Denny, J.
Assignments of error Nos. 1, 2, 3, 4, and 6 are based on like numbered exceptions to the exclusion of evidence by nonexpert witnesses as to what advice they gave the plaintiff upon observing her condition, and the reason for offering such advice. These witnesses were permitted to testify as to the plaintiff’s physical appearance before she took the Fowler’s solution, as well as during the time she was taking it and immediately thereafter. However, the court sustained the defendant’s objections to their proposals to testify that they advised her to stop taking the medicine “because it seemed to be killing her.”
In cases where the physician’s or surgeon’s want of skill or lack of care is so gross or patent as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it, expert evidence is not required.
Jackson v. Sanitarium,
234 N.C. 222, 67 S.E. 2d 57;
Wilson v. Hospital,
232 N.C. 362, 61 S.E. 2d 102;
Gray v. Weinstein,
N.C. 463, 42 S.E. 2d 616;
Groce v. Myers,
224 N.C. 165, 29 S.E. 2d 553;
Covington v. James,
214 N.C. 71, 197 S.E. 701. But in other factual situations the rule is different as pointed out by
Justice Seawell
in
Groce v. Myers, supra,
in which he said: “In cases involving the application of scientific knowledge peculiar to that branch of learning (the science of medicine), there is no question that the rules of evidence requiring expert opinion in matters of scientific knowledge ought to be carefully enforced, both in the interest of justice and in the protection of a profession peculiarly liable to suit when, after exhausting every known resource and applying the highest degree of skill, the result is not what the patient or friends desire or hoped for.”
The court below properly excluded the above testimony. It constituted nothing more than mere conjecture or surmise on the part of these lay witnesses as to cause and effect in a field of knowledge in which only an expert could give a competent opinion,
Jackson v. Sanitarium, supra,
that is, one as to whether the health of the plaintiff had been injuriously affected by taking the prescribed medicine.
The plaintiff also assigns as error the exclusion of other proffered testimony. But a careful examination of the exceptions upon which these assignments of error are based discloses that they are without merit. Hence, they are overruled.
Assignment of error No. 10 is based on an exception to the ruling of the trial court in sustaining the defendant’s motion for judgment as of nonsuit. Therefore, we must determine whether or not the plaintiff’s evidence, when considered in the light most favorable to her, as it must be on such motion,
Chambers v. Allen,
233 N.C. 195, 63 S.E. 2d 212;
Winfield v.
Smith, 230 N.C 392, 53 S.E. 2d 251, is sufficient to warrant its submission to the jury. In our opinion it is not.
In arriving at this conclusion we are advertent to the rule that we are not permitted to consider the defendant’s evidence, unless it is favorable to the plaintiff, except when it is not in conflict with plaintiff’s evidence, it may be used to explain or make clear that which has been offered by the plaintiff.
Nance v. Hitch,
238 N.C. 1, 76 S.E. 2d 461;
Rice v, Lumberton,
235 N.C. 227, 69 S.E. 2d 543, and cited cases.
The duty of a physician to his patient was set forth in the case of
Nash v. Royster,
189 N.C. 408, 127 S.E. 356, by the late
Chief Justice Stacy
in the following language: “Ordinarily, when a physician or surgeon undertakes to treat a patient without any special arrangement or agreement, his engagement implies three things: (1) that he possesses the requisite degree of learning, skill and ability necessary to the practice of his profession, and which others similarly situated ordinarily possess; (2) that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the patient’s case; and (3) that he will exert his best judgment in the treatment and care of the case entrusted to him,” citing numerous authorities. See
Nance v. Hitch, supra; Jackson v. Joyner,
236 N.C. 259, 72 S.E. 2d 589;
Waynick v. Reardon,
236 N.C. 116, 72 S.E. 2d 4;
Jackson v. Sanitarium, supra; Wilson v. Hospital, supra; Grier v. Phillips,
230 N.C 672, 55 S.E. 2d 485;
Buckner v. Wheeldon,
225 N.C. 62, 33 S.E. 2d 480.
The plaintiff alleges in her complaint that she has suffered great bodily injury, nervous disorder and mental anguish resulting from the defendant’s want of skill, his improper treatment and his failure to use and apply such skill and care as should have been applied in the ordinary course of treatment for her condition.
In an action for malpractice, the burden is upon the plaintiff to prove by the greater weight of the evidence not only that the defendant was negligent, but that such negligence was the proximate cause or one of the proximate causes of her injury.
Grier v. Phillips, supra; Smith v. Wharton,
199 N.C. 246, 154 S.E. 12.
An examination of the plaintiff’s evidence discloses that she employed the defendant on or about 1 September, 1950, to treat her for a skin disease; that she has been a victim of Hodgkin’s disease since 1945; that after she took the Fowler’s solution for seven days and one dose on the eighth day, she discontinued taking it.' That after she began to take
Fowler’s solution that contained arsenic, ber legs began to swell and ber face was puffed around ber eyes; that on tbe ninth day after sbe started taking Fowler’s solution tbe whole side of her face was broken out with yellow blisters. She called ber regular family physician, Dr. Grayson, who treated ber over a period of four weeks. Thereafter, ber husband called tbe defendant who went to see ber at ber home and found sbe was suffering from herpes zoster; that sbe went to tbe hospital on tbe 9th or 10th of October, where tbe defendant treated her; that in tbe meantime Dr. Death treated ber eye and Dr. Gray also treated ber for herpes zoster; that when sbe was admitted to tbe hospital sbe was informed that “it was herpes which was circling my eye.”
