99 S.E. 358 | N.C. | 1919
Plaintiffs sought to recover damages for malpractice of defendants, physicians and surgeons, in wrongly and negligently diagnosing the feme plaintiff's pregnancy as a case of fibroid tumor of the uterus or an ovarian tumor. There was much evidence taken at the trial upon the questions of negligence and damages as to each of the two defendants, and the jury returned the following verdict: *504
"Were the plaintiffs injured by the negligence or want of skill of the defendants, or either of them? Answer: `No.'"
There were two other issues as to the damages each of the plaintiffs was entitled to recover, but as the verdict upon the first issue was adverse to them they were, of course, not answered, as it was not necessary that they should be. It is alleged in the complaint that the doctors, after their examination had been made — each acting separately in making it, and consulting thereafter together in regard to it — reported that thefeme plaintiff was suffering from an ovarian tumor of rapid and malignant growth, and that an immediate operation was necessary, and that when the incision in the abdomen was made so that the ocular proof of her condition was afforded and her real trouble was disclosed it was found that there was no tumor, but that instead she was between four and five months advanced in pregnancy. That for the purpose of the operation she was taken, under the advice of Dr. Ring, to the Twin City Hospital at Winston-Salem, where Dr. A. de T. Valk resided, and where, in the hospital, he first made his examination of her and pronounced her ailment that of an ovarian tumor of rapid growth, calling for an immediate operation.
It is further alleged that when they were informed by the physicians and surgeons as to the cause of the feme plaintiff's then physical condition, both plaintiffs urged that she go to the hospital at Baltimore for further diagnosis and treatment, when Dr. Ring protested against such a course, and insisted that, in view of the seriousness of her trouble, she be carried at once to Winston-Salem, as delay would be dangerous, if not fatal; he further asserting that Dr. Valk was the most (479) skillful surgeons in the State, and all would be well. That, after both examinations had been completed, the defendants declared that their knowledge of her case was sufficient; their diagnosis was positively correct; that they knew what they were doing; that no further diagnosis was necessary or required; that they knew for a certainty that an ovarian tumor existed and that it required an immediate operation to prevent death. That upon this representation, and trusting to the skill and ability of her physicians and surgeons, the plaintiffs yielded to their advice, the feme plaintiff submitting to the operation with her husband's consent, and the same was performed with the result above stated. That morphine was injected into her arm and anesthetics administered until she was sufficiently under their influence, when the incision, eight or ten inches in length, was made in the abdomen, which exposed the internal organs and showed the diagnosis to be false, as thefeme plaintiff was only normally pregnant, and there was no indication of tumor. The surgeon's wound was closed, the patient recovered of it, and in due course was delivered of her child without any untoward *505 incident in the accouchement. She afterwards, within the usual period, was restored to her normal health.
It is further alleged "That the defendants negligently performed the operation without possessing or exercising the knowledge and skill possessed by the ordinary physician in surgery, and without possessing and exercising this knowledge did negligently and carelessly undertake to diagnose and determine the condition of the feme plaintiff; and did, without possessing and exercising the skill and knowledge possessed and exercised by the ordinary physician and surgeon, carelessly, negligently, and erroneously diagnose and determine that the said feme plaintiff was suffering from an ovarian tumor of rapid growth, when in fact she was not so suffering, and that the defendants knew or should have known it by the exercise of the ordinary knowledge and skill possessed by the average physician and surgeon," thereby requiring long confinement of feme plaintiff to her bed and causing her great bodily pain, and also mental anguish in many ways, which are particularly set forth, and the loss of services and other benefits, to her damage ten thousand dollars.
The defendants distinctly and circumstantially denied, except in one respect, each and every allegation of negligence or malpractice, and the existence of any fact tending to show it, or to prove that they acted otherwise than the most careful and skillful physicians or surgeon would have done under like circumstances, and also denied all right to damages, and this denial made up the issues submitted to the jury.
The complaint was amended so as to allege that the incision was too long, and that this error in operation caused hernia, which it appears developed some time after child-birth. This also was (480) denied.
