Williams v. Reynolds , 45 N.C. App. 655 ( 1980 )

263 S.E.2d 853 (1980)

J. Crawford WILLIAMS
v.
James L. REYNOLDS, D. V. M.

No. 7910SC674.

Court of Appeals of North Carolina.

March 18, 1980.

Reynolds & Howard by Ted R. Reynolds and E. Cader Howard, Raleigh, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson, Raleigh, for defendant-appellee.

HEDRICK, Judge.

Medical practitioners in North Carolina "must possess the degree of learning, skill and ability which others similarly situated ordinarily possess." Dickens v. Everhart, 284 N.C. 95, 101, 199 S.E.2d 440, 443 (1973) [emphasis in original]. See also Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393 (1970). What "similarly situated" means is not defined with precision. It envisions a standard of professional competence and care customary in the field of practice among practitioners in similar communities which, in turn, suggests a consideration of such factors as the nature of the treatment involved; the degree of specialization, if any, required; the character of the community concerned; and the comparability of medical facilities available. What the standard permits is an otherwise qualified expert witness to state an opinion as to whether the treatment prescribed by the defendant in the particular case accords with the standard prevailing in similar communities with which the witness is familiar, "even though the witness be not actually acquainted with actual medical practices in the particular community in which the service was rendered at the time it was performed." Dickens v. Everhart, supra, 284 N.C. at 101, 199 S.E.2d at 443. Thus, in Dickens, a physician who was practicing in Riverside, California at the time of the alleged malpractice by a physician in Mount Airy, North Carolina, was held competent to testify as to the standard of care required and the accepted medical practice prevailing in a community similar to Mount Airy. In Wiggins v. Piver, supra, plaintiff called as her witness a doctor from Winston-Salem to testify as to accepted medical practice in Jacksonville, North Carolina. The witness stated that he was not familiar with the actual practice in Jacksonville, but that he was familiar with the approved practice in similar communities around Winston-Salem. In holding that his testimony was competent, our Supreme Court, through Justice Higgins, quoted approvingly from Prosser on Torts: "The present tendency is to . . . 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." Wiggins v. Piver, supra, 276 N.C. at 140, 171 S.E.2d at 397.

While the trial judge in the case now before us appears to have been thoroughly familiar with the rule of law as laid down in Wiggins, he nevertheless refused to permit Dr. Ashby to testify that he was familiar, in October and November of 1975, with the accepted medical practices respecting the treatment of a horse that has just been castrated in communities similar to Wake County. The judge sustained defendant's objections to every question designed to elicit Dr. Ashby's familiarity with and knowledge of the prevailing standards. Thereafter, he granted the defendant's motion for a directed verdict, apparently accepting defendant's argument "that the plaintiffs [sic] have presented insufficient evidence of actionable negligence on the part of the defendant for the case to be considered by the jury, . . ."

The situation changes, however, when the excluded testimony of Dr. Ashby is considered. From the record it appears that, had he been permitted, Dr. Ashby would have testified that he is familiar with the accepted standards of practice for veterinarians "in communities similarly situated with the community of Wake County, North Carolina, as those practices were carried on during October and November, 1975"; that the procedures of veterinary medicine he followed before coming to North Carolina and those he has followed since coming do not differ in any way; that he did nothing different in performing a castration operation on a horse in Illinois or Indiana than he would do in North Carolina [see Rucker v. High Point Memorial Hospital, Inc., 285 N.C. 519, 206 S.E.2d 196 (1974)]; and that he knows of his "own knowledge" what the accepted practices of veterinary medicine were within Wake County and the surrounding area at the time of the alleged negligent treatment administered to plaintiff's horse by defendant. He would have testified further that, in his opinion, the procedures employed by defendant to treat the horse following the castration operation "would have been contrary to acceptable medical practice standards in Wake County" for the reason that, if exercise had not reduced the swelling within 24 hours, according to Dr. Ashby, "therapeutic levels of antibiotics. . . and also therapeutic levels of corticosteroids" should have been administered. Dr. Ashby's testimony would render plaintiff's evidence sufficient to raise an issue of actionable negligence for the jury to resolve and, thus, the granting of a directed verdict for defendant would be error.

We think the judge did err in excluding the testimony. We are not dealing in this case with a complicated, novel or rare medical procedure, but rather with an operation commonly and routinely performed on certain male animals, especially riding and show horses. The Court's observations in Wiggins, supra, 276 N.C. at 138, 171 S.E.2d at 395-96 are, we think, equally applicable in this case: "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 manner of" castrating a horse.

Furthermore, to say that this veterinarian, who is otherwise qualified as an expert with a "horse specialty," cannot testify as to the accepted medical standards prevailing in Wake County during October and November 1975, simply because he did not begin practicing here until two months later, is fatuous. The fact that he was not actually practicing in Wake County at the actual time of treatment is merely a factor for the jury to consider in deciding what weight it will give to his testimony. Wiggins v. Piver, supra.

We hold that the trial court erred in excluding the testimony of Dr. Ashby and consequently in granting the defendant's motion for a directed verdict. The judgment entered thereon is reversed, and the matter is remanded to the Superior Court.

Reversed and remanded.

VAUGHN and CLARK, JJ., concur.