*1 517 1955. N. C.] HUNT Bradshaw.
рroceeds policy my of insurance on the life of husband. . . .” And it is receipt signed expressly noted that the written she nowhere states by accepted that the sum her in full settlement of her received was claim.
We conclude that the evidence does not establish the de- fendant’s affirmative defense of accord and satisfaction as a matter of jury. open question law. this record it for the Blanchard v. On Co., 589, 598, Co., suprа; Peanut v. Amusement 238 N.C. Winkler Satisfaction, 185, 192; Jur., S.E. 2d 1 Am. Accord and Sections (b). In this view of the 78; C.J.S., Satisfaction, Accord and Sec. 49 sufficiency of the case, we do not reach for decision the plaintiff’s reply. the issue of fraud raised nonsuit entered below of Reversed. v. DR. HOWARD BRADSHAW.
CHARLES S. HUNT 1955.) August, (Filed 26 Physicians Surgeons 14—
1. § surgeon may only damages proxi- be held liable for such A or degree professional possess
mately of his failure to learn- result from similarly ordinarily ability possess, ing, which others situated skill and diligence application in his his to exercise reasonable care failure case, patient’s knowledge or his failure to use his best and skill to the patient. knowledge in his treatment Surgeons Physicians 48— 19: Evidence § § given in a be undertaken case relates to Whether an should only testimony. subject expert expert and is a field of Physicians Surgeons and 20— §§16 of an had a small of steel imbedded his chеst about Plaintiff % lung from his heart. Plaintiff intro- from his and about inches inch 4% expert to the effect that such duced medical migrate body, and that it was within the realm tended to surgical objects, although practice operate for the removal of such one response hypothetical question expert absence testified etc., operate pain fever, not to such instance. he would be inclined fails to show that dеfendant Held: Plaintiff’s own evidence negligent advising 4. Same— foreign object regard from to an for the removal a small X-rays might plaintiff’s body, expert testimony to that additional the effect X-rays desirable, that more have been were but that the witness could object exactly, necessary might more located the IN THE SUPREME COURT.
Hunt v, Bbadstiaw. good surgical practice required .tend show additional in such *2 instance. 5. Same— surgeon contemplаted oper- a The statement of to his that the very simple, plaintiff’s expert testimony ation was while is sufficient to finding operation very nature, held, a that the was of a serious case, ordinary under the care on of facts this insufficient to show such want of part surgeon import liability. as to Physicians Surgeons and 19: 48— Evidence § § approved surgical procedure, Proof of what is accord with and what surgeon performing operation, constitutes the standard of relate of care an expert knowledge may only by be established qualified experts. Physicians Surgeons SO—§ ipsa loquitur apply The doctrine of res to untoward results of 8. Same —Evidence held insufficient to establish that unfortunate result of operation by negligence. was caused Plaintiff’s evidence tended show that defendant advised an operation foreign body plaintiff’s chest, prior to remove a small from operation plaintiff apparent good health, pain to the was in without fever, object foreign removed, opera- that the was not and that after the permanently tion discovered he had lost of his use arm. Plain- expert testimony tiff’s was to the effect that the location of such very difficult, surgeons frequently bodies in an failed to locate that the best them, that the loss of use of arm was а result ischemia, exploring plexus which could occur a brachial without the cutting nerve, unlikely or incision of a and that such results were not performance region plexus. of an in of the brachial Held: Although plaintiff’s justify finding injury sufficient a that the to his hand and arm resulted from the it is insufficient to show by negligence, ipsa loquitur that the results were caused the doctrine of res being applicable, properly and nonsuit was entered. cоncurring.
Bobbitt, J., Appeal by plaintiff from Crissman, J., March, Term, FoR- syth Superior Court.
