Ballance v. Wentz , 22 N.C. App. 363 ( 1974 )

HEDRICK, Judge.

The single question presented by this appeal is whether the trial court erred in granting defendants’ motions for directed verdicts. Because of the involvement of multiple defendants in this suit, our consideration of the question must necessarily be two-pronged. We shall first discuss the alleged negligence of defendants, Drs. Wentz and Dineen, and conclude with a consideration of the defendant hospital’s alleged negligence.

“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. [Citations omitted.]” Hunt v. Bradshaw, 242 N.C. 517, 521, 88 S.E. 2d 762 (1955).

Plaintiff does not contend that Drs. Wentz and Dineen do not possess the requisite knowledge and skill of others similarly-situated ; however, she does argue that the doctors did not exercise reasonable care and diligence in the application of their knowledge and skill and that they did not use their best judgment in the treatment and care of the minor plaintiff.

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. For this reason, both the court and the jury must usually be dependent on expert testimony to establish the standard of care. Jackson v. Sanitarium, 234 N.C. 222, 67 S.E. 2d 57 (1951). Herein lies the fatal flaw in plaintiff’s case against the defendant doctors. At no point in the record does there appear to be an attempt by plaintiff to establish what constitutes good orthopedic practice in the application, treatment, care, and supervision of the traction. Neither of plaintiff’s medical experts — Dr. Wentz and Dr. Dorman — testified as to the standard of care exercised by other orthopedic doctors in treating patients with similar problems. Thus, the plaintiff having failed to establish by expert testimony the standard of care to be exercised by the defendant doctors, it follows a fortiori that plaintiff has shown no negligence on defendants’ part.

Furthermore, the plaintiff’s contention that the doctrine of res ipsa loquitur applies is without merit, because we do not view this case as one which is susceptible to the application of that doctrine. Although the use of the res ipsa loquitur doctrine in medical malpractice cases has been approved in several decisions of our Supreme Court, see Mitchell v. Saunders, 219 N.C. 178, 13 S.E. 2d 242 (1941) ; Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932), we feel the following statement by Justice Higgins in Watson v. Clutts, 262 N.C. 153, 136 S.E. 2d 617 (1964) is applicable to the case at bar:

“The decisions of this Court generally hold that liability in malpractice cases must be based on proof of actionable negligence. The doctrine [of] res ipsa loqmtur cannot be relied on to supply deficiencies in proof.”

With regard to the hospital’s negligence, we are of the opinion that the plaintiff failed to establish any negligence on the part of the hospital. Again, also the doctrine of res ipsa loquitur has no application.

All parties have devoted a considerable portion of their briefs to arguing their respective contentions as to whether plaintiff’s evidence tends to show that the slipping of the skeletal traction was a proximate cause of any additional injuries suffered by the minor plaintiff. Our decision holding that the evidence fails to disclose any negligence upon the part of any of the defendants with respect to the use of the skeletal traction in treating plaintiff’s injuries makes it unnecessary for us to discuss this aspect of the case.

For the reasons stated, the judgment appealed from is

Affirmed.

Judge Britt concurs. Judge Carson dissents.