Pendergraft v. Royster

OlaeksoN, J. Tbe questions involved in this appeal: (1) Did the trial court commit error in refusing to sustain defendant’s motion as of nonsuit at the close of plaintiff’s evidence and at the close of all of the evidence? C. S., 567. (2) Did the trial court commit error in its charge to the jury, as is set forth in the assignments of error, upon the doctrine of res ipsa loquitur? We think both questions must be answered in the negative. In the ease of Nash v. Royster, 189 N. C., at p. 415, the court below charged the jury: “The court charges you that upon the employment of a physician or surgeon for treatment of a patient, there is an implied contract that the physician will use all known and reasonable means to accomplish the object for which he is called to treat the patient, and that he will attend the patient carefully and diligently; and that is no guaranty that he will cure the patient or that he will not commit an error of judgment.” On this aspect of the case, this Court said, at p. 416, citing numerous authorities: “A physician or surgeon is not required to use 'all known and reasonable means’ to accomplish the object for which he is employed, unless by specific contract he obligates himself to do so.’ ” In this same case, Stacy, G. J., in an able and well considered opinion, citing numerous authorities, said at pp. 413-414: “Ordinarily, when a physician or surgeon undertakes to treat a patient without any special arrangement or agreement, his engagement implies three things: (1) that he possesses the requisite degree of learning, skill and ability necessary to the practice of his profession, and which others similarly situated, ordinarily possess; (2) that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the patient’s case; and (3) that he will exert his best judgment in the treatment. and care of the case entrusted to him.” Pangle v. Appalachian Hall, 190 N. C., 833; Covington v. Wyatt, 196 N. C., 367; Johnson v. Hospital, 196 N. C., 610; Smith v. Wharton, 199 N. C., 246; Penland v. Hospital, 199 N. C., 314; Childers v. Frye, 201 N. C., 42; Ferguson v. Glenn, 201 N. C., 128; Bowditch v. French Broad Hospital, 201 N. C., 168; Smith v. McClung, 201 N. C., 648; Gosnell v. R. R., 202 N. C., 234; Byrd v. Hospital, 202 N. C., 337. In Smith v. McClung, supra, at p. 651, Brogden, J., says: “Hence, if the principle of res ipsa loquitur does not apply, the case should have been nonsuited. . . . These cases do not deny the application of the principle where the facts warrant it, but merely hold that the facts of the particular cases do not justify the application. In McLeod v. Hicks, ante, at p. 134, the observation is made by the same learned judge, “It cannot be said as a matter of law that a layman — 393 — 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.” This principle is sustained by almost the unanimous holdings of the courts. We think the principle well stated and digested in Medical Jurisprudence (Herzog), (1931), sec. 187 p. 162-3: “The doctrine of res ipsa loquitur, that negligence need not be proved where the act causing the injury is such that negligence would necessarily be inferred, has been applied in a few malpractice cases; but generally the plaintiff is required to point out wherein the defendant was negligent, even though it is obvious that the results of the treatment was harmful. In a Kentucky case the defendant had treated the plaintiff for Trench mouth’ by injecting salvarsan into his arm. There was no evidence to show that this was an improper method of treatment, or that the defendant had administered it in a negligent manner. Therefore the court held him not liable, saying that harmful results may follow when a powerful and dangerous drug is used even though the physician proceeds with the utmost care and skill. In many other cases it has been held that mere proof of a mistake or poor results does not itself prove malpractice, hut where the injury is received while the patient is unconscious, the doctrine commonly is held to apply because under such circumstances the patient woiild not be able to testify as to what had happened, whereas the physician could. (Italics ours.) It is also frequently applied in actions to recover damages for X-ray burns.” The author is editor of the Medico-Legal Journal, and therefore well qualified to write on the subject. The general rule is to the effect that there is 'in malpractice actions no presumption of negligence from error of judgment in the diagnosis by a doctor of the patient’s illness, or in the treatment x>r escribed in the failure to successfully effect a remedy or to accomplish as good results as some one else might have done. A doctor is neither a warrantor of cures nor an insurer. “There is, however, a well-recognized exception to the above rules, ‘where there is manifest such obvious gross want of care and skill as to afford, of itself, an almost conclusive inference’ of negligence (Simak v. Foster, 106 Conn., 366; Donahoo v. Lovas, 288 Pac., 698). In such eases, neither affirmative proof of negligence, nor expert testimony as to want of skill, need be given by the plaintiff. This presumption of negligence from certain proven facts, otherwise known as the doctrine of res ipsa loquitur, has been frequently applied, in