This is a damages civil action for alleged to have from the resulted negligent (1) failure of the defendant to use reasonable and dili- gence in application of his knowledge and skill as a surgeon, to exercise his best in attempting to remove piece plaintiff’s body. small of steel from allegations To the negligence general the defendant entered a denial. of so substance much of evidence as bears on presented of law follows: TERM, 1955. N. C.] HUNT Bbadshaw. working in man, was plaintiff, an able-bodied July, 1950, On 18 steel, Tenn., when small Kingsport, repair shop near
his auto from the end of an sharp edges, broke off x x about %" %" penetrated plaintiff’s sledge hammer blow axle under a automobile just his collar bone. side of his neck above body, entering the left front There was by Dr. Reed. by Dr. Howkins and later He was examined minutes, but after- for about 15 or 20 bleeding from the entrance wound effect from apparent adverse pain, fever, little and no wards He X-ray photographs made. However, Reed had the accident. Dr. defendant, Bradshaw, Dr. plaintiff consult recommended that the missile. for removal of to an follow advice as five Bradshaw, who had July, 1950, plaintiff consulted On were taken plaintiff’s upper pictures chest. The X-ray pictures made of *3 body showed foreign one two the front, from the back and side. On examination, Dr. after the indistinctly. asked for advice When going down, that thought he the metal was Bradshaw stated that it be removed. heart, strongly he recommended might get into his very one, serious operation, if it was a “I him about the asked very simple.” nothing it, it was said it wasn’t morning August, the the on performed The defendant trying my work up, I I was woke Plaintiff testified: “When experienced that my fingers all; at I had never use hand, and I couldn’t my I use left hand at time can’t present At the feeling before. quote plaintiff To the way at all.” fingers use those no I can't all. up; I woke just short time after Bradshaw for “I saw Dr. further: my fingers; him I clinch morning. I told couldn’t next ... that was the get right, said that that would all my He said use hand. that I couldn’t they get He stated didn’t four weeks. three or probably take it would there wouldn’t be that he checked and He said piece of metal. ... the right.” The everything would be all it; danger said he used told him which Dr. Bradshaw X-ray photographs five identified during the were made some others operation. He said in the radiology X-ray expert in to be an Marr, admitted Dr. James the he had examined testified that plaintiff, for a witness diagnosis, others made on August, August, 1950, on 6 made very fragment had moved opinion the steel 1954; that in his October, object three- metal is abоut one-half inch. The little, probably not over inches from the and one-half lung and about four fourths inch from the 'foreign lodged many cases of “I run across heart. have foreign objects were left of those cases body ... most by find difficult to body. say it is sometimes I would question here.” foreign object of the size in IN THE SUPREME COURT.
Hunt Beaushaw. “As to the internal lying structure of tissues between this missile just the heart would be neck, covering the muscles of the of the then the lung, lung itself, great body and the supply vessels that entire coming They from the heart. . . . three-eighths are about two and piece inches from the piece may changed of metal. The of metal slightly. general experience It is accord with in the medical field respect foreign they bodies of this kind and location that some- times depth penetration do move. The is something of metal cannot very exactly.” be measured
Question: degree any “To what of exactness do of the films dated (These depth foreign object 8-1-50 reveal the of the to be? are Bradshaw.) photographs used Dr. “I pretty
Answer: can tell well how far it is from the back surface body . . . and it about three and one-half inches from the body. surface, nearly I back surface of From the front as can difficult, course, up tell . that is the arms are . . and made because (above hеad) they front, here cast a shadow over this so that exactly measures I can’t tell where the front surface of neck is—that inches, about three or a little less.” body.
