Stone v. Proctor

131 S.E.2d 297 (1963)

259 N.C. 633

Dr. Clarence N. STONE v. Dr. Richard Culpepper PROCTOR.

No. 606.

Supreme Court of North Carolina.

June 14, 1963.

*298 Cooke & Cooke, by William Owen Cooke, Greensboro, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice, by Irving E. Carlyle, Winston-Salem, Sapp & Sapp, by Armistead W. Sapp, Greensboro, for defendant-appellee.

*299 HIGGINS, Justice.

"A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. (citing many cases) If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable." Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762.

In this case the plaintiff concedes the defendant possessed the requisite degree of professional learning, skill, and ability properly to diagnose and to treat the plaintiff's ailment. The plaintiff challenges neither the diagnosis made, nor the treatment prescribed. He does allege, however, that the first shock treatment of 130 volts for fourtenths of a second, given on February 10, 1954, caused a compression fracture of his ninth vertebra, producing severe pain which should have, and did, put the defendant on notice that a fracture was probable. Notwithstanding this notice, the defendant continued to administer shock treatments of increased intensity. These successive treatments added to the plaintiff's injury and increased his damages. Disregarding ample notice of a potential fracture, the defendant negligently failed to make proper examination to determine whether a fracture actually existed. In so doing he failed to exercise due care and his best judgment in the treatments which he had undertaken. Jackson v. Mountain Sanitarium, etc., 234 N.C. 222, 67 S.E.2d 57; Gower v. Davidian, 212 N.C. 172, 193 S.E. 28; Nash v. Royster, 189 N.C. 408, 127 S.E. 356.

The defendant's adverse examination tended to show that usual shock treatment consisted of 120 volts for two-tenths of a second to four-tenths of a second. The first treatment administered to the plaintiff was 130 volts for four-tenths of a second; the second was 120 volts for three-tenths of a second; the third was 140 volts for five-tenths of a second; the fourth and fifth were each 150 volts for six-tenths of a second. According to the defendant's own admission, all except the second were in excess of that usually administered. "After each one, he (the plaintiff) complained of this pain in his back. I gave him something to relieve the pain. * * * I never made an X-ray picture of him while he was there."

Defendant was a Fellow in the American Psychiatric Association. He was familiar with its "Standards of Electroshock Treatment," prepared by the Committee on Therapy and approved by the Council of the Association. These "Standards" were "noncontroversial and reflect the consensus of those who practice electroshock therapy." The "Standards" set are the same as those which a practicing physician could observe in his practice in this area. Among the standards appeared the following: "(e) * * * If the patient should complain of pain or impairment of function, he should receive a physical examination, including X-ray, to ascertain whether he suffered accidental damage."

The defendant was familiar with the standards above referred to. They were fixed by the Association to which he belonged and in which he was a Fellow. They applied directly to his specialty and to the safety of patients undergoing shock treatment. His acknowledgment of their authenticity and their applicability to the Winston-Salem area were sufficient to warrant their admission in evidence. 32 C.J.S. Evidence § 625; Sanzari v. Rosenfeld, 34 N.J. 128, 167 A.2d 625; 20 Am.Jur., § 912, p. 769. "The failure of a physician dealing with an injury involving a potential fracture *300 or dislocation to resort to X-ray views in order to determine the existence and nature of such an injury has frequently been noted as supporting, under the evidence in the particular cases, a finding of negligence in the diagnosis." 54 A.L.R.2d, § 9, p. 297; Wilson v. Corbin, 241 Iowa 593, 41 N.W.2d 702.

The defendant has stressfully argued that nonsuit was required for the reason that only the medical evidence of specialists in psychiatry is sufficient to make out a case, and that no specialist in this field was called to testify. Without admitting the soundness of the contention, it overlooks the fact that in this case the "Standards" fixed by the Committee of the American Psychiatric Association with which he was familiar, and which he could have observed, specifically required an X-ray examination in case of pain "to determine whether he has suffered accidental damage." This examination the defendant failed to make. Hazelwood v. Adams, 245 N.C. 398, 95 S.E.2d 917; Pridgen v. Gibson, 194 N.C. 289, 139 S.E. 443, 54 A.L.R. 855.

The evidence offered, in combination with that which was improperly excluded, was sufficient to support these conclusions: The plaintiff suffered injury as a result of the first shock treatment. He made immediate complaint of intense pain in his lower back. The subsequent treatments intensified the pain and aggravated the injury. The defendant knew of the persistent sufferings. In these circumstances the evidence of injury was sufficient to put the defendant on notice of a potential fracture. Notwithstanding this notice which X-ray would evidently have disclosed, the defendant made insufficient effort to discover whether a fracture in fact existed. The "Standards" with which the defendant was familiar and which he could and apparently should have observed, required X-ray investigation. This requirement the defendant failed to observe, although he knew that fractures result in 15 to 30 per cent of the cases in which the treatment is administered. The foregoing are permissible inferences which the jury may or may not draw from the evidence. For the court to draw the inferences would invade the province of the jury.

This case was carefully briefed and ably argued. In this opinion the Court has adhered to its rule that in cases in which nonsuit is reversed, the evidence is recited only to the extent necessary to show the basis for decision. For the reasons discussed, we conclude that the judgment of nonsuit in the court below should be, and is

Reversed.