Louise L. LENTZ
v.
Dr. Frank A. THOMPSON, Jr.
No. 624.
Supreme Court of North Carolina.
January 20, 1967.*109 D. D. Smith, G. Hobart Morton, Albemarle, Robert L. Warren, Concord, for plaintiff appellant.
Carpenter, Webb & Golding, Charlotte, for defendant appellee.
HIGGINS, Justice.
In passing on the sufficiency of the evidence to go to the jury, we must assume *110 that Dr. Thompson severed the plaintiff's spinal accessory nerve during the operation for the removal of the malignant glands. The evidence permits that finding. Something more is necessary, however, to establish the defendant's civil liability. All the experts who testified in the case for both parties emphasized the necessity of protecting the covering or shell over the diseased nodes during the removal in order to prevent the spread of infection which a break or leak in the covering would permit. In the removal procedure, therefore, the intact separation of the node from its surroundings required the pressure to be applied on the surroundings rather than on the body of the node. According to the evidence the surroundings consist of tissues and muscles, and fatty substances which are interlined with blood vessels. These must be cut and sutured. According to the defendant's expert, Dr. Heinig, in performing the biopsy there is "an inherent risk of injury to or severance of the accessory nerve when the operation is performed in accordance with approved medical and surgical procedures."
In order to warrant a jury in finding liability on the part of the surgeon, negligence must be established by the evidence. In order to escape nonsuit, evidence sufficient to permit a legitimate inference of facts constituting negligence must be offered. Nash v. Royster, 189 N.C. 408, 127 S.E. 356. Ordinarily, the Court must determine as a matter of law whether the evidence in its light most favorable to the plaintiff is sufficient to permit legitimate inference of the facts necessary to be proved in order to establish actionable negligence. H. F. Mitchell Construction Co. v. Orange County Board of Education, 262 N.C. 295, 136 S.E.2d 635. "It is the duty of the court to allow the motion (nonsuit) in either of two events: first, when all of the evidence fails to establish a right of action on the part of the plaintiff; second, when it affirmatively appears from the evidence as a matter of law that plaintiff is not entitled to recover." Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234; Walker v. Story, 256 N.C. 453, 124 S.E.2d 113. However, as stated by Barnhill, C. J., in Kennedy v. Parrott, 243 N.C. 355, 90 S.E.2d 754, 56 A.L.R.2d 686, "[W]here the conduct relied on rests upon judgment, opinion, or theory, such as in case of a surgeon performing an operation, the ordinary rules for determining negligence do not prevail. The reason is that when one who possesses the requisite skill and ability acts according to his best judgment and in a careful and prudent manner, he is not chargeable with negligence. Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762, and cases cited, Jackovach v. Yocom, 212 Iowa 914, 237 N.W. 444, 76 A.L.R. 551, and authorities cited. See also, Annotations 26 A.L.R. 1036; 53 A.L.R. 1056, and 129 A.L.R. 1370. Furthermore, proof of error of judgment and nothing more will not suffice."
In Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861, Lake, J., for the Court, said: "The duty which a physician or surgeon owes his patient is determined by the contract by which his services are engaged. Nash v. Royster, 189 N.C. 408, 127 S.E. 356. Ordinarily, he is not an insurer of the success of his treatment or of an operation upon the patient and, in the absence of proof of his negligence in the treatment of the patient, or of his failure to possess that degree of professional knowledge and skill ordinarily had by those who practice that branch of the medical art or science which he holds himself out to practice, he is not liable in damages even though the patient does not survive the treatment or emerges from it in worse condition than before."
In the instant case the family physician had the plaintiff admitted to the hospital "on my own service," for the purpose of having the enlarged glands removed. He selected Dr. Thompson to perform the surgery. The plaintiff approved the selection. Dr. Barringer testified he wanted the surgeon to "physically remove the nodes so that the pathologist could help me make a *111 diagnosis. That is all I wanted the surgeon to do."
All the evidence shows the defendant is a very able, careful and meticulous surgeon. The pathologist testified: "These were intact nodes, perfectly removed." In this situation the evidence fails to show the surgeon is liable for the unfortunate result. Galloway v. Lawrence, supra; Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617; Hunt v. Bradshaw, supra; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493; Wilson v. Martin Memorial Hospital, 232 N.C. 362, 61 S.E.2d 102; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480. The evidence failed to measure up to the standards required by our decisions. The judgment of the Superior Court is
Affirmed.