We will now state, in substance, the contentions of the parties, with such allusions to the testimony as may be thought proper to give a clear apprehension of the case from the two different standpoints:
The plaintiffs contended that, upon the evidence, it appeared that thefeme plaintiff was not suffering from tumor of any kind, but was in a normal condition, with the exception of the unusual menstrual flow during her state of pregnancy, and the fact that she experienced no symptoms, such as nausea, and so forth, indicating that she was pregnant. That the surgeons had made an exceedingly superficial diagnosis, and one not calculated to disclose, with any reliable degree of certainty, her real condition, and that in not making a closer and more minute examination of her body, as a careful physician of ordinary knowledge and capacity would and should have done, they were misled by their own fault in this respect, and thereby caused the feme plaintiff great and unnecessary suffering of mind and body, and her husband *506 great mental anguish and the loss of her society and services, and subjected him to great expense laid out in her cure and restoration to health. They assert that defendants should have been more skillful and careful in their diagnosis and treatment of their patient, especially in view of the urgent appeal made to them by plaintiffs that she be taken to Baltimore for further observation and study of her case, which they predict would have resulted in a different diagnosis and the ascertainment of her real condition, and would have saved her from the serious operation she underwent and its attendant suffering and anxiety, and left her in a normal state of health and strength to withstand and overcome the perils of pregnancy and child-birth. They also complain of the herein which followed the useless operation to which she was subjected. They allege, with testimony to support them in their contention, that there were other well-known, tests for determining a case of pregnancy which were not resorted to by the defendants, and that in all they did there was a total lack of proper care, caution, knowledge and skill, which resulted in her injury; and further and lastly, that they did not give their consent to an exploratory operation, but having been assured of the presence of a malignant tumor requiring immediate surgical interference to save life, they consented, and she submitted only to that kind of operation, relying upon the superior knowledge and skill of the defendants to acquaint them with the facts and to advise as to the proper course to be taken.
The defendants, on the contrary, contend, and refer to evidence to sustain them, that the sole theory of the complaint was a negligent mistake in diagnosis, in that the defendants, thinking the feme plaintiff had an ovarian cyst or tumor, operated on her for that condition (481) when in fact she was pregnant, which was disclosed at the time of the operation. The contention of the defendants was that it was very difficult to determine the true condition of the feme plaintiff, and that in their opinion the indications were that it was an ovarian tumor or cyst, but that the true condition could not be determined other than by an exploratory operation, and that this was the nature and character of the operation. The feme plaintiff is a married woman forty-seven years old, and prior to the date of her visit to Dr. Ring at Elkin on 8 January, 1917, had given birth to three children at intervals of three and two years, and that at these births conditions were normal, the last of the children having been born twelve years prior to her visit to Dr. Ring; that from the date of the birth of the last child until the latter part of August, 1916, the feme plaintiff was regular in her periods, and that on or about 21 September, 1916, was noticed the first irregularity, the period at that time being partially suppressed, continuing with slight but constant flow, and broken by periods of one *507 or two days with an absence of flow, with the exception of one week; these conditions continued until 8 January, 1917. That at the time of her visit to Dr. Ring the feme plaintiff herself had not observed any signs of pregnancy, but thought she had a tumor, and so stated to Dr. Ring, at the same time also stating to him the history of her case as just detailed. There was an apparent enlargement of the abdomen. Without coming to a definite conclusion as to the true condition, but strongly suspecting a tumor, Dr. Ring advised that she go to Winston-Salem for consultation with Dr. Valk, looking to an operation. On 12 January, 1917, Mr. and Mrs. Brewer, accompanied by Dr. Ring, came to Winston-Salem, and went to the Twin City Hospital, arriving late in the afternoon. After supper Dr. Valk made an examination of Mrs. Brewer, she at the time being undressed and in bed. (Dr. Ring had made his abdominal and vaginal examination of the patient while she was standing in an erect position.) Dr. Ring then gave Dr. Valk the history of the case that he had received. In addition to the information