“The whole area one vital areas of the aWhen photograph, gets approxima- looks at an what he is an vessels, tendons, tion. You do not see blood nerves or or muscles. I plexus lies back of and below where the believe brachial plexus important body The is a cluster of nerves is now. brachial six vicinity recall, large of this of metal ... As there are comprise plexus and a number of smaller ones. nerves that the brachial controlling arm, left left here would be the area area involved *4 say body. ... I would numerous times ex- hand and left side of body plorations operations foreign been made to locate a have surgeons, in being and find it. The best without аble to locate foreign remove small my experience, frequently are unable to locate and body patient.” bodies in the of a Jeffreys, neurological specialist Everett admitted to be a
Dr. plaintiff: witness for the “I saw Mr. Hunt surgeon, testified as a Octo- 30,1954. My findings the time were that he had a claw hand on ber at atrophies of the muscles. ... I think this the left side. There were (dimin- primarily the result of an ischemia deformity to his arm was plexus, of the brachial supply) part ished or of blood which absence plexus. I don’t have happen exploring a brachial evidence to can they totally not inter- the nerves had been cut in that are believe that extensive for impairment is a little bit too a clean cut rupted, and the . Therefore it seems to me that the . . dis- the nerve. or incision of impaired supply blood the extent involved ability in the arm tо N. C.] BRADSHAW. V.
HUNT part to a plexus, the brachial and this can happen anybody who performs operations in the region of plexus.” the brachial “I it practice think is the usual to remove lie in that this region that have given they penetrated have tissues of vital function and I would good practice consider it territory, this or any territory. I the patient always think should be informed that he might disability have some from arm points, and some salient points, near as as the doctor tell can him about to expect, what be it bad or be good; imagine I that was done in Mr. Hunt’s case.”
In response question to a toas whether additional photographs helpful would have been in locating missile, the steel Jeffreys Dr. “Foreign extremely answered: bodies are difficult locate at times. I would more X-ray views, giving planes, all location, as to anteroposterior its location its location, giving lateral would aid clearer, a more concise view as to rests; where metal but it still might exactly.” not locate it . . my experience . “It has been that it is sometimes difficult to body locate remove a foreign from ... I
patient; difficulty locating had with it, piece of metal. ... difficulty have had in removing them. I have known instances experienced, surgeons wherein skilled and careful in this field have been unable to locate fairly and remove I think it bodies. is a com- among mon experience surgeons skilled in this field.” . . . “When a foreign body, gets body as a . . such metal . into the it mi- grates, particularly gets if it or in sheaths, layers muscle between As relax ordinary muscles. the muscles contract and in their move- ment, propelled up that missile is or down to one side.” hypothetical Jeffreys question, answer to a answered that under facts set out would be inсlined operate symptoms pain, if the were from temperature, free etc. — At evidence, the conclusion the defendant’s motion allowed, judgment accordingly, for as of nonsuit was entered excepted appealed. and the
Eugene Phillips plaintiff, appellant. H. for Womble, Sandridge defendant, & Carlyle, appellee. Rice for J. A who undertakes pro- to render Higgins, requirements: possess fessional services must meet these He must *5 professional learning, ability skill and degree which others simi- (2) larly ordinarily possess; situated he must exercise reasonable care diligence application and in the of his and skill to patient’s case; he must use his in and best the treatment Long 508, 500; of his v. 153 patient. Austin, N.C. 69 S.E. Nash THE IN COURT. SUPREME
Hunt Bradshaw. v. 356; N.C. 408, McClung, Smith Royster, v. 189 N.C. S.E. v. 102; 232 N.C. 2d 91; Hospital, 161 S.E. Wilson 61 S.E. 2d Sanitarium, Jackson v. 67 S.E. If the N.C. civilly liable up foregoing requirements lives to the he is not anj^ particular, he failurе consequences. for the If fails in one and such proximate injury damage, he is is the cause of liable. deficient, either in plaintiff The Dr. Bradshaw was contend ability however, He learning skill, surgeon. contend, as does making use diligent not in reasonably the defendant was careful per- advising the and in knowledge, ability, skill and in plaintiff forming particular it. In contends: that an pain, symptoms 1. He free from fever or other was necessary. oрeration was not X-ray pictures adequate