actions for malpractice, to cases where the surgeon has left a foreign substance, such as sponges or gauze, in the patient’s body after an operation. The dis — 394 — tinction between the application of the general rule, and of tbe exception, is tersely pointed out in Evans v. Roberts, 172 Iowa, 653, where it appeared that a surgeon, in removing adenoids, had injured surrounding healthy tissue. The Court said: ‘If a surgeon, undertaking to remove a tumor from a person’s scalp, lets his knife slip and cuts off his patient’s ear, or if he undertakes to stitch a wound on the patient’s cheek, and by an awkward move thrusts his needle into the patient’s eye, or if a dentist, in his haste, leaves a decayed tooth in the jaw of his patient and removes one which is perfectly sound and serviceable, the charitable presumptions, which ordinarily protect the pactitioner against legal blame where his treatment is unsuccessful, are not here available.’ ” U. S. Law Review (Nov., 1930), at p. 610. Moore v. Steen et al., 283 Pac. (Cal.), 833. Quillen v. Shaggs (Ky.), 25 S. W. (2d series, 1930), 33; Brown v. Shortlidge, 277 Pac., 134 (Cal.); McCormick v. Jones, 152 Wash., 508, 278 Pac., 181. “The maxim res ipsa loquitur applies in many cases, for the- affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view, by showing how the accident occurred, contain without further proof sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer.” Sh. and Redf. on Negl., sec. 59. Womble v. Grocery Co., 135 N. C., 474; Ridge v. R. R., 167 N. C., at p. 518; O'Brien v. Parks-Cramer Co., 196 N. C., at pp. 365-6; Springs v. Doll, 197 N. C., 240. In 65 A. L. R., p. 1028, citing cases from Alabama, Indiana, Iowa, Kentucky, Minnesota, Missouri, Nebraska, Ohio, and Washington, we find: “It is generally held that it is a proper question for the jury to determine whether the leaving of a sponge or foreign substance in a wound is negligence on the part of the defendant.” In Reynolds v. Smith, 148 Iowa, 264, 127 N. W., 192; “the plaintiff was allowed to recover for the negligence of the defendants in leaving a piece of gauze in her abdominal cavity. The defendants requested 'instructions to the effect that all exacted of them was that they follow the customs and usages of physicians in the vicinity where they practiced. The Court said: ‘They were rightly refused, for no evidence was adduced that any particular custom or usage in the matter of avoiding-leaving the gauze in plaintiff was actually followed. Moreover, if there has been such evidence, these instructions ought not to have been given, for, in view of the failure of the wound to heal, to continuance of sup — 395 — puration, together with the significance of leaving such a substance in the body, the issue of negligence must have been submitted to the jury.” 65 A. L. R., supra. In Baer v. Chowning, 135 Minn., 453, 161 N. W., 144, another abdominal operation, a gauze pack or sponge and a portion of a rubber drainage tube that had been used by the defendant were left by him in plaintiffs abdominal cavity. The Court held that that testimony made the question of the defendant’s negligence for the jury. To the same effect, see Sellers v. Noah, 209 Ala., 103, 95 So., 167. 65 A. L. R., supra. “There are some authorities that uphold the view that the failure of the surgeon to remove a sponge or other foreign substance from an incision constitutes negligence per se.” 65 A. L. R., supra, at p. 1030. It is the settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and Avhich tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. Plaintiff’s testimony, corroborated by her husband, was to the effect that a jagged piece of glass, almost an inch long, which was rounded and looked like it had been part of a tube, about three months after the operation, she took from the mouth of her womb. “I kept working it more and more and it went back so far I could not touch it at all, and then again I sat down in the same position and strained myself, and I worked at it until it slipped out in my hand.” Notice was given defendant at once of this occurrence. Plaintiff further testified that thereafter she passed some small pieces of glass three or four times over a period of twelve months. The evidence was to the effect that glass similar to that which the plaintiff alleged she took from her womb was used in the operation by defendant and placed in her parts — irrigation through a glass nozzle. Then again, a glass tube contains the cat gut used and the glass tube is broken to get it out. “After that tube is broken the piece of gauze that contained the glass particles of the tube is put in the waste basket.” “They are broken by the nurse between two gauzes or towels.” “The usual custom for inserting the gauze packing in the vagina is for the nurse to hand you (the surgeon) the gauze and you open it with the forceps, and just slip it in.” — 396 — We think the direct and circumstantial evidence sufficient to be submitted to the jury. Spaas v. Bank, 188 N. C., 529; Eaker v. International Shoe Co., 199 N. C., pp. 383-4. In Hutchins v. Taylor-Buick Co., 198 N. C., at p. 779, it is held: “A prima facie showing carries the case to the jury.” In Bryant v. Construction Co., 197 N. C., at p. 643, Adams, J., says: “In some of our decisions the expressions