dr. Howell's testimony is added to the other evidence. Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548. Hence, the admissibility of Dr. Howell's testimony is crucial and determinative of this appeal.

The question of law presented simply stated is this: Was Dr. Howell's testimony on a simple operative procedure (closing shallow incisions after removing a small amount of tissue) rendered incompetent because he was not familiar with the practice in Jacksonville. He did have knowledge of these procedures in similar localities around Winston-Salem. The trial court excluded the testimony, adhering strictly to the 'locality rule'.

Our cases hold that a physician or surgeon must 'possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess'. The rule stated refers to the minimum qualifications a physician or surgeon must have in order to qualify him to render personal services in his field. The cases further hold that even though the physician or surgeon possess the qualifications, he still must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case. Starnes v. Taylor, Supra, and cases therein cited.

The 'locality rule' (never recognized in England) had its origin in the very old and far away days when there were many little institutions which called themselves medical schools. Students were admitted who could show a high school diploma or funish a certificate from a school principal that the bearer had completed the 'equivalent' of a high school course of study. At the end of the course, he was given an M.D. degree. Passing the licensing board was in the nature of a formality. In many rural communities, ever thereafter the doctor was on his own. Frequent refresher courses, now generally attended, were unknown. The practice in the earlier days is described in the concurring opinion in Sims v. Charlotte Liberty Mutual Ins. Co., 257 N.C. 32, 125 S.E.2d 326.

Now medical schools admit only college graduates. They are equipped to the highest point of efficiency and turn out doctors who must continue their studies by internships and by actual experience under expert supervision. They continue to study, continue to attend refresher courses, and have access to journals which afford them opportunity to keep them current in the latest treatments and procedures.

In the old days, there was some reason for the 'locality rule'...