#### A. B. COVINGTON v. DR. W. D. JAMES and HAMLET HOSPITAL.

(Filed 22 June, 1938.)

1. Physicians and Surgeons § 15e — Evidence held sufficient to overrule nonsuit in this action against physician for malpractice.

Plaintiff’s evidence tended to show that he was taken unconscious to a hospital after an accident which broke the small bone in his leg between the knee and the ankle, that while unconscious a cast was put on his leg, that later he was anaesthetized and the larger bone broken and the bones reset, that for seven days after the cast was put on his leg the attendant physician failed to give him further attention and that during this time his leg swelled up and burst and abscesses formed, and that when discharged from the hospital the foot on the injured leg was turned inward at nearly a right angle, so that plaintiff could not walk. SelH: The granting of defendant’s motion to nonsuit at the close of plaintiff’s evidence was error, plaintiff’s injury being simple in its nature and the results shown by the evidence being so grotesquely contrary to all human experience as to afford some evidence for the jury that the bones were never properly set or were permitted to grow out of their proper relation through want of due care and attention.

2. Same: Negligence § 19c — Res ipsa loquitur' may apply when matter is not highly technical and result is contrary to human experience.

The doctrine of res ipsa loquitur in malpractice cases is not limited to instances in which foreign substances are left in the body after an operation, but the doctrine may be applied when the original conditions are known and the matter does not fall within the range of highly scientific and technical knowledge, and a result is shown which is grotesquely contrary to all human experience.

3. Physicians and Surgeons § 15a—

A physician or surgeon is not a guarantor of the result of treatment.

4. Trial § 22b—

Upon motion to nonsuit, the evidence must be considered in the light most favorable to plaintiff and assumed to be true.

Stacy, J., concurring in part.

Winbobne, J., concurs in concurring opinion.

*72Appeal by plaintiff from Phillips, J., at February Term, 1938, of RichmoNd.

Reversed.

Tbis was a civil action brought by the plaintiff to recover damages for an alleged injury caused by the negligence of the defendants in not using due skill and care in his treatment while a patient in the Hamlet Hospital.

In his complaint plaintiff alleged, in substance, that he had a small bone in his left leg broken between the knee and ankle, and entered the hospital and was accepted for treatment; that he employed the defendant Dr. ~W. D. James “as surgeon and physician, to dress, heal, and cure said injured leg,” and that Dr. James undertook the treatment; that his leg was placed in a cast after examination and diagnosis; but that the defendant James negligently, carelessly, and unskillfully performed the examination and diagnosis, and did not use proper skill in the treatment and care of plaintiff’s injury; carelessly and negligently failing to treat the dislocation of the bone and to properly set it, so that the bone refused to heal and became permanently dislocated. Plaintiff further complained that at the time he placed himself under Dr. James for treatment only the small bone in his leg was broken, and that the defendant negligently broke the large bone and attempted to set it, but negligently failed to properly do so, so that the leg is now crooked and deformed, the bones of the leg never having been placed together. He claims that he remained in the hospital seventy days for treatment, and, after five weeks at home, went back to the hospital on crutches; that his leg is warped and crooked and he is unable to walk on that foot, because while he is standing up the foot on the left leg — the injured member — points inward to such an extent that it catches behind his right leg, and that he has virtually lost the use of that leg and has become a cripple.

He further complains that he was cut and seriously injured by faulty equipment used while he was confined to bed.

There is a further allegation that the negligent and unskillful manner in which his injury was treated caused the glands in his leg to swell up, abscess, and burst. There follow the usual allegations of physical suffering, mental anguish, and permanent injury.

The defendants, answering, deny these allegations, and in a further defense set up that the plaintiff’s condition, if he suffers from any injury at all, came about through his own carelessness and negligence in refusing to follow instructions given to him at the time he left the hospital.

Upon the trial the case, in the main, was presented in the plaintiff’s own testimony and the exhibition of the injured member'. There was corroboration in some material parts, to which it is needless here to refer.

The evidence was substantially along the line of the pleading. Plaintiff testified that he was fifty-four years of age and a cotton mill worker; that he was struck from the rear by the fender of an automobile on the *73back of tbe left leg, just below tbe knee; tbat be was unconscious wben be was taken to tbe hospital, but woke up next morning, finding bis leg burt and in a “short cast”; tbat be bad a conversation with Dr. James, who told him tbat be bad a small fracture of tbe leg.

According to bis narrative, after be' was carried from tbe operating room be stayed in tbe room to which be was carried from.5 December to 29 December, when X-ray pictures were again made of tbe injured member. When carried back to bis room, be stayed there tbat night without a cast on tbe leg, and was again taken to tbe operating room, and there Dr. James told him tbat tbe fracture was not set and knitting like it ought to; tbat be would have to put plaintiff to sleep and reset it.

Plaintiff’s leg swelled up so tbat be could not move it, abscessed, and burst. He called bis condition to tbe attention of Dr. James, who promised to come back in tbe room in a few minutes, but did not return for seven days.