2. The was without operation undertaken certainty with sufficient to enable the defendant locate directly exten- approached so and removed without steel that it could be exploratory operation sive and search. operation simple, plaintiff
3. The advised the defendant undisclosed risks. whereas was serious involved undertaken, should determining operation whether the have been experts. opinion must be Expert resort must be had to the evidence of expert plaintiff The offered the evidence of upon knowledge. founded “My X-ray specialists. Dr. Marr field examinations. two testified: try- any major extent . . . specialize practice surgery not in or do very expert ability in the field of ing to this missile calls for remove advisability surgery.” expressed opinion as Dr. Marr praсtice “I it is the usual to remove Jeffreys testified: think they region given that lie in this and have evidence function; I would it within the penetrated tissues of vital consider territory.” territory, or good practice any other surgical realm of in this state, response hypothetical question The witness did to a plain- operate. not to The symptoms absence of would be inclined tiff, expert testimony to his contention the therefore, is without The witness operation not have been undertaken. should good surgical practice. said the is in accord with adequate was undertaken without insists for use He Bradshaw had available photographs. testified Dr. X-rays that at least five introduced evidence and operation, the latter during one other was made the course Jeffreys hypothetical question in evidence. Dr. was asked would be five introduced whether in addition pointing out surgical Witness, after practice. accordance *6 N. 1955. C.] HUNT v. Bkadsi-iaw.
the fact he not have the photograph during operation, did taken the said: “And neck, these show the of in the base of the metal is present; perhaps, that it there is left, view, the other which was not present exhibits, is gives that mentioned the . . . which you might desirable, another dimensional view . . . But that have been I necessary, say but can’t that it was ... would that more viеws, giving anteroposterior planes, location, all as to its location . . . would giving view; might aid in a more . . . concise but it still exactly.” locate it analyzed, nothing When in this is to the statement good surgical practice effect that required X-rays. additional plaintiff’s finding evidence is sufficientto the examination, serious nature. Dr. after Bradshaw, ad- might vised the the get heart, missile move to the sharp-edged piece recommended thе That a of steel does migrate by out plaintiff’s expert evidence, by borne especially Jeffreys. Upon Dr. Bradshaw’s advice the upon. was decided surgeon It patient understandable wanted to reassure the so that togo operating would not room unduly apprehensive. Failure explain involved, therefore, may to the risks be considered mistake on part surgeon, of the but be under facts cannot deemed such want ordinary import liability. of as to care approved
Proof of what is in accord surgical procedure what required of surgeon constitutes standard care of the performing operation, advisability like the an itself, are matters lay not within the of witnesses but must be established qualified experts. When the standards have thus been established, lay testimony may jury be sufficient to enable the to deter- mine whether these standards were ordinary followed with (cid:127)diligence. v. N.C. S.E. Wharton, Smith expert testimony
Plaintiff’s is sufficient justify finding injury damage opera hand and arm resulted from the But, ordinary negligence, tion. as in injury cases the fact that results proof negligent is not the act which caused was a act. The doctrine ipsa loquitur apply cases of this res character. McLeod v. Hicks, 164 S.E. In the McClung, 203 N.C. case Smith v. supra, from Ewing Brogden, quoting Goode, Justice 78 Fed. said: physician “A is not a warrantor of cures. If the ipsa maxim ‘res loquitur’ applicable this, were like a case and a failure were to cure evidence, slight, held to be however negligence part causing bad result, courageous few would be n enough practice art, for healing they would have to assume finan ” liability nearly (cid:127)cial for all the ‘ills that flesh is heir to.’ IN THE SUPREME COURT.