received from Dr. Ring, Dr. Valk was told by Mrs. Brewer that she had not had any pain or nausea, and that there had been no cancer or tuberculosis in the family. Mrs. Brewer at the time gave to Dr. Valk practically the same history, only in greater detail, that she had given to Dr. Ring, Mrs. Brewer stating to Dr. Valk her belief that she had a tumor. Dr. Valk made a vaginal examination with the patient in bed, and also made an external examination, the vaginal examination being made with the right hand on the abdomen and the two fingers of the left had in the vagina, which disclosed a rather indefinite mass in the lower part of the abdomen, the mass being smooth, inclining to be a little harder on the right side than on the left. This mass was attached to the neck of the womb or cervix, which was exceedingly hard, and at that time the patient was bleeding. As a (482) result of this examination, Dr. Valk diagnosed it as a sub-mucuous fibroid tumor, or possibly a cyst. There were two examinations made by Dr. Valk, one after supper of the day of the arrival the next one the second or third day afterward. Dr. Valk reported to Mr. Brewer his diagnosis, qualifying it by the statement that he was not sure of the condition, and suggesting an exploratory incision, meaning by that an incision for opening the abdomen with a view to ascertaining the true condition. The real point at issue in this case was the allegation of wrongful or mistaken diagnosis. Upon this point all of the physicians agreed that there were conditions under which the diagnosis and conclusion as to the choice between pregnancy and tumor is attended with extreme difficulty, and that all physicians make mistakes in that respect. Six physicians other than the defendants, testifying for the defendants, and one physician testifying for the plaintiff, stated *508 that, under the circumstances of this case, it was extremely difficult to know the true condition, and all of defendants' experts agreed that under the circumstances an exploratory operation was not only the wisest course to pursue but was necessary and in entire accord with good practice. Two physicians testified for the plaintiff, Drs. Duncan and Choate. The latter was not asked for his opinion or views upon the question of diagnosis, his testimony dealing entirely with hernia. Dr. Duncan was asked by the plaintiff a hypothetical question to ascertain his opinion as to whether the defendant Ring was guilty of negligence, and his answer was, "On account of the abnormal conditions, I am of the opinion that he did use ordinary skill." The abnormal condition to which the doctor referred was the continuous flow. Among the physicians testifying for the defendants were Dr. H. F. Long, of Statesville; Dr. J. M. Reece, of Elkin; Dr. F. H. Gilreath, of Wilkesboro; Dr. A. J. Williams, of Greensboro, and Drs. W. L. Grimes and W. M. Johnson, of Winston-Salem. Drs. Long, Grimes, and Williams are specialists in surgery. Drs. Reece, Gilreath and Johnson are general practitioners. Dr. Ring made the somewhat remarkable statement that he had delivered about 3,000 women and that only one was over the age of forty-seven years. Dr. J. M. Reece stated that he had delivered approximately 2,500 and, with the exception of Mrs. Brewer, he had delivered only one other over forty-seven years of age. There was no dispute among the physicians but what ventral hernias appear in a woman who had not had an abdominal incision. It was likewise agreed that if the hernia in this case was in any way attributable to the incision, it would in all probability have appeared at or shortly after the birth of the child, the fact being that in this case Mrs. Brewer did not observe any signs of the hernia for several months after the birth (483) of the child. Mrs. Brewer was attended by Dr. J. M. Reece. The birth of the child was entirely normal in every respect. Upon the question of the propriety of the exploratory operation, we quote from the testimony of Dr. H. F. Long: "When a physician cannot ascertain and make out the condition of the patient by a diagnosis to his entire satisfaction according to the ordinary gentle methods, such as palpitation externally and a very slight vaginal examination, and, above everything, a very careful history of the case by the patient's own statement, and if after recording the history and making the ordinary abdominal examination with the finger, called the digital examination, he is then in doubt, he is warranted in making an exploratory incision. Contrasting the dangers of letting the condition alone, whatever it may be, when there is a suggestion of pregnancy and tumor, and when there is bleeding, I should say the question should be settled, because the bleeding may mean death on short notice." Dr. Long, together with *509 other physicians, expressed the opinion that the operation did not cause the hernia.
This recital presents fairly the material questions in the case, according to the versions of the respective parties, as stated in their briefs. There was a judgment upon the verdict, and the plaintiffs appealed.