Plaintiff gave further details as to bis treatment in tbe hospital along tbe same line.

He testified tbat be saw Dr. James on 6 March and tbat tbe doctor told him bis leg was not broken wben be went to tbe hospital; tbat be, tbe doctor, bad broken it and did not know why be did so, but promised to take him to a specialist to have some treatment.

Plaintiff exhibited bis leg to tbe jury and gave testimony as to its condition, stating tbat tbe left foot would not pass tbe right foot in walking, because of tbe extent to which it was turned inward.

There was other evidence of a similar character, to which we need not advert. There was no evidence for defendants. Upon motion of tbe defendants’ counsel, tbe court below rendered a judgment as of nonsuit and tbe plaintiff appealed.

J. C. Pittman and Id. F. Seawell, Jr., for plaintiff, appellant.

Sapp & Sapp and Fred W. Bynum for defendants, appellees.

Seawell, J.

Tbe court below allowed defendant’s motion to nonsuit upon tbe theory tbat in tbe absence of expert testimony tbe evidence, serious as it is, is not sufficient to go to tbe jury on tbe issue of defendant’s failure to exercise due skill and care in bis treatment of plaintiff.

We are urged to adopt tbe view tbat recovery cannot be bad in any suit against a physician or surgeon for malpractice in tbe absence of expert medical testimony, except where tbe facts give rise to tbe application of tbe doctrine res ipsa loquitur. Pendergraft v. Royster, 203 N. C., 384; Ferguson v. Glenn, 201 N. C., 128; Nash v. Royster, 189 N. C., 408; and Connor v. Hayworth, 206 N. C., 721, are amongst tbe authorities cited in defendant’s brief in support of this position.

*74It is further contended that the doctrine res ipsa loquitur applies only in instances where foreign substances, such as sponges, towels, needles, glass, etc., are introduced into the patient’s body and left there.

In the case at bar, are the facts of the testimony competent to go to the jury without explanation by medical expert, either in their simple character as evidence, or as raising the doctrine res ipsa loquitur?

In the present case there are three outstanding phases of the evidence which may be discussed in this connection :

(a) The plaintiff testified that he was admitted to the hospital with a simple fracture of the small bone of the lower left leg; that he was unconscious when he was admitted to the hospital; that while he was unconscious a cast was put upon this leg, and later he was carried to the operating room, anaesthetized, and the bone reset; that the defendant later admitted that he had at this time broken the larger bone of the leg without knowing why.

(b) He testified that after the cast was put upon his leg, the defendant failed to give him further attention and did not see him for seven days. During this time his leg swelled up and burst and abscesses formed upon it and in the groin and burst.

(c) He further testified that when discharged from the hospital plaintiff’s foot was turned inwardly at nearly a right angle to the line of advance in walking, and had to be swung out and around to get it from behind the other foot.

We are unwilling to decide that the doctrine of res ipsa loquitur as an instrument of proof in malpractice cases applies only where foreign substances have been introduced into the body during an operation and left there, although such instances are often used by way of illustration. With reference to the rule requiring expert medical testimony under certain conditions, the Court, in Pendergraft v. Royster, supra, adopts the following: “There is, however, a well recognized exception to the above rules, ‘where there is manifest such obvious gross want of care and skill as to afford, of itself, an almost conclusive inference’ of negligence (Simak v. Foster, 106 Conn., 366; Donahoo v. Lovas, 288 Pac., 698). In such cases, neither affirmative proof of negligence, nor expert testimony as to want of skill, need be given by the plaintiff. This presumption of negligence from certain proven facts, otherwise known as the doctrine of res ipsa loquitur, has been frequently applied, in actions for malpractice, to cases where the surgeon has left a foreign substance, such as sponges or gauze, in the patient’s body after an operation.”

This further quotation is made from Sherman and Redfield on Negligence, section 59 : “The maxim res ipsa loquitur applies in many cases, for the affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought *75into view, by showing bow the accident occurred, contain without further proof sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer.”

Without the application of that doctrine to the incident of breaking plaintiff’s leg during the course of the operation, it is sufficient to say that the evidence, especially in view of the admission of the defendant, and taken in connection with the result produced, is sufficient to carry the case to the jury.

"Bes ipsa loquitur” — if we may use the phrase to represent the doctrine — is itself a mere mode of proof. After rebutting testimony is offered, it is still evidence to be reckoned with by the jury, just as any other evidence, according to its probative force. Frequently, evidence which is not attended with any technical presumption is more cogent.

We cannot accept the sweeping conclusion that no evidence except that presented in the guise of res ipsa loquitur is competent for the jury, in the absence of expert medical testimony. Such a ruling is neither justified by the present condition of medical and surgical science and practice, high as the standards are, nor is it consistent with the facts of common knowledge, experience, and ordinary intelligence. It would expropriate to the medical or surgical expert the entire field of human knowledge on a subject, some phases of which, at least, are sufficiently simple to be well understood and intelligently discussed by men and women in everyday life.

