## Facts

- In 1927, Nannie E. Boyce suffered an ankle fracture and was treated by Dr. Edgar H. Brown, who surgically reduced the fracture and fixed it with a metal screw.
- After the fracture healed, Dr. Brown ended treatment; plaintiffs alleged they were not told a screw remained in the ankle.
- In November 1934, Mrs. Boyce returned to Dr. Brown with significant ankle pain.
- Dr. Brown did not order an X-ray; he taped the ankle and adjusted a prior arch support.
- Mrs. Boyce’s pain persisted and worsened.
- In January 1936, Mrs. Boyce consulted Dr. Kent, who ordered an X-ray showing a screw and necrosis around it.
- Dr. Kent removed the screw, after which Mrs. Boyce’s ankle substantially recovered.
- Plaintiffs sued for malpractice based on Dr. Brown’s 1934 failure to order an X-ray and diagnose and remove the screw.

## Issues

1. Whether plaintiffs presented sufficient evidence, including expert medical testimony, to establish the applicable community standard of care and that Dr. Brown deviated from it by not ordering an X-ray and further treating the ankle in 1934.
2. Whether the asserted negligence was so obvious that a jury could find malpractice without expert testimony.

## Decision

- The Arizona Supreme Court affirmed the directed verdict for Dr. Brown.
- The court held plaintiffs failed to present competent evidence establishing the community standard of care and a departure from that standard.
- The court rejected reliance on a physician’s testimony that he would have ordered an X-ray as proof that the standard required it.
- The court held the decision whether to order an X-ray was not within common lay knowledge, so expert testimony on standard of care was required.
- Because plaintiffs’ proof did not permit a reasonable finding of malpractice, the case was properly withheld from the jury.

## Legal Principles

- A licensed physician is presumed to possess and apply the skill and learning of the average practitioner in good standing in the same community, using ordinary and reasonable care.
- A physician is liable for malpractice only if the physician does what accepted community medical practice forbids, or fails to do what that standard requires.
- The community standard of care must be shown by affirmative evidence; absent such evidence, the jury may not speculate about the standard or deviation.
- Negligence is not presumed from an unsuccessful result; it must be affirmatively proven.
- Deviation from the professional standard of care ordinarily must be established by expert medical testimony, except where negligence is so grossly apparent that laypersons can recognize it.
- A difference of medical opinion about preferred treatment does not establish malpractice unless the defendant’s approach departs from accepted methods approved in the community.

## Conclusion

The court upheld judgment for the physician because the malpractice claim lacked expert proof of the applicable community standard of care and a deviation from it, and the alleged failure to order an X-ray was not an obvious form of negligence within lay competence to assess without expert testimony.


Boyce v. Brown, 51 Ariz. 416, 77 P.2d 455 (Ariz. 1938)