It is significant that the plaintiff offered no evidence in support of ber allegations with respect to tbe defendant’s want of skill and that be prescribed tbe wrong treatment for ber condition. There is no allegation or evidence to tbe effect that tbe defendant did not use bis best judgment in treating tbe plaintiff. There is no evidence as to what Dr. Grayson, ber family physician, treated ber for or what medicine be gave ber. Neither is there any evidence that sbe ever informed Dr. Grayson, Dr. Death or Dr. Gray that sbe bad taken Fowler’s solution. In so far as tbe plaintiff’s evidence is concerned, tbe treatment prescribed by tbe defendant may have been tbe one overwhelmingly approved and used by tbe medical profession generally in such cases. Furthermore, if it was an approved and acceptable treatment and tbe dosages as prescribed proper, tbe mere fact that sbe bad an unfavorable reaction from its use would not make tbe doctrine of
res ipsa loquitur
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Denny, J.
Assignments of error Nos. 1, 2, 3, 4, and 6 are based on like numbered exceptions to the exclusion of evidence by nonexpert witnesses as to what advice they gave the plaintiff upon observing her condition, and the reason for offering such advice. These witnesses were permitted to testify as to the plaintiff’s physical appearance before she took the Fowler’s solution, as well as during the time she was taking it and immediately thereafter. However, the court sustained the defendant’s objections to their proposals to testify that they advised her to stop taking the medicine “because it seemed to be killing her.”
In cases where the physician’s or surgeon’s want of skill or lack of care is so gross or patent as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it, expert evidence is not required.
Jackson v. Sanitarium,
234 N.C. 222, 67 S.E. 2d 57;
Wilson v. Hospital,
232 N.C. 362, 61 S.E. 2d 102;
Gray v. Weinstein,
N.C. 463, 42 S.E. 2d 616;
Groce v. Myers,
224 N.C. 165, 29 S.E. 2d 553;
Covington v. James,
214 N.C. 71, 197 S.E. 701. But in other factual situations the rule is different as pointed out by
Justice Seawell
in
Groce v. Myers, supra,
in which he said: “In cases involving the application of scientific knowledge peculiar to that branch of learning (the science of medicine), there is no question that the rules of evidence requiring expert opinion in matters of scientific knowledge ought to be carefully enforced, both in the interest of justice and in the protection of a profession peculiarly liable to suit when, after exhausting every known resource and applying the highest degree of skill, the result is not what the patient or friends desire or hoped for.”
The court below properly excluded the above testimony. It constituted nothing more than mere conjecture or surmise on the part of these lay witnesses as to cause and effect in a field of knowledge in which only an expert could give a competent opinion,
Jackson v. Sanitarium, supra,
that is, one as to whether the health of the plaintiff had been injuriously affected by taking the prescribed medicine.
The plaintiff also assigns as error the exclusion of other proffered testimony. But a careful examination of the exceptions upon which these assignments of error are based discloses that they are without merit. Hence, they are overruled.
Assignment of error No. 10 is based on an exception to the ruling of the trial court in sustaining the defendant’s motion for judgment as of nonsuit. Therefore, we must determine whether or not the plaintiff’s evidence, when considered in the light most favorable to her, as it must be on such motion,
Chambers v. Allen,
233 N.C. 195, 63 S.E. 2d 212;
Winfield v.
Smith, 230 N.C 392, 53 S.E. 2d 251, is sufficient to warrant its submission to the jury. In our opinion it is not.
In arriving at this conclusion we are advertent to the rule that we are not permitted to consider the defendant’s evidence, unless it is favorable to the plaintiff, except when it is not in conflict with plaintiff’s evidence, it may be used to explain or make clear that which has been offered by the plaintiff.
Nance v. Hitch,
238 N.C. 1, 76 S.E. 2d 461;
Rice v, Lumberton,
235 N.C. 227, 69 S.E. 2d 543, and cited cases.
The duty of a physician to his patient was set forth in the case of
Nash v. Royster,
189 N.C. 408, 127 S.E. 356, by the late
Chief Justice Stacy
in the following language: “Ordinarily, when a physician or surgeon undertakes to treat a patient without any special arrangement or agreement, his engagement implies three things: (1) that he possesses the requisite degree of learning, skill and ability necessary to the practice of his profession, and which others similarly situated ordinarily possess; (2) that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the patient’s case; and (3) that he will exert his best judgment in the treatment and care of the case entrusted to him,” citing numerous authorities. See
Nance v. Hitch, supra; Jackson v. Joyner,
236 N.C. 259, 72 S.E. 2d 589;
Waynick v. Reardon,
236 N.C. 116, 72 S.E. 2d 4;
Jackson v. Sanitarium, supra; Wilson v. Hospital, supra; Grier v. Phillips,
230 N.C 672, 55 S.E. 2d 485;
Buckner v. Wheeldon,
225 N.C. 62, 33 S.E. 2d 480.
The plaintiff alleges in her complaint that she has suffered great bodily injury, nervous disorder and mental anguish resulting from the defendant’s want of skill, his improper treatment and his failure to use and apply such skill and care as should have been applied in the ordinary course of treatment for her condition.