No doubt there are many instances in which the disease or injury involved, and its commendable treatment, belong to a high order of scientific and technical knowledge where expert medical testimony may be essential. Rut, does it require a medical expert to know that it is not always, at least, necessary to break the large bone of the leg in order to set the small bone? Does it take an expert to understand that seven days inattention, during which patient’s leg swelled up and burst, indicates a want of the application of due skill and care ?

The evidence of neglect of the patient for the prolonged period of seven days, while under the care of the defendant, and the attendant evidence of what took place during that time stands upon its own peculiar ground. There was no treatment involved in this upon which an expert witness might be called to pass. There was an utter want of the treatment — the failure to apply the due skill and care which the defendant under the law was bound to give; and this could be shown by the patient, a nonexpert witness.

We have left to consider the condition of the plaintiff’s leg when discharged from the hospital and when exhibited to the jury. We do not *76have to decide here that such a condition would raise the doctrine of res ipsa loquitur, or whether, standing alone, it would afford evidence of malpractice, since it must be considered in the light of other competent evidence.

It is true that the physician or surgeon is not a guarantor of the result, but when the original conditions are known and the matter does not fall within the range of highly scientific and technical knowledge a result might be so grotesquely contrary to all human experience as to afford some evidence to go to the jury on such a question. It does not seem to be too far beyond the comprehension of the jury that in simple conditions, at least, broken hones will knit when the ends are brought together, and that the parts, by the application of ordinary skill and care such as is possessed and exercised by physicians and surgeons ordinarily, may be kept in reasonable relation, such, for instance, as to produce an approximately forward aspect of the toes of the foot. Some inference might be drawn from the existing condition, in view of the other evidence with which it is accompanied, that the bones were never properly set or were permitted to grow out of their proper relation through the want of due care and attention.

The condition of the plaintiff's leg and foot, as exhibited to the jury, could well be considered as corroborating the testimony of the plaintiff that the large bone in his leg had been broken during the operation, since it is difficult to see how the foot could have been rotated upon the axis of the limb to the extent described while the large bone was intact. At any rate, we cannot say that there is no evidence of negligence in this case to which the jury might not attribute the unfortunate condition exhibited by the plaintiff.

Upon considering a motion for nonsuit, the law requires us to take the evidence of the plaintiff in its most favorable light, assuming it to be true. As to the truth or falsity of the charges made, we express no opinion. No doubt, the defendant upon the trial of this cause will introduce evidence contradictory to that we have been discussing; but at present the evidence is too challenging in its effect not to require explanation.

The judgment of nonsuit is

Beversed.

Stacy, C. J.,

concurs on the ground that what was done while plaintiff was unconscious or under the influence of an anesthetic calls for explanation in view of defendant’s purported statement and the results obtained, but does not assent to the position that the doctrine of res ipsa loquitur applies generally to the case. Smith v. McClung, 201 N. C., 648, 161 *77 S. E., 91; Springs v. Doll, 197 N. C., 240, 148 S. E., 251; Byrd v. Hospital, 202 N. C., 337, 162 S. E., 738.

It is no evidence of negligence for a physician to reset a fractured. fibula in the left leg, place it in a plaster cast and leave the patient in a hospital for seven days without further personal visit where there is no suggestion of any adverse report, call or complaint in the meantime. Gower v. Davidian, 212 N. C., 172, 193 S. E., 28; Connor v. Hayworth, 206 N. C., 721, 175 S. E., 140. At least, this record affords no basis for pronouncing such treatment evidence of malpractice. Nash v. Royster, 189 N. C., 408, 127 S. E., 356; McLeod v. Hicks, 203 N. C., 130, 164 S. E., 617. For aught we know — and this is a matter which we can know judicially only from the record — the conduct of the defendant in the circumstances may have been well within the range of permissible practice. Mitchem v. James, 213 N. C., 673, 197 S. E., 127; Ferguson v. Glenn, 201 N. C., 128, 159 S. E., 5; Smith v. Wharton, 199 N. C., 246, 154 S. E., 12. “A doctor is neither a warrantor of cures nor an insurer.” Pendergraft v. Royster, 203 N. C., 384, 166 S. E., 285.

Nor does the doctrine of res ipsa loquitur apply to the swelling and bursting of plaintiff’s leg. Smith v. McClung, supra; Springs v. Doll, supra; Davis v. Pittman, 212 N. C., 680, 194 S. E., 97. In a malpractice ease, if plaintiff be entitled to recover at all, he is “entitled to recover compensation only for those injuries which proximately result from defendant’s negligent treatment.” Payne v. Stanton, 211 N. C., 43, 188 S. E., 629; Blaine v. Lyle, 213 N. C., 529, 196 S. E., 833.

WiNBORNE, J., concurs in this opinion.