Opinion
No. 26
Filed 26 November 1974
Appeal and Error 46 — Court evenly divided — judgment affirmed — no precedent Where the Court was equally divided on the question presented and one Justice did not participate in the hearing or disposition of the case, the decision of the Court of Appeals is affirmed without becoming a precedent.
The plaintiff, administrator of his infant daughter's estate, instituted his civil action in the superior court against the defendant, her attending physician, alleging her death was proximately caused by the defendant's negligence in administering chloromycetin as treatment for tonsillitis when he knew, or should have known, the use of this powerful drug is often attended by dangerous side effects, including aplastic anemia, and that such use is not recommended by the manufacturer as treatment for intestate's ailments; notwithstanding such knowledge, defendant administered the drug without explaining the danger to the infant's parents and that thereafter aplastic anemia developed from the use of the drug and caused intestate's death.
Boyce, Mitchell, Burns Smith by F. Kent Burns and Eugene Boyce for plaintiff appellant.
Maupin, Taylor Ellis by W. W. Taylor, Jr. and Richard C. Titus; Manning, Fulton Skinner by Howard E. Manning for defendant appellee.
Chief Justice BOBBITT not sitting.
The defendant, by answer, admitted the relationship of physician and patient and that he administered chloromycetin without notifying the parents of his infant patient of the danger incident to the use of the drug. He denied all other material allegation of the complaint.
At the close of the plaintiff's evidence, which included the defendant's adverse examination, Judge Bone sustained defendant's motion for a directed verdict and entered judgment dismissing the action.
On plaintiff's appeal, the North Carolina Court of Appeals affirmed the judgment of the superior court. ( 21 N.C. App. 110, 203 S.E.2d 330.) On plaintiff's application, this Court granted certiorari.
Chief Justice Bobbitt did not participate in the hearing or disposition of this case. The six members of the Court who heard the appeal were equally divided on the question whether the decision of the Court of Appeals should be affirmed or reversed. This equal division requires that the decision of the Court of Appeals be affirmed without becoming a precedent. Parrish v. Piedmont Publishing Co., 271 N.C. 711, 157 S.E.2d 334; James v. Rogers, 231 N.C. 668, 58 S.E.2d 640; Gardner v. McDonald, 223 N.C. 854, 25 S.E.2d 397; Smith v. McDowell Furniture Co., 221 N.C. 536, 19 S.E.2d 17.
Affirmed.
Chief Justice BOBBITT not sitting.