HUNT V. BRADSHAW. course, apparent it seems hard to health that Of undergo upon regaining hе should be con- advised *7 he has use of an arm for the remainder of sciousness finds that lost the Infallibility recog- his life. in human is not The law beings attainable. nizes, properly surgeon’s hand, the with its skill so, and we think that training, all, hand, guided by a a human brain in is, and after human safety danger procedure margin the sometimes in which between and paper. measures little more than the of a sheet of thickness plaintiff’s expert fails lack of that the The cаse because of in use failed, either to due care the to defendant exercise advising Wharton, said v. judgment in it. As was in Smith his best And want of skill guide. “There be no other where and supra, can applied facts, to the by expert is shown evidence attention not thus jury.” proper is submitted to the there no evidence of to be Superior is Court judgment The of nonsuit entered Affirmed. grounded is J., concurring: cause of action Plaintiff’s Bobbitt, two allegations the embrace alleged negligence of defendant. (1) advising negligence performance alleged
elements: performance thereof. alleged negligence in the operation, and that defendant’s fails to show The court holds that was made other- plaintiff undergo that recommendation sound and in the exercise of the wise than faith to skill also fails show great experience recognized surgeon of holdings operation. these With negligence performance agree. alleges that when defendant recommended True, plaintiff represented to him that negligently performed, be defendant danger involved no entailed and “operation simple one which representations said that “but for body” to the health operation.” But submitted said . . . the would were false to knowl- representations allege that said plaintiff did not might nullify his consent to other facts edge of defendant battery, is not for assault short, plaintiff’s action operation. In allegations of an unauthorized predicated upon trespass person, to the battery, i.e., an assault An unauthorized constitutes speaking for the Judge Cordozo, As trespass person. stated being years of adult “Every human Appeals New York: Court what be done with his shall right determine and sound mind has a pa- operation without his who an body; performs own and a damages. he is liable for which assault, an tient’s consent commits N. 525 C.]
State
Owen.
Pratt v.
224
Davis,
300,
(N.S.)
Ill.
562,
609,
79 N.E.
L.R.A.
Ann.
197;
Cas.
Williams,
(N.S.)
Mohr v.
261, 104
12, 1
95 Minn.
N.W.
L.R.A.
439, 111 Am. Rep. 462,
St.
true,
6 Ann. Cas.
This
except
is
cases
emergency
where the
unconscious,
is
and where it
neces
sary
operate
before consent can be obtained.”
v. New
Schloendorff
York Hospital,
125,
(N.S.)
211 N.Y.
505,
N.E.
52 L.R.A.
Ann.
1915C,
Cas.
581. See also,
Parsonnet,
Bennan v.
83 N.J.L.
83 Atl.
948; Moos v. United States,
Supp.
118 F.
Williams,
275. Mohr v.
supra,
quotes
Brown, J.,
Torts,
pa
Kinkead on
sec.
viz.: “The
tient must be the final arbiter as to whether he
take his
will
chances
with the operation, or take his
living
chances of
without it.
is the
Such
right
natural
individual,
recognizes
legal
which the law
as a
one.
Consent, therefore, of an individual,
expressly
must be either
or im
pliedly given
surgeon may
before a
right
operate.”
have the
And
authority
there is
to the effect
perform operation
thаt consent to
*8
not
if
representations
valid
induced
that are false to the
who makes
Siegler,
App.
them. Birnbaum v.
Div.
173;
76 N.Y.S. 2d
Davis, supra;
Pratt v.
Brim,
Wall v.
138 F. 2d
478;
Nolan Kechijian,
866;
75 R.I.
A.
2d
Robinson v. Crot
well,
23;
175 Ala.
57 So. Wall v. Brim,
Whether evidence would be sufficient for submission to the jury bring had he elected to ground action on the of injury resulting from an unauthorized presented for decision on this say, plaintiff record. Sufficeit to bring did not such action. appropriate
It seems that we have before us only plaintiff’s alleged representations. as to the Judgment of involuntary having nonsuit been entered at close of the evidence, the defendant was not heard as to his version of what occurred. v. L.
STATE G. OWEN.
(Filed August, 1955.) Municipal Corporations 37—§ municipality zoning regulations Power to enact and enforce rests exclusively statutory authority. 2. Same— authorizing municipalities zoning regu- The State-wide statutes to enact delegate power heyond municipal corporate
lations 160-172 to zone limits. G.S. through G.S. 160-181.1.