Wiggins v. Piver

171 S.E.2d 393 (1970)

276 N.C. 134

Anna Belle WIGGINS v. James PIVER.

No. 51.

Supreme Court of North Carolina.

January 6, 1970.

*395 Aycock, Laroque, Allen, Cheek & Hines, by C. B. Aycock, Kinston, for plaintiff.

E. W. Summersill, Jacksonville, and Marshall & Williams, by Alan A. Marshall, Wilmington, for defendant.

HIGGINS, Justice.

The plaintiff seeks to hold the defendant financially responsible for injury and damage she alleges resulted from his negligent surgical treatment. She does not allege a lack of professional learning, skill or ability to perform the operation. Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339; Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565, 21 A.L.R.3d 944; Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861; Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762; Nash v. Royster, 189 N.C. 408, 127 S.E. 356. She does allege, however, the defendant was negligent: (1) By attempting to close incisions of such length (1¼" and 1 ½") by the use in each instance of only two sutures; (2) By drawing the sutures too tightly, thus impeding the flow of blood necessary to heal the incisions and to prevent infection; and (3) By inserting the sutures too far from the edges of the skin, resulting in excessive scarring. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617.

The operative procedures here involved would seem to be as simple and uncomplicated as any cutting operation one may imagine. Reason does not appear to the non-medically oriented mind why there should be any essential differences in the *396 manner of closing an incision, whether performed in Jacksonville, Kinston, Goldsboro, Sanford, Lexington, Reidsville, Elkin, Mt. Airy, or any other similar community in North Carolina.

In this connection, it may be observed that while the defendant was on the stand (as an adverse witness), his own counsel, over objection, was permitted to ask the question and receive the answer here quoted: "State whether or not you followed these procedures, the ordinary and customary and accepted procedures, in such cases. A. Yes, sir. * * * The surgery that I did on Mrs. Wiggins was identical to the surgery that I do daily and prior to her operation I had done daily and since her operation have done daily. This procedure is in accordance with good medical practice. I followed the procedures required by good medical practice. * * *"

The witness' answer as to the ordinary, customary and accepted procedures was not limited to Jacksonville or even to similar areas. However, the defendant, by successful objection, excluded testimony of Dr. Howell because he was not familiar with Jacksonville.

Unless the trial court committed error in excluding the testimony of Dr. Howell, the judgment of nonsuit should be sustained. The picture changes, however, if Dr. Howell's testimony is added to the other evidence. Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548. Hence, the admissibility of Dr. Howell's testimony is crucial and determinative of this appeal.

The question of law presented simply stated is this: Was Dr. Howell's testimony on a simple operative procedure (closing shallow incisions after removing a small amount of tissue) rendered incompetent because he was not familiar with the practice in Jacksonville. He did have knowledge of these procedures in similar localities around Winston-Salem. The trial court excluded the testimony, adhering strictly to the "locality rule".

Our cases hold that a physician or surgeon must "possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess". The rule stated refers to the minimum qualifications a physician or surgeon must have in order to qualify him to render personal services in his field. The cases further hold that even though the physician or surgeon possess the qualifications, he still must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case. Starnes v. Taylor, supra, and cases therein cited.

The "locality rule" (never recognized in England) had its origin in the very old and far away days when there were many little institutions which called themselves medical schools. Students were admitted who could show a high school diploma or funish a certificate from a school principal that the bearer had completed the "equivalent" of a high school course of study. At the end of the course, he was given an M.D. degree. Passing the licensing board was in the nature of a formality. In many rural communities, ever thereafter the doctor was on his own. Frequent refresher courses, now generally attended, were unknown. The practice in the earlier days is described in the concurring opinion in Sims v. Charlotte Liberty Mutual Ins. Co., 257 N.C. 32, 125 S.E.2d 326.

Now medical schools admit only college graduates. They are equipped to the highest point of efficiency and turn out doctors who must continue their studies by internships and by actual experience under expert supervision. They continue to study, continue to attend refresher courses, and have access to journals which afford them opportunity to keep them current in the latest treatments and procedures.

