Applying the well settled rule uniformly enforced in this jurisdiction with respect to the-consideration of the evidence on a motion
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for judgment as of nonsuit, made as provided by C. S., 567
(Goss v. Williams,
Conceding, but not deciding, tbat there was evidence fending to show tbat defendant was negligent as alleged in tbe complaint, in tbat be failed to exercise due care to make an adequate examination of bis patient before tbe operation, or in tbat be left bis patient, even temporarily, after tbe operation and before she bad recovered from tbe effects of tbe ansesthetic and from tbe shock incident to tbe operation, without exercising due care to provide a competent nurse for her, we fail to find, after a most careful consideration of all tbe evidence, induced by sympathy for tbe plaintiff in tbe loss which has befallen him by tbe untimely death of bis young wife, any evidence legally sufficient to show a causal relation between tbe acts of tbe defendant, either of commission or of omission, and tbe death of plaintiff’s intestate. Tbe evidence tending to show tbat bis patient died within an hour after tbe operation, which be bad performed on her, and before she bad recovered from tbe effects of tbe ansesthetic administered to her under bis direction, or from tbe shock incident to tbe operation, does not show tbat her death was caused by any breach of duty which be owed her, as her physician. Tbe burden was on tbe plaintiff to show by evidence, not only tbat defendant was negligent as alleged in bis complaint, but also tbat bis negligence was tbe direct and proximate cause of her death. Accepting tbe testimony of all tbe witnesses as true, and conceding tbat tbe weight of tbe evidence is a matter for tbe jury and. not for tbe court, this evidence was not of such character as reasonably to warrant tbe inference of all tbe facts which plaintiff bad alleged in bis complaint as constituting bis cause of action against tbe defendant. Under tbe .law as declared by this Court, it is not sufficient tbat tbe evidence raises merely a surmise or conjecture tbat tbe facts may be as plaintiff has alleged in bis complaint. Unless tbe evidence tends reasonably to show all tbe facts to be as plaintiff has alleged in bis complaint, as essential to bis right to recover in tbe action, it should not be submitted to tbe
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jury. In that ease, tbe action should be dismissed, on a motion made in accordance with the provisions of C. S., 567. In
Byrd, v. Express Co.,
"We do not decide the question discussed in the briefs filed in this Court, as to whether in the absence of testimony of expert witnesses tending to show that defendant, a physician and surgeon, failed to exercise the care ordinarily required of men of his profession, with respect to patients, under circumstances similar to those in the instant case, plaintiff was not entitled to recover in this action, for that there was no evidence from which the jury could find that he was negligent. This question does not necessarily arise on this appeal, and does not seem to have been presented heretofore to this Court. The decisions of other courts are not uniform. "We do not deem it wise to discuss or to decide the question until it shall be necessary for us to do so.
We
have had occasion recently in
Nash v. Royster,
“In many cases, expert evidence, though all tending one way, is not conclusive upon the court and jury, but the latter, as men of affairs, may draw their own inferences from the facts, and accept or reject the statements of experts; but such cases are where the subject of discussion is on the border line between the domain of general and expert know *251 ledge, as, for instance, where the value of land is involved, or where the value of professional services is in dispute. There the mode of reaching conclusions from the facts when stated is not so different from the inferences of common knowledge that expert testimony can be anything more than a mere guide. But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury.”
In the instant case, the judgment dismissing the action as upon non-suit, is affirmed for the reason that there was no evidence from which the jury could have found that the negligence of defendant as alleged in the complaint, was the direct and proximate cause of the death of plaintiff’s intestate. It does not appear that if defendant, another physician or a competent nurse had been with her, she would not have died, nor does it appear that her death was the result of her condition prior to the operation which could have been discovered by any examination which it was the duty of the defendant to make. A physician and surgeon is not an insurer of the life of his patient; even where he has failed to exercise due care in the treatment of his patient, or in the performance of an operation, he cannot be held liable for the death of his patient, in the absence of evidence legally sufficient to show that his negligence was the cause of the death.
Affirmed.