Brewer v. Ring, 177 N.C. 476

"Walker, J.,

after stating tbe facts: "We have stated that tbe defendants denied categorically all allegations of negligence or want of skill, except in one instance. Tbe seventh section of the complaint charged negligence and a lack of proper or ordinary skill as against Dr. <1. W. Bing, and in bis answer to that paragraph be admitted tbe charge. Defendant asked that he be allowed to amend and substitute a denial, as tbe admission was manifestly an inadvertence. The request was allowed, and tbe pleading accordingly amended. Plaintiff afterwards offered tbe originals of tbe section and the answer thereto in evidence. On objection of tbe defendant, they were excluded. This may have been error, although tbe admission, when considered with tbe other parts of the pleading and tbe circumstances under which the admission was made, was tbe very slightest proof, if proof at all, of tbe 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 tbe ruling. If we read tbe entire pleading it is as plain, as it could-possibly be that tbe word “admitted” was substituted for “denied” by the clear inadvertence or misprision of tbe clerk, stenographer, or typewriter who copied tbe pleading or by tbe pleader himself, if in bis own band-writing. Tbe context shows, without tbe shadow of a doubt, what was meant. Tbe charge of negligence was made more than once and each time, except tbe one in question, it was emphatically denied. Tbe judge may have erred, and perhaps it would have been better to have admitted tbe papers in accordance with our settled rule, but tbe ruling was such a slight, infinitesimal and attenuated departure from tbe correct line of decision, as fixed by us in such cases, that we count it as having no appreciable weight in contributing to tbe general result. No one could well read tbe 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 tbe warp and woof of their pleading. Courts do not lightly grant reversals, or set aside verdicts, upon grounds which show tbe alleged error to be harmless or where tbe appellant could have sustained no injury from it. There should be at least something like a practical treatment of tbe motion to reverse, and it should not be granted except to subserve tbe real ends of substantial justice. Hilliard on New Trials (2 Ed.), secs. 1 to 7. Tbe 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. Tbe law will not now do a vain and useless thing. S. v. Smith, 164 N. C., 476; Schas v. Asso. Society, 170 N. C., 420, 424. It is said in 3 Graham and Waterman on New Trials, 1235: “Tbe foundation of tbe application for a new trial is the allegation of injustice, and the motion is for relief. Unless, therefore, some wrong has been suffered there is nothing-to be relieved against. The injury must be positive and tangible, not theoretical merely. For instance, the simple fact of defeat is in no sense injurious, for it wounds the feelings. But this alone is one sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss or the probability of loss there can be no new trial. The complaining party asks for redress, for the restoration of rights which have first been infringed -and then taken away. There must be, then, a probability of repairing the injury, otherwise the interference of the court would be but nugatory. There must be a reasonable prospect of placing the party wh.0' asks for a new trial in a better position than the one which he occupies by the verdict. If he obtains a new trial he must incur additional expense, and if there is no corresponding benefit he is still the sufferer. Besides, courts are instituted to enforce right and restrain and punish wrong. Their time is too valuable for them to interpose their remedial power idly and to no-purpose. They will only interfere, therefore, where there is a prospect of ultimate benefit.” Hulse v. Brantley, 110 N. C., 134; Alexander v. N. C. Trust Co., 155 N. C., 124; McKeel v. Holloman, 163 N. C., 132. See, also, Grice v. Ricks, 14 N. C., 62; Gray v. R. R., 167 N. C., 433. Tried by this rule, so well stated by that standard authority, the objection cannot be sustained. The judge had the discretion to permit the amendment, and we do not review the exercise of the same, in the absence of gross abuse, which certainly does not appear here. Pell’s Revisal, Vol. I, secs. 505, 507, and notes of cases. The Code policy as to amendments is a liberal one and the discretionary power of the court is given to secure and promote a trial upon the merits and to prevent a failure of justice. Blalock v. Clark, 133 N. C., 309; Reynolds v. R. R., 136 N. C., 345. See Pell’s Revisal, Vol. I, p. 237, sec. 507, for other cases. This disposes of assignments of error A and B.