res ipsa loquitur, prima facie evidence, prima facie case, and presumption of negligence have been used as practically synonymous. As thus used, each expression signifies nothing more than evidence to be considered by the jury.” In operations like the present, the patient is unconscious from the administration of anesthetics. If the principle of res ipsa loquitur did not apply in an action like the present, the patient would be remediless. The court below in charging the jury took the law copiously from the Nash case, supra. The defendant contends that the court below in its charge overlooked the fact that the alleged injury to plaintiff, caused by the glass in the wound, was denied as existing and therefore to sustain the principle of res ipsa loquitur the plaintiff had to prove same. We think the judge’s charge, and the theory upon which the action was tried in the court below, sufficient to meet defendant’s objection and it cannot be sustained. As to res ipsa loquitur, the court below charged the jury correctly as follows: “Where a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have control and management of it use the proper care, it furnishes or would be some evidence, in the absence of explanation of the defendant that the accident arose from want of care. The principle of res ipsa loquilur (which means the thing speaks for itself) in such cases carries the question of negligence to the jury, not, however, relieving the plaintiff of the burden of proof, and not raising any presumption in her favor, but simply entitles the jury in view of all the circumstances and condi - tions as shown by the plaintiff’s evidence to infer negligence and say whether upon all the evidence the plaintiff has sustained her allegation. The plaintiff upon all the evidence must satisfy the jury by the greater weight of the evidence that the defendant was negligent, and that such negligence was the -proximate cause of plaintiff’s injury as alleged by plaintiff.” The defendant contended in his brief: “In this case it was incumbent upon the plaintiff to show by evidence, either direct or circumstantial, first, that her injury, if any, occurred through some agency or instrumentality under defendant’s control; and, second, that in the use of — 397 — such agency or instrumentality the defendant was guilty of negligence, in that he did not exercise his best judgment, ordinary care and skill, as is usually done in such cases of surgeons.” We think the following portion of the charge of the court below meets the very contention: “If the plaintiff has failed to satisfy you by the greater weight of the evidence that glass was in the plaintiff’s body incident to the operation, it would be your duty to answer the first issue No. Even if you should find that some glass was found in her body two or three months after the operation, but that the plaintiff has failed to satisfy you by the greater weight of the evidence that the defendant failed to exert his best judgment, skill and ability, then it would be your duty to answer the first issue No.” Under the facts and circumstances of this case, we think the above charge as favorable to defendant as could be asked for under the authorities. The physician has been of untold value to the human race. Without them pestilence and famine would walk hand in hand on this earth. Health is wealth. The priceless boon of modern medicine and surgery in the last third of a century has added untold blessings to the human family, and longevity of life. The achievements of medicine and surgery are too numerous to mention here and far be it that the courts should put a stumbling block in the way of these communal and humanitarian efforts. It has become a veritable cornerstone of our civilization, and without science of medicine and surgery our structure would crumble. Science now has control of pain by the use of anesthetics. It was the eminent Georgia physician, Dr. Crawford W. Long, who is credited with the initial discovery of this blessing to the human family, in consequence of which pain in surgery has been diminished and science controlling pain. In recognition of his work, the Georgia Legislature erected his statue in the hall of statuary, Washington, D. C. It is written in medical works that in regard to the discovery of anesthesia Dr. Long was, without doubt, the first to make use of the condition, producing it intentionally after deliberate calculations. The principle set forth by Dr. Herzog in his Medical Jurisprudence, supra, is to the effect that where the injury is received while the patient is unconscious the doctrine of res ipsa loquitur is applicable. The defendant and his witnesses, expert and otherwise, contend that the injury could not have occurred as alleged by plaintiff. This, we think, is a fact to be determined by a jury. We think the evidence sufficient to have been submitted to the jury; they, and not we, are the triers of the disputed facts. This Court on appeal to it can only review “any decision of the courts below, upon any matter of law or legal in398 ferenee.” Constitution of North Carolina, Art. IY, part sec. 8. From the record the court below tried the case with care, according to tbe authorities in this and other jurisdictions. The jury has found for the plaintiff. In law we find No error.