We have stated that the defendants denied categorically all allegations of negligence or want of skill, except in one instance. The seventh section of the complaint charged negligence and a lack of proper or ordinary skill as against Dr. J. W. Ring, and in his answer to that paragraph he admitted the charge. Defendant asked that he be allowed to amend and substitute a denial, as the admission was manifestly an inadvertence. The request was allowed, and the pleading accordingly amended. Plaintiff afterwards offered the originals of the section and the answer thereto in evidence. On objection of the defendant, they were excluded. This may have been error, although the admission, when considered with the other parts of the pleading and the circumstances under which the admission was made, was the very slightest proof, if proof at all, of the fact of negligence. We will assume it was error to exclude this evidence, and when we do so we find no substantial or prejudicial effect in the ruling. If we read the entire pleading it is as plain as it could possibly be that the word "admitted" was substituted for "denied" by the clear inadvertence or misprision of the clerk, stenographer, or typewriter who copied the pleading or by the pleader himself, if in his own handwriting. The context shows, without the shadow of a doubt, what (484) was meant. The charge of negligence was made more than once and each time, except the one in question, it was emphatically denied. The judge may have erred, and perhaps it would have been better to have admitted the papers in accordance with our settled rule, but the ruling was such a slight, infinitesimal and attenuated departure from the correct line of decision, as fixed by us in such cases, that we count it as having no appreciable weight in contributing to the general result. No one could well read the answer of Dr. Ring without clearly understanding that both defendants, who acted in cooperation, intended to make sweeping denial of each and every allegation of negligence or a want of knowledge and skill, and such a denial constituted the warp and woof of their pleading. Courts do not lightly grant reversals, or set aside verdicts, upon grounds which show the alleged error to be *510
harmless or where the appellant could have sustained no injury from it. There should be at least something like a practical treatment of the motion to reverse, and it should not be granted except to subserve the real ends of substantial justice. Hilliard on New Trials (2 Ed.), secs. 1 to 7. The motion should be meritorious and not based upon merely trivial errors committed, manifestly without prejudice. Reasons for attaching great importance to small and innocuous deviations from correct principles have long ceased to have that effect and have become obsolete. The law will not now do a vain and useless thing. S. v. Smith,
They will only interfere, therefore, where there is a prospect of (485) ultimate benefit." Hulse v. Brantley,
We are unable to discover how the evidence as to the hernia worked *511
any harm to the appellants, as it related solely to the issues as to damages, and they lost their case on the first issue. If there is no cause of action there are no damages. The ruling, if erroneous, was, for the reason just stated, without any prejudice. Butts v. Screws,
Expert testimony as to malpractice cases are well considered and discussed in Rogers on Expert Testimony (2 Ed.), at p. 148, sec. 64. It is not the province of an expert to draw inferences of fact from the evidence, but simply to declare his opinion upon a known, admitted or hypothetical state of facts. U.S. v. McGlue, 1 Curtis 1; Heald v. Thing,
This brings us to the question of issues, requests for instructions, and the charge of the court. The issues submitted were sufficient to develop the entire case equally for both parties, and where this is so the rejection of other issues tendered is not error. The form and number (487) of the issues is within the sound discretion of the court, provided they are sufficient to determine the rights of the parties and to support the judgment. Hatcher v. Dabbs,
We may now well consider what are the duties and responsibilities of a physician and surgeon in the diagnosis of a case and the treatment of a patient under his care. A physician entitled to practice his profession, possessing the requisite qualifications and applying his skill and judgment with due care, is not ordinarily liable for damages consequent upon an honest mistake or an error of judgment in making a diagnosis, in prescribing treatment, or in determining upon an operation, where there is reasonable doubt as to the nature of the physical conditions *514
involved or as to what should have been done in accordance with recognized authority and good current practice. Whether errors of judgment will or will not make a physician liable in a given case depends not merely upon the fact that he may be ordinarily skillful as such but whether he has treated the case carefully and has employed in its treatment such reasonable skill and diligence as is ordinarily exercised in his profession. There is a fundamental difference in malpractice cases between mere errors of judgment and negligence in previously collecting data essential to a proper conclusion, or in subsequent conduct in the selection and use of instrumentalities with which the physician may execute his judgment. If he negligently omits to inform himself as to the facts and circumstances, and injury results therefrom, then he is liable. 30 Cyc. 1578-9, at 13; Stalock v. Holm,
Upon the general question as to the competency and value of expert opinions of other physicians and surgeons we may refer to Sawyer v.Berthold,
In this case importance is attached by the experts to the statement of this good woman as to her condition and symptoms. She was clearly misled by the unusual symptoms, although she was the mother of three children, as it seems never to have occurred to her that conception had taken place and that she was in a delicate condition. We can well understand then — with all of this strong and almost irrefragable testimony in favor of the doctors who diagnosed her trouble — how the jury reached the conclusion that they had not been negligent or unskillful, and gave them the verdict. While we may sympathize with the feme plaintiff and deeply regret her misfortune, our plain duty is to execute justice not based upon anything but the law and the evidence in the case. There has been a loss, no doubt, but no legal wrong (490) or injury. The case was correctly tried.
No error.
Cited: Powell v. R. R.,