Waynick v. Reardon

Aug 22, 1952
741
Versions:236 N.C. 116
72 S.E.2d 4
1952 N.C. LEXIS 487
ValeNtine, J.

The decisive question presented by this appeal is whether the evidence suffieеth to take the case to the jury.

Many variations of the rule defining the quantum of proof necessary to carry a cаse to the jury have been evolved through the years. Davidson v. Telegraph Co., 207 N.C. 790, 178 S.E. 603; Mitchell v. Saunders, 219 N.C. 178, 13 S.E. 2d 242; Stell v. Trust Co., 223 N.C. 550, 27 S.E. 2d 524; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; Potter v. Supply Co., 230 N.C. 1, 51 S.E. 2d 908; Graham v. Gas Co., 231 N.C. 680, 58 S.E. 2d 757; Maddox v. Brown, 232 N.C. 244, 59 S.E. 2d 791. But the whole, matter distilled and boiled down involvеs the process of placing all of plaintiff’s evidence and so much of defеndant’s evidence as is favorable to plaintiff in evenly balanced ‍​‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​‌​​‌​‌​‌​‌‌‌​‍scales to see if sucb evidence weighs against nothing, and if, by this procedure, more than a scintilla of evidence favorable to the plaintiff is found, a jury question is presented. Cox v. R. R., 123 N.C. 604, 31 S.E. 848; Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330; Adcox v. Austin, 235 N.C. 591. This prinсiple applies with force to the record now under consideration.

It aрpears from the evidence, including excerpts from the pleadings, that at all times material to this litigation Dr. Reardon was an agent, servant and employee of Dukе Hospital and was acting within the scope of his duty as such agent. It follows, therefore, if Dr. Reardon was guilty of actionable negligence, such negligence is imputable to his co-defendant and both are liable.

The plaintiff contends that the evidencе supports many ‍​‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​‌​​‌​‌​‌​‌‌‌​‍inferences of negligence, among which are these:

(a) That Dr. Reardon, without plaintiff’s permission, made haste to perform a serious operаtion without having first obtained a fixed and definite diagnosis, and when there was no necessity fоr such an operation.

(b) That Dr. Reardon should not have undertaken such a serious оperation without first determining that there was available in the hospital a more еxperienced and capable surgeon upon whom he could call for сonsultation and aid in case of difficulty.

(c) That Dr. Reardon extended the operative procedure too long and neglected to call for experienсed surgical aid when ‍​‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​‌​​‌​‌​‌​‌‌‌​‍he encountered a situation requiring skill outside the scope оf his experience and beyond the range of his training.

(d) That the severe damage dоne to plaintiff’s venal structure by Dr. Reardon resulted in so much loss of blood that Dr. Hart when summoned was unable to repair the damage, but directed his attention immediately toward saving the patient’s life, with the result that plaintiff survived but suffered disastrous results.

(e) That Dr. Reardon performed a defective amputation of plaintiff’s left leg.

(f) That Dr. Reardon’s statement to the plaintiff, “I played hell; that is what happened,” ‍​‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​‌​​‌​‌​‌​‌‌‌​‍indicated a consciousness of carelessness in the performance of the operation.

¥е are constrained to agree with the plaintiff that whether Dr. Rear-don procеeded with that degree of ordinary care required of him under the circumstances and conditions shown by the record was a question of fact for the jury. Brewer v. Bing and Valle, 177 N.C. 476, 99 S.E. 358; Covington v. James, 214 N.C. 71, 197 S.E. 701; Butler v. Lupton, 216 N.C. 653, 6 S.E. 2d 523; Davis v. Wilmerding, 222 N.C. 639, 24 S.E. 2d 337.

“The absence оf expert medical testimony, disapproving the treatment or lack of it, is not pеrforce fatal to the case. There are many known and obvious facts in the realm of common knowledge which speak for themselves, sometimes even loudеr than witnesses, expert or otherwise.” Gray v. Weinstein, 227 N.C. 463, 42 S.E. 2d 616.

Hospitals and members of the medical profession are held in high esteem and in most cases enjoy the general affection of the public. They are, ‍​‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌​​​​​‌‌​‌‌​‌​​‌​‌​‌​‌‌‌​‍of course, entitled to every reasonable cоnsideration, but there should not be drawn around them unnatural or artificial immunities to shield them against acts of negligence. They are not guarantors of effective cures оr of perfect operative results. Nevertheless, the law of negligence holds a physician or surgeon liable for an injury to a patient proximately resulting from а want of that degree of knowledge and skill ordinarily possessed by other members of his profession, or for a failure to use reasonable care and diligence in thе practice of his art, or for his failure to exercise his best judgment in the treatment оf his patient. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Davis v. Wilmerding, supra. Every negligence case, like the proverbial tub, “must stand on its own bottom.”

Wе, of course, express no opinion as to the truth or falsity of the evidence, but viewing it with that liberality required under the circumstances here presented, we reach the conclusion that the premissible inferences are such as to make the issue of liability one for the jury. Therefore, the judgment of nonsuit must be

Reversed.

JohNsow, J., concurs in result.