McLeod v. . Hicks

Brogden, J. There is much technical testimony in the record involving the complicated structure of the human eye and its functions. Tbe law of the case is simple and well settled. Tbe legal duty imposed by law upon physicians and surgeons has been declared in detail in the cases of Nash v. Royster, 189 N. C., 408, 121 S. E., 356; Smith v. McClung, 201 N. C., 648. It is to be further noted that res ipsa loquitur does not apply to the facts in this case. Spring v. Doll, 197 N. C., 240, 148 S. E., 251; Smith v. McClung, 201 N. C., 648. There are certain facts which are uncontroverted, which may be stated as follows: 1. Tbe plaintiff bad a cataract in bis left eye which bad been in existence more than twenty years. 2. Tbe preliminary or first stage operation for tbe removal thereof was properly done. 3. Tbe cataract was actually removed on or about 2'T September, 1926. 4. Tbe defendant possessed the degree of learning, skill and surgical ability required by law. 5. A proper incision, at a proper place, and with tbe exercise of proper technique for tbe removal of tbe cataract bad actually been made in tbe eye. 6. Plaintiff suffered pain after tbe operation and finally lost tbe eye entirely by removal about three years thereafter. Tbe plaintiff, notwithstanding tbe fact that all tbe evidence disclosed that tbe defendant possessed tbe requisite degree of skill and ability, contends that tbe defendant did not' actually apply such skill in performing tbe operation for tbe reason that an incision was made in tbe white part of tbe eye penetrating tbe posterior chamber, thereby causing tbe loss of tbe vitreous humor therein and the consequent destruction of the-eye. Tbe defendant, upon tbe other band, by tbe uncontroverted testimony of experts, shows that an incision was properly made at tbe cornea scleral junction, and that when tbe cataract was removed it was discovered that tbe eye was practically destroyed by disease, and particularly that tbe vitreous humor bad greatly deteriorated. *134 Upon these contentions the first question to arise is: "Was there an incision in the white of the eye, a quarter, an eighth or a sixteenth of an inch above the colored portion? The plaintiff, who is a layman, and certain members of his family and friends, who are also laymen, testified that there was such an incision in the white of his eye. All the medical experts, who examined the eye, testified that there was no such incision in the white of his eye, but that the incision was in the cornea scleral junction. It is urged by the defendant that the determination of whether there was a cut in the white of the eye is exclusively a technical question involving exclusive questions of science, and that, therefore, lay testimony would not be competent or permitted to be given determinative weight. This contention cannot be sustained for the reason that it cannot be said as a matter of law that a layman cannot testify as to the location of a knife incision or wound upon the exterior of the body, or that such testimony should not be entitled to the same weight as that of an expert witness. Therefore, in passing upon a judgment of nonsuit, it must be assumed that there was a cut or incision in the white portion of the eye. The uncontroverted testimony also discloses that there was a cut or incision in the cornea scleral junction through which the cataract was actually removed. The plaintiff is not entitled to recover for any injury or damage occasioned by the incision in the cornea scleral junction for the reason that all of the expert testimony is to the effect that said incision was properly made in the exercise of the requisite degree of skill, and that in fact the cataract could not have been removed in any other way or manner; that is to say, the evidence fails to disclose any negligence whatever traceable to the incision made by the defendant at the cornea scleral junction. But the plaintiff asserts that the destruction of his eye was the proximate result of the cut, gash or incision in the white part thereof. He proceeds upon the theory that the incision or gash in the white part penetrated to the posterior chamber of the eye, severing the membranes therein and causing the escape of the vitreous, which oozed and exuded through said incision as testified to by himself and his lay witnesses. The defendant combats this theory upon the ground that the jelly like fluid exuding from the incision testified to by plaintiff was the ordinary result of the conjunctival incision. Moreover, there was testimony that if the posterior chamber of the eye had been penetrated, the vitreous humor would have escaped immediately. In the final analysis the plaintiff sues to recover damage for the loss of his eye, which he asserts was proximately caused and brought about by the negligence of the defendant in performing the operation complained of. *135 Tbe evidence discloses three and only three possible causes for the loss-of the eye. The first is, that the eye was destroyed by the ravages of disease, long existent and progressive in nature, and that the operation merely disclosed the deterioration already accomplished. Obviously, in the absence of evidence, that the operation aided, increased or accelerated the course and movement of natural causes, the defendant would not be liable in damages. The second is, that the operation performed by making an incision at the cornea scleral junction and removing the cataract was negligently done resulting in total loss of the eye and consequent damage. But all the testimony is to the effect that the cataract was actually removed and the testimony of all the experts discloses clearly and unequivocally that said cataract was properly removed, by a proper incision at the cornea scleral junction, in the exercise of that technique and skill required by law. Manifestly the proper skill and technique required and employed for such a delicate operation is exclusively a question of surgical science and care, and hence to be ultimately determined by expert testimony. Moreover, there is no evidence that the cornea scleral junction incision or the removal of the cataract was negligently made or performed. The third cause for the loss of the eye and the one relied upon by the plaintiff is that the cut or gash in the white portion of the eye was the proximate cause of the injury. In support of this position, he calls attention to the testimony tending to show that after the preliminary operation, his vision improved so that he could see the spokes in an automobile wheel and the straps upon the shoes of his wife. But did the injury result from disease ? Did it result from the cornea scleral junction incision, or did it result from the cut in the white portion? Assuming that the cut in the white was negligently made, there is no evidence that such incision caused the loss of the eye, and without such evidence the plaintiff is not entitled to recover. The plaintiff relies upon certain exclamations or declarations made by the defendant at the time of the operation and later at a conference in his office. The defendant denies the making of such exclamations or declarations, but assuming they were made, they do not constitute an admission of liability. Affirmed.