*1 363 Ballance v. Wentz WENTZ, BALLANCE, DR. R. DR. IRL J. JUNE MELODY HOSPITAL, INC. MEMORIAL DINEEN NEW HANOVER and No. 745SC273 (Filed July 1974) Physicians Surgeons of 17— treatment arm fracture with trac- § 1. — — sufficiency of evidence tion damages personal injuries by for an action to recover suffered In by negligence plaintiff treating allegedly caused defendant doctors in granted injury traction, properly trial her court for where offered as directed verdict defendants evidence orthopedic application, good practice in the treat- to what constitutes supervision thereby ment, care, to establish failed care doctors. — — Physicians Surgeons 16— fracture traction treatment § arm 2. ipsa loquitur inapplicable inapplicable ipsa loquitur action to recover Bes treating alleged negligence arm fracture with for defendants’ traction. dissenting. Judge Carson by Judge,

Appeal Peel, September 1973 from County. Superior Heard held in Court Session Hanover New Appeals April in the 1974. Court Ballance, by Evelyn M. a civil action instituted This is Melody minor, Ballance, guardian plaintiff, ad litem June for damages alleged injuries by personal suffered recover defendants, allegedly by negligence minor and caused attending physicians, R. Dr. Irl and Dr. J. J. Wentz agents of New Hanover Memorial Hospital, Inc. complaint contain- filed her On 5 March allegations:

ing following pertinent 15, 1969, the minor or about October That on “VII. fracture, Melody Ballance, suffered a June upper admitted and was displacement, of her corporate under in-patient in the defendant’s defendants; fracture and treatment the care treated traction. day November, 2nd about the That on or VIII. hospitalized at hos- plaintiff was still while the minor COURT OF APPEALS *2 pital under the care treatment and of the defendants and plaintiff’s right their and while minor staffs the arm was right traction, and after the fracture of the arm had properly properly healing, relocated and was the traction apparatus causing plaintiff loose broke came the minor displacement right to suffer a refracture with arm. agents IX. That the defendants and their were care- negligent less and in that: They properly place failed to the arm in traction to failed install traction so that it would not arm; come break or loose from the (2) They proper super- failed to maintain care and arm; vision over traction and the neglected (3) They necessary steps take to correct being defects in the traction after warned that the coming loose; (4) They taped plaintiff the arm of the to the trac- negligent tion in a and careless manner. joint negligence X. That the concurrent proximate their defendants and injury staffs cause plaintiff herein as stated. That, XI. as a result of carelessness and agents, and, the defendants and their a result falling surgery performed arm from on leaving plaintiff permanent and and extremely hospitalization scar, noticeable additional expenses required, were pain had to and have to will suffer severe which she would suffer, not otherwise have had to has and will anguish suffer extreme embarrassment and mental from damages scar for the remainder of her life and her suffered $45,000.00.” are the amount of denying any negligence The defendants filed answers part. At trial the offered evidencewhich tended to estab- following: lish the Melody plain- Ballance, On October June right injury tiff, ladder and suffered an fell from a her emergency taken to the room of and shoulder. child was Hospital treated New Hanover Memorial surgeon. Wentz, orthopedic Irl admitted the Dr. Wentz diagnosing hospital upon injury as “a child severe upper displacement humerus, fracture with shaft of the shoulder,” and his own treated the child in the following manner: diagnosos my (sic),

“After I rendered recommended by placing that skeletal utilized traction be a steinmann through pin is, the ulna. That the skin on one side apply and out the skin on the other side that we could so pin a traction bow instrument used to attach to a while it *3 * * * through a bone. done, put hospital bed, After this was in a she was rigged. words, rope In other we attached a rope pulleys the traction bow and the went some weight leading pin, rope and a was attached to the pin. material from the some other traction We sticky, porous type This material to the forearm. is a band- wrapped age very readily and is that sticks skin bandage Through help place. hold it in elastic this again bandage rope another is attached to other traction weight pulleys a amount of is attached and much lesser ”** * keep upright. simply to the arm Octo- patient from 15 remained in the skeletal traction During period time 1969, until 3 November 1969. this ber portable X-ray plaintiff’s to monitor taken of films were X-ray reading healing. progress of the Based on their healing progressing as films the doctors believed parents patient expected; and her and on 29 October placed patient in a shoulder would be were informed days. spica the next few cast within plaintiff’s arm on 1969 the skin traction On November right causing to left with slipped rotate from off her arm to plain- landing her left shoulder. The hand falling her severe the traction caused tiff testified that pain. partner, fell, Dr. Wentz’s After the traction reapply a nurse to incident and he instructed was notified of the Plaintiff, X-rays plain- were taken at time. the traction. No Margaret Elwell, patient shared a mother, who tiff’s testified semi-private each room in the COURT OF APPEALS that the called to attention doctors and nurses the slipping. fact that her traction was On one occasion prior off of the the traction was rein- by placing tape portion forced over the bottom of the traction patient’s around the elbow. 3On November removed, spica the traction was X-rays applied,