In the old days, there was some reason for the "locality rule" as the standard by which to judge a doctor's procedures. Then, except for a few stops on the railroads, the quickest mode of travel was by "coach and four". Forty miles between sun up and sun down was a full day's travel *397 less than 50 minutes will suffice today. A doctor's practice was limited to a small area. Because of the vast changes, some of which are touched on here, the reason for the "locality rule" has ceased to exist. Objections to the rule are being made from all sides. Here is a quotation from Prosser on Torts, 3d Ed., Negligence, Standard of Conduct, p. 166 (citing many cases):

"Allowance also has been made for the type of community in which the physician carries on his practice, and for the fact, for example, that a country doctor cannot be expected to have the equipment, facilities, libraries, contacts, opportunities for learning, or experience afforded by large cities. The older decisions sometimes stated this as a standard of the `same locality;' but this is now quite generally recognized as too narrow. Later cases expanded it to speak of `the same or similar localities,' thus including other towns of the same general type. The present tendency is to abandon any such formula, and treat the size and character of the community, in instructing the jury, as merely one factor to be taken into account in applying the general professional standard."

The following is from N.C.L.Rev., Vol. 46, April, 1968: "Most courts have realized that the `same' locality is too narrow, and have extended the rule to include `same or similar' localities." (Citing many cases) Northwestern L.Rev., Vol. 60, 1965-66, speaking of the "locality rule" says: "* * * Even at its inception, some courts rejected this strict application of the locality rule and held that the underlying policy would still be observed if a doctor from a similar community could testify as to the proper standard of care. The insurmountable handicap which confronted a plaintiff in a community with only one doctor was an important factor in early rejection of the strict rule. * * * Most courts which originally embraced the same locality principle have not abandoned it in favor of the similar locality view." (Citing many cases) Stanford L.Rev., Vol. 14, Dec. 1961July 1962, says: "* * * In recent years changes in the rural-urban population pattern of the country and changes in medical education, training, and communication have led to greater standardization of medical practices. Thus, even in cases involving the general practice of medicine, many courts adhering to the `same locality' rule have extended the geographical area within the defined locality; other courts have adopted a `similar locality' rule; and others have adopted a standard of reasonable care under the circumstances, with defendant's locality as one of the circumstances. * * *" (Citing many cases)

The purpose of the foregoing citations is two-fold: (1) To disclose the reason for the "same locality" rule; and (2) To demonstrate that under modern conditions the rule has lost all potency. Rules of evidence are creatures of experience and are never frozen. Experiences and conditions change and consequently require changes in the practical methods of dealing with them, even in the courts. Usually changes are gradual and amendments and exceptions to rules take care of them.

The idea of changes to meet changed conditions is not new in this Court. On April 4, 1905, Justice Connor, in Firemen's Ins. Co. v. Seaboard Air Line Railroad, 138 N.C. 42, 50 S.E. 452 (original 33 Reprint) discussed the subject:

"* * * The question is of first impression in this state. We have given it careful and anxious consideration, desiring to make no departure from the well-settled principles of the law of evidence or the decisions of this court, at the same time recognizing and keeping in view the duty of the court to make diligent effort to find in those general principles such safe and reasonable adaptability that in the changing conditions of social, commercial, and industrial life there may be no wide divergence in the decisions from the standards by which men are guided and controlled in important *398 practical affairs. The law of evidence, based upon certain more or less well-defined general rules evolved from experience, has been molded by judicial decision and legislative enactment into a system having for its end and purpose, and believed to be adapted to, the discovery of truth in judicial proceedings. * * *"

We now hold the trial court committed error in excluding the testimony of Dr. Howell and consequently in entering the judgment of nonsuit. The judgment is set aside. The case is remanded to the Superior Court of Onslow County for jury trial.

Reversed and remanded.