Connor v. Hayworth

BkogdeN, J. It was said in Pendergraft v. Royster, 203 N. C., 384, 166 S. E., 285, that “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 [724] treatment prescribed in tbe 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.” The evidence discloses that the plaintiff sustained terrible injuries and doubtless suffered great pain and discomfort, but injury and suffering alone are not sufficient to constitute a cause of action for malpractice in the absence of evidence tending to show that the physician did not possess the requisite degree of skill or that he failed to use such skill in the treatment of the patient. The defendant had duly subpoenaed ten physicians as witnesses. These witnesses were not sworn or tendered for the reason that a judgment of nonsuit was entered. However, the trial judge found that all of the witnesses were experts and allowed each of them a fee of $20.00 per day “for two days attendance fees as expert witnesses to be taxed as a part of the cost of the case.” The plaintiff excepted to the order upon the ground that “the party cast shall not be obligated to pay for more than two witnesses to prove a single fact.” O. S. (Michie’s Code, 1931), 1275. This exception is not sustained. O. S. (Miehie’s Code, 1931), 3893, empowers the trial judge to allow expert witnesses “such compensation and mileage as the court may in its discretion order.” See Chadwick v. Ins. Co., 158 N. C., 380, 74 S. E., 115. The judgment decreed that the plaintiff “pay the costs of the action, to be taxed by the clerk of the Superior Court.” Obviously the remedy available to plaintiff is to lodge a motion to retax the cost. Affirmed. SchuNCK, J\, took no part in the consideration or decision of this case.