1. Phoebe G.KENNEDY v. Dr.Fountain PARROTT

2. CONTENT FACT PROCEDURE ISSUE HOLDING DISENT OPINION Q&A

3. FACT-Plaintiff's Complaint The plaintiff consulted the defendant as a surgeon.He diagnosed her ailment as app- endictis and recommended an operation to which she agreed.During the operation the doctor discoverd some enlarged cysts on her left ovary,and he punctured them.After the operation the plaintiff developed phleb- itis in her leg.

4. She testified that defendant told her'that while he was puncturing this cyst in my left ovary that he had cut a blood vessel and caused me to have phlebitis and that those blood clots were what was causing the trouble ' She also testified that defendant told Dr.Tyn- dall,who was called in to examine her for her leg condition,'that while he was operating he punct- ured some cysts on my ovaries,and while punt- uring the cyst on my left ovary he cut a blood vessel which caused me to blood 'to which Dr.Tydall said,'Fountain,you have played hell.'

5. The defendant recommended that the plaintiff go to Duke Hospital,and there is evidence he promised he would pay the bill.She also saw Dr.I.Ridgeway Trimble at Johns Hopkins,Baltim- ore. Dr,Trimble operated on her left leg and said 'to try to correct the damage that was done.' Plaintiff had to undergo considerable pain and suffering on account of the phlebitis and still has some trouble with it.

6. FACT-Defendant's Argument The defendant denied he made the state- ments attributed to him by the plaintiff. It is not amiss to note that the expert witn- ess testified that the puncture of the cysts was in accord with sound surgical proced- ure,and they had performed the appende- ctomy they would also punctured any enla- rged cysts found on the ovaries,as this is the accepted practice in the course of general surgery

7. PROCEDURE Superior Court,Lenoir County,Joseph W.Parker,J. Action against surgeon on theory of negligence and also on theory of assault and trepass. Judgment:Involuntary nonsuit Plaintiff excepted and appealed Supreme Court of North Carolina,Barnhill,C.J. Civil action to recover damages for personal injuries resulting from an alleged unauthorized operation performed by the defendant,a surgeon. Judgment:Affirmed. As the evidence was insufficient for jury on issues of negligence,assault or trepass

8. ISSUE Should the defendant be chargeable with negligence? Is the extension of operation authorized? Should the defendant liable for the harm?

9. HOLDING Should the defendant be chargeable with negligence? The ordinary rules for determining negligence do not prevail.The reason is that when one who possess the requisite skill and ability acts according to his best judgement and in a careful and prudent manner,he is not chargeable with negligence And the plaintiff made no effort in the court below to prove the defendant did not possess the requisite skill and ability,and she offered no evidence that he failed to exercise due and proper care in performing the operation other than her testimony as to what the defendant and Dr.Tydall said in his presence,she tendered no expert testimony

10. Is the extension of operation authorized? In major internal operations,both the patient and the surgeon know that the exact condition of the patient cannot be finally and definitely diagnosed until the patient is completely anesthetized and the incision has been made. In such case,the consent-in the absence of proof to the contrary-will be construed as general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he,in the exercise of his sound professional judgment,determines that correct surgical procedure dictates and requires such an extension of the operation originally contemplated. So,where one has voluntarily submitted himself to a physician or surgeon for diagnosis and treatment of an ailment it,in the abse- nce of evidence to the contrary,will be presumed that what the docter did was either expressly or by implicaion authorized to be done.

11. The defendantThe plaintiff Intent Negligence Phlebitis caused by Inflammation Anesthesia Shock of the operation Confinement to bed The plaintiff Phlebitis was caused by the surgeon Other than her testimony no expert testimony The defendant Denying on what the plaintiff said And five expert testimony Puncturing the cysts was sound surgical procedure

12. DISSENT There is contract between patient and surgeon,when a person consults a physician or surgeon,seeking treatment for physical ailment,real or apparent,and the physician or surgeon agrees to accept him as a patient,The acquiescent contract rules that surgeon's duty to restore him to good health and limit his authority within the contract. Explaination:Actually there is not a contrat between Usually there is no specification as what the surgeon shall do,the patient is under no legal obligation to follow the physician's instructions.Thus it is apt and perhaps more exact to say it creates a status or relation rather than a contract

13. OPINION As the defendant and his appellee tender- ed enough evidence to test that puncturing the cysts on the ovaries in that situation is reasonable and acceptable,which is sou- nd surgical procedure.and the plaintiff have no evidence to show her injuries,just assert that the extension of the operation is unauthorized,It is obviously that insuffic- ient to prove anything.

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