Blaine Ex Rel. Blaine v. Lyle

Stacy, C. J. Conceding that the evidence is sufficient to carry the case to the jury under authority of Pendergraft v. Royster, 203 N. C., 384, 166 S. E., 285, and cases there cited, we think a new trial must be awarded for error in allowing the plaintiff to recover hospital and medical expenses from the time she was taken ill in February, 1932. The process of probing did not begin until the summer of 1932, and it con *531 tinued through, the early spring of 1933. Plaintiff is not entitled to recover for hospital and medical expenses incurred prior to the alleged negligence of which she complains. It is true, in one instruction the court said, “The plaintiff is entitled to recover for medical and hospital bills to the extent that they may or have been incurred as the proximate result of the injuries complained of.” But he immediately added: “She contends they are about fifteen hundred dollars.” This contention is based upon the evidence of plaintiff’s mother that the total cost of her illness from and after February, 1932, was about $1,500, including $582 paid to Dr. Lyle or his estate. Moreover, the two metal pieces were removed from plaintiff’s side in February, 1935, and there is no evidence that the recurrence or continuance of her empyemic condition was affected by these pieces after their removal. Indeed, the evidence is to the contrary. The court instructed the jury, however, to consider plaintiff’s “suffering and the condition that prevailed from and after February, 1932, through 4 July, 1936.” So, we cannot say the error was cured or that it was harmless. Johnson v. R. R., 184 N. C., 101, 113 S. E., 606. In McCracken v. Smothers, 122 N. C., 799, 29 S. E., 354, it was held proper for the jury, in a malpractice ease, to take into consideration the injury which plaintiff sustained by reason of the unskillful treatment of the case, which would include the loss, pain, inconvenience, diminished earning capacity, suffering and increased delay in effecting a cure, and probability of permanent injury, necessarily consequent upon the injury sustained by the maltreatment. See Johnston v. Johnston, ante, 255. The holding in Payne v. Stanton, 211 N. C., 43, 188 S. E., 629, a malpractice case, was, that plaintiff is “entitled to recover compensation only for those injuries which proximately result from defendant’s negligent treatment.” The conclusion results that a new trial must be awarded. New trial. Sea well, J., took no part in the consideration or decision of this case.