We are unable to discover how the evidence as to the hernia worked 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, 95 N. C., 215; S. v. Smith, supra; Collins v. Collins, 125 N. C., 98; May v. Gentry, 20 N. C., 249; Gray v. R. R., supra. If erroneous it was rendered harmless by the verdict. Graves v. Trueblood, 96 N. C., 495; Vickers v. Leigh, 104 N. C., 248; Perry v. Ins. Co., 137 N. C., 402. It was competent to examine the medical experts upon questions relating to their particular science. We could obtain reliable information upon scientific subjects in no other way, and the jury would be left to guess or grope in the dark, instead of having trustworthy knowledge as to these special matters of inquiry, if their opinions were not admitted for the purpose of enlightening the jury upon such questions as are peculiarly within their knowledge, which they have acquired by actual study, -experience and practice. Lawson on Expert and Opinion Evidence (2 Ed.), p. 123; S. v. Slagle, 83 N. C., 630; S. v. Sheets, 89 N. C., 543; S. v. Bowman, 78 N. C., 509; S. v. Secrest, 80 N. C., 450; S. v. Cole, 94 N. C., 958; S. v. Wilcox, 132 N. C., 1134. It was, therefore, competent to ask the witness whether, in his opinion, upon the facts stated in the hypothetical questions, if found by the jury upon the evidence, the diagnosis was made according to the approved practice and principles of the medical profession. Rogers on Expert Testimony (2 Ed.), sec. 64; Twombly v. Leach, 11 Cash (Mass.), 405; Wright v. Hardy, 22 Wis., 348; Hoener v. Koch, 84 Ill., 408; Mertz v. Detweiler, 8 W. & S. (Pa.), 376; Heath v. Glisan, 3 Oregon, 67; Roberts v. Johnson, 58 N. Y., 613, 615; Mayo v. Wright, 63 Mich., 32; S. v. Bowman, supra; Sawyer v. Berthold, 116 Minn., 441; Sly v. Powell, 87 Kansas, 142; Taylor v. Kidd, 129 Pac. (Wash.), 406. It lias been held competent to ask whether an autopsy bad been properly made, S. v. Moxley, 102 Mo. 386; whether it was necessary to remove one eye to save the sight of the other, which was endangered by sympathetic inflammation, Reid v. City of Madison, 85 Wisc., 667; whether a limb of the patient was or not in as good condition as the average of those treated by skillful physicians or surgeons in like cases, Olmstead v. Gore, 100 Pa. St., 127; and there are in the books other apt illustrations which are almost without number.

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, 45 Me., 392; 1 Greenleaf on Evidence, sec. 440; 1 Wharton on Ev., 452; Wharton’s Cr. Law, sec. 50 f; S. v. Wilcox, supra; Summerlin v. R. R., 133 N. C., 554; S. v. Bowman, supra. The rule, is that the expert must base his opinion upon the supposition that the jury will find the facts recited in the hypothetical question, and there must be evidence of those facts. Rogers on Expert Testimony, sec. 27; S. v. Bowman, supra; S. v. Cole, supra; S. v. Wilcox, supra; Woodbury v. Obear, 7 Gray (Mass.), 457; Com. v. Rogers, 7 Metcalf (Mass.), 500; Summerlin v. R. R., supra. If the plaintiffs objected to the questions addressed to the doctors because it had not been shown that they were experts, they should have made it known, as they cannot be silent when they should have spoken and after verdict advance the objection on this ground for the first time. Summerlin v. R. R., supra. If they had intended to rely on any such ground, and had stated such an intention to the judge, he would have heard the preliminary proof, found the facts and decided upon their competency as experts. Summerlin case, supra. But the physicians were all experts, as the evidence overwhelmingly shows. The court expressly found that Dr. Duncan was an expert, and it was to the questions propounded to him as such that the objection just considered was directed. The answers given by the experts were all competent, as they were the expressions of their opinions upon the question of malpractice, and as to whether the diagnosis was properly and sufficiently made; also as to whether the two diagnosticians should have detected the pregnancy during the course of their examinations or by the use of the ordinary skill and the medical knowledge of an average practitioner.