cast was “position were taken which disclosed that unsatisfactory healing.” on the Upon fracture was making discovery, this Dr. Wentz recommended to parents open that an procedure performed; reduction operation place took on 5 November 1969. Dr. testi- operation healing fied that firmly disclosed that the fracture was attached stated, improper position. but in an Dr. Wentz good “I healing found that there was side-to-side change in order to fracture, sharp, orthopedic I had to use instruments. osteotomy, carried out what is known as which ‘cutting through definition purpose means bone.’ The relationship side-by-side was to positioning alter the positioning bone to end-to-end of the bone.” happened Plaintiff countered Dr. Wentz’s version of what by introducing into evidence a letter dictated Dr. Wentz approximately year surgery. letter, perti- one after the This part, nent reads as follows: “ ‘On 11-2-69, portion about the skin became

loosened, slipped positioned off. The arm on the was time, my bed for a partner, Dineen, and on the instruction of Dr. reapplied. the skin traction was Dr. J. R. Dineen following morning. checked the traction on the not She was having any unusual amount of discomfort and therefore X-ray during an additional film period was not obtained being reapplied. traction off and I there- application spica fore went ahead with of the shoulder was, course, surprised complete cast and to see that a separation healing occurred, making fracture mandatory surgical it that some treatment be instituted. surgery open She was therefore scheduled for reduc- fixation, using intermedullary tion with internal pin, a Rush postoperative was carried out on 11-5-69. Her course was uneventful, days later, she was dismissed four summary, 11-9-69. In I think that we cannot be certain as position to when fracture was lost. It could have occurred slipped off, particularly when the skin if she be- OF frightened, came and twisted her arm and shoulder in some way. slipped The fracture could also have off while in sit- ting position application And arm to side for of cast.’ signature.” my letter,

After introduction of this testified: Wentz including letter, “The ‘complete separation that I the term terms used this healing fracture,’ repudi- I this will say complete ate at this time. would not that there was a separation. X-ray This based on taken on November 1969.”

“Yes, repudiate statement, I would also ‘In sum- mary, I that we cannot certain think be as to when fracture ” position lost.’ evidence, presentation At the conclusion of the for the defendants’ motions directed verdicts were allowed. From directing judgment defendants, plaintiff appealed. for verdict Chambliss, Paderick, Johnson, P.A., by B. Warrick & plaintiff appellant. Chambliss for Jr., Barnhill,

Poisson, Barnhill, Martin M. Butler & V. appellees and Dineen. defendant Lynch by II, Hogue, Hill, Jones, Nash & William L. Hill Hospital, appellee New Hanover Memorial Inc. for defendant Judge. HEDRICK, single appeal question presented whether the granting for directed

trial court erred in defendants’ motions multiple involvement of defendants verdicts. Because of the necessarily suit, question this two-pronged. our consideration alleged negligence of shall first discuss the We defendants, and conclude a con- Drs. Wentz alleged negligence. hospital’s sideration of the “A who undertakes to render requirements: professional meet He services must these *5 degree learning, skill, and professional possess must ordinarily possess; similarly ability situated which others diligence in the (2) reasonable he must exercise care knowledge case; patient’s application of and skill to his judgment in the treatment and (3) he must use his best 368 COURT OF v.