In an action for malpractice, the burden is upon the plaintiff to prove by the greater weight of the evidence not only that the defendant was negligent, but that such negligence was the proximate cause or one of the proximate causes of her injury.
Grier v. Phillips, supra; Smith v. Wharton,
199 N.C. 246, 154 S.E. 12.
An examination of the plaintiff’s evidence discloses that she employed the defendant on or about 1 September, 1950, to treat her for a skin disease; that she has been a victim of Hodgkin’s disease since 1945; that after she took the Fowler’s solution for seven days and one dose on the eighth day, she discontinued taking it.' That after she began to take
Fowler’s solution that contained arsenic, ber legs began to swell and ber face was puffed around ber eyes; that on tbe ninth day after sbe started taking Fowler’s solution tbe whole side of her face was broken out with yellow blisters. She called ber regular family physician, Dr. Grayson, who treated ber over a period of four weeks. Thereafter, ber husband called tbe defendant who went to see ber at ber home and found sbe was suffering from herpes zoster; that sbe went to tbe hospital on tbe 9th or 10th of October, where tbe defendant treated her; that in tbe meantime Dr. Death treated ber eye and Dr. Gray also treated ber for herpes zoster; that when sbe was admitted to tbe hospital sbe was informed that “it was herpes which was circling my eye.”
It is significant that the plaintiff offered no evidence in support of ber allegations with respect to tbe defendant’s want of skill and that be prescribed tbe wrong treatment for ber condition. There is no allegation or evidence to tbe effect that tbe defendant did not use bis best judgment in treating tbe plaintiff. There is no evidence as to what Dr. Grayson, ber family physician, treated ber for or what medicine be gave ber. Neither is there any evidence that sbe ever informed Dr. Grayson, Dr. Death or Dr. Gray that sbe bad taken Fowler’s solution. In so far as tbe plaintiff’s evidence is concerned, tbe treatment prescribed by tbe defendant may have been tbe one overwhelmingly approved and used by tbe medical profession generally in such cases. Furthermore, if it was an approved and acceptable treatment and tbe dosages as prescribed proper, tbe mere fact that sbe bad an unfavorable reaction from its use would not make tbe doctrine of
res ipsa loquitur
applicable, nor would it be sufficient to establish actionable negligence against tbe defendant.
Springs v. Doll,
197 N.C. 240, 148 S.E. 251;
Smith v. McClung,
201 N.C. 648, 161 S.E. 91;
Byrd v. Hospital,
202 N.C. 337, 162 S.E. 738. As stated by
Barnhill, J.,
in
Lippard v. Johnson,
215 N.C. 384, 1 S.E. 2d 889 : “Practical application of tbe medical science is necessarily to a large degree experimental. Due to tbe varying conditions of human systems tbe result of tbe use of any medicine cannot be predicted with certainty. What is beneficial to many sometimes proves to be highly injurious to others.” Moreover, a physician is not “a warrantor of cures nor an insurer.”
Pendergraft v. Royster,
203 N.C. 384, 166 S.E. 285.
It is permissible for us to examine tbe defendant’s evidence in order to ascertain tbe nature of tbe diseases tbe plaintiff bad, according to ber evidence, at tbe time tbe defendant prescribed for ber and at tbe time sbe entered the hospital more than a month thereafter. It will be noted that there is a considerable variance between tbe allegations of tbe complaint and tbe plaintiff’s evidence as to tbe time sbe was hospitalized.
Tbe defendant testified that when be prescribed for ber sbe bad psoriasis, which is a chronic skin disease; that its cause is not known and there
is no known cure for it; that it will improve in response to certain treatments.
Dr. Gray testified that Hodgkin’s disease is a disease of unknown cause; that it is malignant, one of the most malignant diseases of the lymph system, the glands of the body, characterized by the enlargement of these glands, frequent loss of weight, loss of appetite, anemia, and easy fatigue; it is incurable. This witness further testified that “we are never certain of the cause of herpes because herpes zoster may appear as a primary infection in some individuals who otherwise seem well, and it may also appear in people who have chronic diseases or current diseases . . . Hodgkin’s disease is a debilitating disease; it is one such as patients have who frequently have shingles.” Therefore, it is not established by the plaintiff’s evidence or by the evidence of the defendant favorable to her, that the treatment prescribed for her by the defendant caused the herpes zoster or aggravated her condition with respect to Hodgkin’s disease.
In our opinion, the evidence disclosed on this record does not establish actionable negligence against the defendant.
Boger v. Ader,
222 N.C. 758, 23 S.E. 2d 852;
Lippard v. Johnson, supra; Ferguson v. Glenn,
201 N.C. 128, 159 S.E. 5.
For the reasons stated, the judgment of the court below is
Affirmed.