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 ease equally for both parties, and where this is so the rejection of other issues tendered is not error. The form and number 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, 133 N. C., 239; Garrison v. Machine Co., 159 N. C., 286; Warehouse v. Ozment, 132 N. C., 848; Clark v. Guano Co., 144 N. C., 71; Patterson v. Mills, 121 N. C., 258; Pretzfelder v. Ins. Co., 123 N. C., 164; Strauss v. Wilmington, 129 N. C., 99. There was sufficient averment in the pleadings to distinctly present the questions in controversy, and they could well have been considered under the issues, which were adopted by the court. Hatcher v. Dabbs, supra. The plaintiffs seem, by their prayers for instructions, to have considered the first issue as sufficient. They alleged that they consented only to the operation for tumor, and were fraudulently misled by the defendants. "We do not think the evidence supports any such theory. The prayer for instruction, which was refused and is covered by exception No. 12, is confusing and somewhat contradictory. It assumes in one part that a very serious operation was to be performed for tumor, to which plaintiffs assented and the feme plaintiff submitted, and in another part, that they were not informed of the serious operation, so that the jury would have been misled by its form and language, if the instruction had been given. It appears also that the plaintiffs clearly consented to the operation and fully understood the situation, and the feme plaintiff had said enough to the physicians as to her condition to induce them to go on •with it. They performed the operation with a double purpose, first to explore and discover the true condition, and then to operate further and more extensively if the' situation proved to be serious and called for immediate and drastic treatment. This apparently was the understanding of all parties. But whether so or not, the instruction should not have been submitted as asked to be given. Dr. Duncan, the plaintiff’s own witness, testified, and he concurred with the other doctors in this respect, that Dr. Ring used proper skill and judgment in making the diagnosis. He also said that the peculiar and abnormal conditions might well have misled the two doctors when they made their examination and formed their opinion, especially mentioning as one of these conditions the continuance of the menstrual flow after pregnancy. Dr. Choate, plaintiffs’ witness, stated that ventral hernia arises sometimes from other causes than an abdominal incision. Dr. Talk testified: “Q. What do physicians and surgeons possessing and exercising the knowledge and skill ordinarily possessed by the average physician and surgeon do when there is a suggestion of either pregnancy or tumor with respect to an exploratory operation or the by-manual examination to ascertain the true condition? A. It is a question of-whether they should attempt any examination through the vagina or through the neck of the womb; it might bring about a miscarriage or an abortion. If they should make the incision, the harm to the patient is practically none.” The doctors all agreed, except Dr. Choate, a young physician, that the hernia was not caused by the incision, and he seems to have doubted his own opinion as the hernia came later than was to be expected. But the evidence as to hernia was rendered immaterial by the verdict on the first issue.

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 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, 100 Minn., 276; Johnson v. Winston, 68 Neb., 425. The case of Just v. Littlefield, 87 Wash., 299, a well-considered and well-reasoned one, was much like our case in its facts. It was stronger for the plaintiff, because of the fact that other physicians had diagnosed the patient’s complaint as that of tumor instead of pregnancy, and this was known to the defendant, who after-wards pronounced it a tumor and operated to find out if he was correct, and to remove the tumor and treat the disease if he was. Judge Holcomb, with the concurrence of all his associates, said: “At all events it would seem that, whether appellant did, under the circumstances and conditions shown to exist, proceed with due and ordinary care in treating the patient, was a question of fact for the jury.” He then further says: “The principal question here in whether a physician is, as a matter of law, liable for a wrong diagnosis and ensuing treatment based thereon, even where there may be an honest difference of opinion among members of the medical profession as to the diagnosis, if the diagnostician proceeded with due care, skill and diligence in treating the patient. The law is, of course, well settled that a physician is liable for a wrong diagnosis of a ease, resulting from a want of reasonable skill 'or care on the part of the physician, and followed by improper treatment, to the injury of the patient. But unless improper treatment follows a wrong diagnosis gives no right of action.” 30 Cyc., 1575; 5 Thompson Negligence, sec. 6717; Richardson v. Carbon Hill Coal Co., 10 Wash., 648. There is an elaborate and most excellent note to that case, with a citation and a review of numerous decisions of the courts upon this important subject, with the following statement of the rule as the annotator’s text: “A physician is not held to a higher degree of responsibility in making a diagnosis than in prescribing treatment, and is not liable in damages for an error of judgment in making a wrong diagnosis of a disease in the absence of a failure to exercise reasonable care and proper professional skill.” It would seem to be unnecessary to prolong this opinion with any further reference and discussion of the authorities, as we availed ourselves of the occasion to treat this question at length in the two recent cases of Long v. Austin, 153 N. C., 508, and Mullinax v. Hord, 174 N. C., 607.

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, 116 Minn., 441; Sly v. Powell, 87 Kansas, 142; Taylor v. Kidd, 129 Pac., 406. As to the use of the X-ray, McGraw v. Kerr, 23 Colo. App., 163, and in this connection 'it may be said that Dr. Long stated that the ray would be of no service at that stage of the pregnancy. Whether the fcetus was quick with life, so that the beatings or sounds of the heart could be detected by examination, was a question of fact for the jury to decide upon the evidence, as were the other questions involved (30 Cyc., 1588). Dr. Long stated that in some cases they cannot be heard, depending somewhat upon the conformation of the woman and her physical development, and that the seventh month is the average time for such manifestations.

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 or injury.. The case was correctly tried.

No error.

Case Details

Case Name: Brewer v. Ring

Court Name: Supreme Court of North Carolina

Date Published: May 21, 1919

Citation: 177 N.C. 476

Court Abbreviation: N.C.