Ballance Wentz patient. care of his Hunt Brad v. [Citations omitted.]” shaw, 517, 521, (1955). 242 N.C. 88 2d S.E. 762 Plaintiff does not contend that and Dineen do Drs. Wentz knowledge possess requisite not similarly- and skill of others ; argue however, situated she does that the did not exer- doctors diligence cise application reasonable care and in the of their knowledge they judg- and skill and that did not their best use ment in plaintiff. the treatment and care the fatal reason, to which a v. At on expert ^[1] matter Sanitarium, The standard point both the court and the to establish what constitutes flaw involving layman in the record in 234 N.C. plaintiff’s can highly establish have 222, does case 67 S.E. 2d 57 no there against reliable information. For this of a appear standard good orthopedic practice the defendant doctors. usually (1951). care. Jackson be Herein lies attempt by dependent is application, in care, supervision treatment, of the trac plaintiff’s experts tion. Neither medical and Dr. —Dr. by Dorman —testified as to the care exercised other orthopedic Thus, treating patients problems. doctors in with similar plaintiff having by expert testimony failed to establish care doctors, to be exercised the defendant it follows that has shown no on de fortiori part. fendants’ ^[2] Furthermore, res ipsa loquitur applies is without contention that merit, because the doctrine we do not susceptible view application one which to the is Although ipsa loquitur doctrine. res use doctrine malpractice in approved has in been de cases several Supreme Court, Saunders, cisions of our see v. Mitchell 178, ; (1941) graft Royster, S.E. 2d 242 Pender v. N.C. N.C. following (1932), 166 S.E. 285 we feel the statement Higgins Clutts, in Justice Watson 262 N.C. 136 S.E. applicable 2d case at bar: generally liability “The decisions of this Court hold malpractice proof cases must be based on of actionable negligence. ipsa loqmtur doctrine cannot be [of] supply proof.” relied on deficiencies regard hospital’s negligence, With we are of the any negligence opinion failed to establish *6 COURT Ballance v. Wentz ipsa of Again, the doctrine hospital. part the the application. loquitur no has portion of their parties devoted a considerable

All have to whether arguing respective contentions as to briefs plaintiff’s the skeletal the to that tends show evidence any injuries suf- additional proximate cause of holding that the evi- plaintiff. decision Our fered the any any negligence upon part the fails disclose dence to the respect the use of skeletal to defendants with unnecessary us to dis- treating injuries makes it aspect of the case. cuss judgment appealed from stated, the

For the reasons Affirmed.

Judge Britt concurs.

Judge Carson dissents. dissenting:

Judge Carson general majority opinion correctly states the While required physician or proposition that the knowledge involving highly specialized surgeon is a matter information, layman can to have reliable which a usually jury expert dependent on the court and are recog testimony care, there is a well to establish general applicable exception which is more nized to the rule is, question. lack That where the of reasonable facts patent diligence is so care and in the treatment only experience are common judge v. Hawkins the action of defendant. understand and (1954) ; McCain, 2d 493 Wilson Hos 239 N.C. S.E. (1950). pital, 362, 61 2d 102 In S.E. those cases N.C. apply to understand and standard of reason is able necessity prudent man without able knowledge. majority opinion of Jackson v. Sanitarium cites expert support position used its the Jackson case discusses the standard care. While establish majority, general principle the actual hold- OF ing contrary. writing majority opinion, is to the In Justice pp. 226-227, Barnhill held at *7 affirming It is true it has been said verdict mal-

practice any support can be rendered in case without opinion. of medical If interpreted this doctrine is to be physician mean that geon no case can the a failure of or sur- ordinary to exercise care in the treatment of his patient, proximate cause, except by or be established expert witnesses, expressly then it has been rejected jurisdiction. (Citations omitted.) in this Rightly interpreted applied, Opin- the doctrine is sound. knowledge. expert Usually, ion evidence be founded on what is of a concerning highly specialized knowledge one layman to which a can have no in- reliable this, jury formation. As to both court and must be de- pendant expert testimony. Ordinarily there can be no guide. reason, many proximate other cause can For that instances only through established the medium of ex- testimony. pert others, however, There are where non- expert jurors intelligence ordinary may draw own shown circumstances in evi- inferences from dence. facts (Citations omitted.) (Emphasis added.) Here, despite plaintiff’s complaint the traction on give slipping, way completely her and fall with it was allowed to sharp force. It does not take applied, to understand that if must be a in such manner that it does not fall. Occurrences of this nature are Hospital, to those similar found in Norris App. 623, (1974), N.C. S.E. 2d 345 where railings night failure of the elderly the bed raise at for an question present was held to without ex- testimony. pert attending I think that physicians hospital, agent, nurse, and the its jury question presented jury. and should have been majority opinion proximate Since the does not discuss aspect matter, cause I will not discuss it Suffice either. say it to I believe that there was sufficient evidence of proximate question jury, cause to raise a for the and the directed against verdict should not have been entered.