Jackson v. Mountain Sanitarium & Asheville Agr. Sch.

BauNhill, J. The record fails to disclose any evidence of sufficient probative force to require the submission of issues as against the corporate defendant. Hence the judgment of nonsuit as to it must be *225 affirmed. Wilson v. Hospital, 232 N.C. 362, 61 S.E. 2d 102, and cases cited. See Anno. 60 A.L.R. 147. Tbe judgment of nonsuit as to tbe defendant Hanson is sustained on authority of Byrd v. Hospital, 202 N.C. 337, 162 S.E. 738. What is there said is controlling here. However, different questions are presented on plaintiff’s appeal from the judgment on the verdict as to the defendant Joyner. Dr. Peasley performed an autopsy on the body of plaintiff’s intestate. He made a detailed written report of his findings. He identified this report. Thereafter, plaintiff offered it in evidence. Objection thereto was sustained. In this there was error. This error is not cured, as contended by the defendant, by the fact the plaintiff offered the report generally and not specifically for the purpose of corroboration. If the defendants desired the evidence to be so restricted, it was their duty to request the court to so instruct the jury. In the course of its charge, the court below instructed the jury as follows : “The Court instructs you, gentlemen of the jury, that if it does not appear that if the defendant or another physician or a competent nurse had been with the deceased, she would not have died or that her death was the result of her condition prior to the operation which could have been discovered by the defendant by any examination which it was his duty to make, then there would be lack of proximate cause.” This must be held for error. In former decisions of this Court, we have fully discussed the requisite standard of learning and skill and the duty of a physician or surgeon who undertakes to render professional services to a patient. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Groce v. Myers, 224 N.C. 165, 29 S.E. 2d 553; Wilson v. Hospital, supra. Briefly stated, it comes to this: (1) He must possess the degree of professional learning, skill, and ability which others similarly situated ordinarily possess; (2) he must exert his best judgment in the treatment and care of his patient; and (3) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient’s case. There is no evidence in the record tending to show that Dr. Joyner did not possess the requisite knowledge and skill. Plaintiff does not seriously contend to the contrary. His case is made to rest upon the allegation that said defendant, in treating plaintiff’s intestate, failed to exercise reasonable care and diligence in the application of such knowledge and skill, and the evidence in support thereof. To make out his case he must not only prove that the defendant was negligent in this respect, but also that such negligence was the proximate cause, or one of the proximate causes, of the death of his intestate. *226 Tbe court below, in the quoted excerpt from the charge, instructed the jury that there is a failure of proof of proximate cause unless it is made to appear (1) that if the defendant or another physician or a competent nurse had been with the deceased she would not have died, or (2) that her death was the result of her condition prior to the operation which could have been discovered by the defendant by an examination which it was his duty to make. Thus the court laid down the rule that in cases of this kind proximate cause can be established only through the medium of expert testimony and, in effect, eliminated “the greater weight of the evidence” rule as to the burden of proof which applies in civil cases. It must be made to appear by expert testimony that the defendant or another physician or a competent nurse, if present, would have saved the life of this child, or else there was no actionable negligence. There could be no commerce between the facts in evidence and the rationalization of the jury unless such facts were established by expert testimony. The jury must have so understood. The courts generally recognize that the science of medicine is an experimental science and they have been extremely careful to protect physicians and surgeons against verdicts resting on non-expert testimony in those cases where non-expert testimony could constitute nothing more than mere conjecture or surmise and in which only an expert could give a competent opinion or draw a reliable inference. 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. Indeed, we doubt that a physician or surgeon could be found who would be willing to testify unequivocally, in any case, that if he had been present he could have prevented the injury or death. In any event, such 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, or proximate cause, be established except by the testimony of expert witnesses, then it has been expressly rejected in this jurisdiction. Groce v. Myers, supra; Wilson v. Hospital, supra; 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 *227 standard of care required of á 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. Groce v. Myers, supra; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E. 2d 480; Mitchell v. Saunders, 219 N.C. 178, 13 S.E. 2d 242; Olinger v. Camp, 215 N.C. 340, 1 S.E. 2d 870; Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285, 41 A.J. 243; Anno. 69 A.L.R. 1154; 129 A.L.R. 116. When the standard of care, that is, what is in accord with proper medical practice, is once established, departure therefrom may, in most cases, be shown by non-expert witnesses. Here the plaintiff, in the type of evidence offered, has met the test. What the approved practice and the approved treatment are under the circumstances disclosed by plaintiff’s evidence, as well as the probable, cause of death, have been established, at least prima facie, by expert testimony. Failure of the physician to follow the approved practice and administer the approved treatment with ordinary care and diligence is made to appear by lay testimony. Plaintiff’s expert testimony tends to show that it is bad practice to administer ether to a person who is suffering from a common cold. The intestate’s mother informed the surgeon that the child then had a cold. It was not essential that plaintiff prove that the defendant failed to make an examination to discover what he already knew. Due to allergy and the varying conditions of the human system, the reaction of a particular person to a specific drug is not always predictable. Lippard v. Johnson, 215 N.C. 384, 1 S.E. 2d 889. Ether, when administered in a careful manner and in acceptable dosage, may cause the death of the patient. In such cases, however, the patient will die almost instantly. Plaintiff’s intestate lived approximately twenty hours. Thus, death from abnormal reaction in the nature of an allergy is eliminated. It follows that plaintiff’s evidence, standing alone, is fully sufficient to support the inference of actionable negligence. The weight and credibility of the defendant’s evidence are jury questions. Whether it is sufficient to rebut the evidence offered by plaintiff is for the jury to decide. Hence, what inferences and deductions should be drawn from the testimony, when considered as a whole, was for the jury to decide, under proper instructions from the court. *228 The defendants on their appeal here cite and rely on Smith v. Wharton, 199 N.C. 246, 154 S.E. 12, and it is apparent the court below, in giving the quoted instruction, relied on what was there said. However, that decision does not warrant the interpretation accorded it by the defendants. It is true that Connor, J., speaking for the Court in that case, said: “It does not appear that if defendant, another physician or a competent nurse had been with her, she would not have died, nor does it appear that her death was the result of her condition prior to the operation which could have been discovered by any examination which it was the duty of the defendant to make.” But that is not laid down as an exclusive method of proof. Indeed, the opinion specifically states that the question whether plaintiff must resort to expert testimony to establish want of due care was not presented or decided. In so doing, the court used this language: “We do not decide the question discussed in the briefs filed in this Court, as to whether in the absence of testimony of expert witnesses tending to show that defendant, a physician and surgeon, failed to exercise the care ordinarily required of men of his profession, with respect to patients under circumstances similar to those in the instant case, plaintiff was not entitled to recover in this action, for that there was no evidence from which the jury could find that he was negligent . . . We do not deem it wise to discuss or to decide the question until it shall be necessary for us to do so.” As to the corporate defendant and defendant Hanson: Affirmed. As to defendant Joyner: New trial. YaleNtine, J., took no part in the consideration or decision of this case.