Ballance v. Wentz

Judge Carson

dissenting:

While the majority opinion correctly states the general proposition that the standard of care required of a physician or surgeon is a matter involving highly specialized knowledge with respect to which a layman can have no reliable information, and that the court and jury are usually dependent on expert testimony to establish the standard of care, there is a well recognized exception to the general rule which is more applicable to the facts in question. That is, where the lack of reasonable care and diligence in the treatment of the patient is so patent that only common knowledge and experience are required to understand and judge the action of the defendant. Hawkins v. McCain, 239 N.C. 160, 79 S.E. 2d 493 (1954) ; Wilson v. Hospital, 232 N.C. 362, 61 S.E. 2d 102 (1950). In those cases the jury is able to understand and apply the standard of the reasonable prudent man without the necessity of specialized medical knowledge.

The majority opinion cites the case of Jackson v. Sanitarium to support its position that expert testimony must be used to establish the standard of care. While the Jackson case discusses the general principle as applied by the majority, the actual hold*370ing is to the contrary. In writing the majority opinion, Justice Barnhill held at pp. 226-227,

It is true it has been said that no verdict affirming malpractice can be rendered in any case without the support of medical opinion. If this doctrine is to be interpreted to mean that in no case can the failure of a physician or surgeon to exercise ordinary care in the treatment of his patient, or proximate cause, be established except by the testimony of expert witnesses, then it has been expressly rejected in this jurisdiction. (Citations omitted.)
Rightly interpreted and applied, the doctrine is sound. Opinion evidence must be founded on expert knowledge. Usually, what is the standard of care required of a physician or surgeon is one concerning highly specialized knowledge with respect to which a layman can have no reliable information. As to this, both the court and jury must be de-pendant on expert testimony. Ordinarily there can be no other guide. For that reason, in many instances proximate cause can be established only through the medium of expert testimony. There are others, however, where non-expert jurors of ordinary intelligence may draw their own inferences from the facts and circumstances shown in evidence. (Citations omitted.) (Emphasis added.)

Here, despite the plaintiff’s complaint that the traction on her arm was slipping, it was allowed to give way completely and fall with sharp force. It does not take specialized medical knowledge to understand that traction, if applied, must be applied in such a manner that it does not fall. Occurrences of this nature are similar to those found in the case of Norris v. Hospital, 21 N.C. App. 623, 205 S.E. 2d 345 (1974), where the failure of the hospital to raise the bed railings at night for an elderly patient was held to present a jury question without expert testimony. I think that the negligence of the attending physicians and the hospital, through its agent, the nurse, was a jury question and should have been presented to the jury.

Since the majority opinion does not discuss the proximate cause aspect of this matter, I will not discuss it either. Suffice it to say that I believe that there was sufficient evidence of proximate cause to raise a question for the jury, and the directed verdict against the plaintiff should not have been entered.