Ballance v. Wentz

206 S.E.2d 734 (1974) 22 N.C. App. 363 June Melody BALLANCE, a minor, v. Dr. Irl J. WENTZ et al. No. 745SC273. Court of Appeals of North Carolina. July 17, 1974. *737 Chambliss, Paderick, Warrick & Johnson, P.A. by J. B. Chambliss, Clinton, for plaintiff-appellant. Poisson, Barnhill, Butler & Martin by M. V. Barnhill, Jr., Wilmington, for defendants-appellees Wentz and Dineen. Hogue, Hill, Jones, Nash & Lynch by William L. Hill, II, Wilmington, for defendant-appellee New Hanover Memorial Hospital, Inc. HEDRICK, Judge. The single question presented by this appeal is whether the trial court erred in granting defendants' motions for directed verdicts. Because of the involvement of multiple defendants in this suit, our consideration of the question must necessarily be two-pronged. We shall first discuss the alleged negligence of defendants, Drs. Wentz and Dineen, and conclude with a consideration of the defendant hospital's alleged negligence. "A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill, and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. [citations omitted]" Hunt v. Bradshaw, 242 N.C. 517, 521, 88 S.E.2d 762, 765 (1955) Plaintiff does not contend that Drs. Wentz and Dineen do not possess the requisite knowledge and skill of others similarly situated; however, she does argue that the doctors did not exercise reasonable care and diligence in the application of their knowledge and skill and that they did not use their best judgment in the treatment and care of the minor plaintiff. The standard of care required of a physician or surgeon is a matter involving highly specialized knowledge with respect to which a layman can have no reliable information. For this reason, both the court and the jury must usually be dependent on expert testimony to establish the standard of care. Jackson v. Sanitarium, 234 N.C. 222, 67 S.E.2d 57 (1951). Herein lies the fatal flaw in plaintiff's case against the defendant doctors. At no point in the record does there appear to be an attempt by plaintiff to establish what constitutes good orthopedic practice in the application, treatment, care, and supervision of the traction. Neither of plaintiff's medical experts—Dr. Wentz and Dr. Dorman—testified as to the standard of care exercised by other orthopedic doctors in treating patients with similar problems. Thus, the plaintiff having failed to establish by expert testimony the standard of care to be exercised by the defendant doctors, it follows a fortiori that plaintiff has shown no negligence on defendants' part. Furthermore, the plaintiff's contention that the doctrine of res ipsa loquitur applies is without merit, because we do not view this case as one which is susceptible to the application of that doctrine. Although the use of the res ipsa loquitur doctrine in medical malpractice cases has been approved in several decisions of our Supreme Court, see Mitchell v. Saunders, 219 N.C. 178, 13 S.E.2d 242 (1941); Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932), we feel the following statement by Justice Higgins in Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964) is applicable to the case at bar: "The decisions of this Court generally hold that liability in malpractice cases must be based on proof of actionable negligence. The doctrine [of] res ipsa loquitur cannot be relied on to supply deficiencies in proof." *738 With regard to the hospital's negligence, we are of the opinion that the plaintiff failed to establish any negligence on the part of the hospital. Again, also the doctrine of res ipsa loquitur has no application. All parties have devoted a considerable portion of their briefs to arguing their respective contentions as to whether plaintiff's evidence tends to show that the slipping of the skeletal traction was a proximate cause of any additional injuries suffered by the minor plaintiff. Our decision holding that the evidence fails to disclose any negligence upon the part of any of the defendants with respect to the use of the skeletal traction in treating plaintiff's injuries makes it unnecessary for us to discuss this aspect of the case. For the reasons stated, the judgment appealed from is Affirmed. BRITT, J., concurs. CARSON, J., dissents. CARSON, Judge (dissenting): While the majority opinion correctly states the general proposition that the standard of care required of a physician or surgeon is a matter involving highly specialized knowledge with respect to which a layman can have no reliable information, and that the court and jury are usually dependent on expert testimony to establish the standard of care, there is a well recognized exception to the general rule which is more applicable to the facts in question. That is, where the lack of reasonable care and diligence in the treatment of the patient is so patent that only common knowledge and experience are required to understand and judge the action of the defendant. Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493 (1954); Wilson v. Hospital, 232 N.C. 362, 61 S.E.2d 102 (1950). In those cases the jury is able to understand and apply the standard of the reasonable prudent man without the necessity of specialized medical knowledge. The majority opinion cites the case of Jackson v. Sanitarium to support its position that expert testimony must be used to establish the standard of care. While the Jackson case discusses the general principle as applied by the majority, the actual holding is to the contrary. In writing the majority opinion, Justice Barnhill held, 234 N.C. at pp. 226-227, 67 S.E.2d at p. 61, 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, or proximate cause, be established except by the testimony of expert witnesses, then it has been expressly rejected in this jurisdiction. (Citations omitted.) 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 non-expert jurors of ordinary intelligence may draw their own inferences from the facts and circumstances shown in evidence. (Citations omitted.) Emphasis added. Here, despite the plaintiff's complaint that the traction on her arm was slipping, it was allowed to give way completely and fall with sharp force. It does not take specialized medical knowledge to understand that traction, if applied, must be applied in such a manner that it does not fall. *739 Occurrences of this nature are similar to those found in the case of Norris v. Hospital, 21 N.C.App. 623, 205 S.E.2d 345 (1974), where the failure of the hospital to raise the bed railings at night for an elderly patient was held to present a jury question without expert testimony. I think that the negligence of the attending physicians and the hospital, through its agent, the nurse, was a jury question and should have been presented to the jury. Since the majority opinion does not discuss the proximate cause aspect of this matter, I will not discuss it either. Suffice it to say that I believe that there was sufficient evidence of proximate cause to raise a question for the jury, and the directed verdict against the plaintiff should not have been entered.