Turner v. Duke University

• Citation: 325 N.C. 152,381 S.E.2d 706
• Decision Date: 26 July 1989
• Docket Number: No. 526A88,526A88
• Parties: Richard D. TURNER, Administrator of the Estate of Jane L. Turner v. DUKE UNIVERSITY, Private Diagnostic Clinic, and Allan H. Friedman, M.D.
• Court: United States State Supreme Court of North Carolina

Page 706

381 S.E.2d 706

325 N.C. 152

Richard D. TURNER, Administrator of the Estate of Jane L. Turner v. DUKE UNIVERSITY, Private Diagnostic Clinic, and Allan H Friedman, M.D.

No. 526A88.

Supreme Court of North Carolina.

July 26, 1989.

Leonard T. Jernigan, Jr., P.A., Raleigh, for plaintiff-appellant.

Yates, Fleishman, McLamb & Weyher by Beth R. Fleishman and Barbara B. Weyher, Raleigh, for defendant-appellee Duke University.

Newsom, Graham, Hedrick, Bryson & Kennon by E.C. Bryson, Jr., Joel M. Craig, and Mark E. Anderson, Durham, for defendant-appellees Private Diagnostic Clinic and Allan Friedman, M.D.

MEYER, Justice.

This is a wrongful death action based on alleged medical malpractice. The evidence presented at trial tended to show the following facts and circumstances. In 1982, plaintiff's wife, Jane L. Turner, was diagnosed as having lung cancer, for which she received chemotherapy and radiation treatment. She subsequently developed herpes zoster, or shingles. In time, the shingles disappeared, but Mrs. Turner was left with constant post-herpetic pain in her upper right back. In attempting to find relief for this residual pain, Mrs. Turner saw numerous physicians, but to no avail. She was eventually referred to Dr. Blaine Nashold, a neurosurgeon at defendant Duke University Medical Center ("Duke"), for evaluation as a candidate for a DREZ procedure. This is a neurosurgical procedure in which the appropriate nerves are severed by burning in order to relieve pain. Dr. Nashold in turn referred Mrs. Turner to defendant Dr. Allan H. Friedman, one of Dr. Nashold's partners in the defendant Private Diagnostic Clinic. Dr. Friedman became Mrs. Turner's attending physician.

Accompanied by her husband, Mrs. Turner was admitted to Duke in the afternoon of 25 August 1983. She was examined by Dr. Bruce Woodworth, a urology resident and employee of Duke. On the admission summary, Dr. Woodworth noted that Mrs. Turner had been experiencing constipation and that she had been taking medication to alleviate the problem. Dr. Woodworth conducted a digital rectal examination but found Mrs. Turner's rectum empty and determined that her bowel sounds were normal.

At about 5:00 p.m. the same afternoon, Mr. and Mrs. Turner met with defendant Dr. Friedman. Dr. Friedman explained that it would be necessary for a variety of tests to be performed by various physicians, after which he would consult further with Mr. and Mrs. Turner as to what type of pain relief would be best suited for her condition. Dr. Friedman then left. That evening, Mrs. Turner took two Dulcolax tablets for her constipation, but they had no effect.

On the following morning of 26 August 1983, Dr. Friedman made his morning rounds. Although he stopped at Mrs. Turner's room and looked at her medical chart, he did not enter the room to examine Mrs. Turner because she appeared to be asleep. Upon awakening and throughout the morning, Mrs. Turner complained of constipation and abdominal cramping. At about 11:00 a.m., Dr. Woodworth ordered that Mrs. Turner be given a saline enema to alleviate her constipation. He further ordered that if the enema produced no results, Mrs. Turner was to be given a half bottle of magnesium citrate. If Mrs. Turner experienced no relief, the second half-bottle of magnesium citrate was to be administered at about 2:00 p.m. Neither the enema nor the first half-bottle of magnesium citrate produced any positive results. Mrs. Turner made numerous unsuccessful attempts to have a bowel movement and continued to complain of abdominal cramping.

The second half-bottle of magnesium citrate was administered at about 2:00 p.m. Mrs. Turner was then transferred to a different wing of the hospital, where patients with neurological complaints were concentrated. Dr. Friedman made his afternoon rounds, but because Mrs. Turner had been moved from her former room, he failed to see her. At about 3:00 p.m., Dr. Robert Havard, an oncologist called upon by Dr. Friedman to evaluate the condition of Mrs. Turner's cancer, visited Mrs. Turner and examined her. Dr. Havard's examination was repeatedly interrupted by Mrs. Turner's trips to the bathroom for unsuccessful attempts to have a bowel movement. Dr. Havard noted on Mrs. Turner's chart that she was experiencing extreme abdominal discomfort as well as nausea and vomiting.

