Brewer v. . Ring and ValkBrewer v. . Ring and Valk
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:
“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
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
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
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
They will only interfere, therefore, where there is a prospect of (485) 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
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
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, 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
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
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 Kan. 142; Taylor v. Kidd, 129 P. 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 foetus 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 (490) or injury. The case was correctly tried.
No error.
Cited: Powell v. R. R., 177 N.C. 248; Bank v. Pack, 177 N.C. 390; Campbell v. Sloan, 179 N.C. 82; Rierson v. Iron Co., 184 N.C. 366, 370; Fay v. Crowell, 184 N.C. 417; S. v. Maynard, 184 N.C. 659; Bank v. Yelverton, 185 N.C. 317; Barbee v. Davis, 187 N.C. 82; Nash v. Royster, 189 N.C. 414; Hunt v. Eure, 189 N.C. 493; Godfrey v. Power Co., 190 N.C. 30, 32; Dorsey v. Corbett, 190 N.C. 785; S. v. Martin, 191 N.C. 403; Bowmen v. Worthington, 191 N.C. 471; Covington v. Wyatt, 196 N.C. 372; McCord v. Harrison-Wright, 198 N.C. 746; Childers v. Frye, 201 N.C. 45; S. v. Caudle, 201 N.C. 86; Munday v. Bank, 211 N.C. 277; Rooks v. Bruce, 213 N.C. 59; Cody v. Hovey, 217 N.C. 413; Gold v. Kiker, 218 N.C. 208; Barrett v. Williams, 220 N.C. 33;