At about 5:00 p.m., plaintiff, who had remained with his wife throughout the day, became increasingly concerned about her abdominal pain. He rang for a nurse and requested that a doctor check Mrs. Turner. Plaintiff was informed that the doctors were making rounds and that they would attend his wife when they reached her room. At 6:00 p.m., the doctors stopped at Mrs. Turner's room, but despite plaintiff's requests, they did not examine Mrs. Turner at that time. Sometime between 7:00 p.m. and 8:00 p.m., plaintiff saw Dr. Woodworth in the hospital hallway and asked him to check his wife. When Dr. Woodworth examined Mrs. Turner, her bowel was distended, she was breathing heavily, and her skin was clammy. He immediately left to order a blood work-up and x-rays and to contact the general surgeon on duty. When Dr. Woodworth returned to Mrs. Turner's room, her blood pressure had dropped. She was unresponsive and in shock. The x-ray revealed the presence of air in the abdominal cavity, which indicated a perforation in Mrs. Turner's colon.

At about 12:00 midnight, Mrs. Turner underwent exploratory surgery, which revealed that her colon was indeed perforated. Mrs. Turner's abdomen was full of stool, and there was a large impaction of fecal matter in her colon. The surgeon determined that Mrs. Turner's intestines were nonsalvagable, and he terminated the operation. The surgeon advised plaintiff that nothing could be done to save his wife. Mrs. Turner was pronounced dead at 4:10 a.m. on 27 August 1983. The autopsy report stated that a single acute perforation of the sigmoid colon had led to bacterial peritonitis, sepsis, and death.

Plaintiff instituted this action on 25 July 1985 pursuant to N.C.G.S. § 28A-18.1, alleging that defendants' negligence in the treatment and diagnosis of his wife proximately caused her death on 27 August 1983. At the end of plaintiff's evidence, the trial court granted a directed verdict in favor of defendants Dr. Friedman and the Private Diagnostic Clinic. The jury subsequently returned a verdict in favor of defendant Duke.

Earlier, on 17 July 1987, prior to trial, plaintiff filed a motion for sanctions against Duke pursuant to N.C.G.S. § 1A-1, Rule 11(a), Rule 26(g) and Rule 37, alleging in part (1) that Duke failed to comply with an order instructing it, in answering a set of interrogatories, to provide the names and addresses of persons involved in the treatment of plaintiff's wife as to specific individuals "if requested by plaintiff's counsel at a later date"; (2) that Duke failed to comply with an order instructing Duke to identify all expert witnesses it would offer at trial before 17 June 1987; (3) that Duke failed to comply with an order instructing all parties to supplement outstanding interrogatories on or by 1 July 1987; and (4) that Duke noticed post 17 July 1987 depositions of two physicians who had treated Mrs. Turner (one located in Florida, and one located in California), whom plaintiff classified as expert witnesses, for an improper purpose and with the intent to harass plaintiff's counsel in contravention of Rule 11(a). After a hearing, plaintiff's motion for sanctions was denied.

Plaintiff appealed to the Court of Appeals both the granting of the directed verdict in favor of Dr. Friedman and the Private Diagnostic Clinic and the denial of the motion for sanctions against Duke. That court, with one judge dissenting, affirmed the directed verdict and unanimously affirmed the denial of the motion for sanctions. Plaintiff appealed to this Court on the issue of the directed verdict, and we granted discretionary review on the issue of the denial of the motion for sanctions. We now reverse the Court of Appeals as to both issues.

I.

We first address plaintiff's contention that the directed verdict in favor of Dr. Friedman and the Private Diagnostic Clinic should not have been granted. The law with regard to directed verdicts is clear. In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the non-movant's claim must be taken as true and considered in the light most favorable to the non-movant, giving the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the non-movant's favor. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979). Further, this Court has stated:

[A]fter all the evidence of plaintiff and defendant is in, the court may consider so much of defendant's evidence as is favorable to plaintiff or tends to clarify or explain evidence offered by plaintiff not inconsistent therewith, but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by plaintiff. Otherwise, consideration would not be in the light most favorable to plaintiff.

Morgan v. Tea Co., 266 N.C. 221, 222-23, 145 S.E.2d 877, 879 (1966). Finally, where the question of granting a directed verdict is a close one, we have said that the better practice is for the trial court to reserve its decision on the motion and allow the case to be submitted to the jury. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977).

At trial and before the Court of Appeals, defendants Dr. Friedman and the Private Diagnostic Clinic successfully argued that plaintiff had failed to produce sufficient evidence on the element of causation to take the case to the jury. Our review of the factual issues in the case with regard to causation compels us to disagree.

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