Beaver v. Hancock

• Decision Date: 15 January 1985
• Docket Number: No. 8422SC308,8422SC308
• Citation: 324 S.E.2d 294,72 N.C.App. 306
• Parties: Grady B. BEAVER and wife, Ruby Marlowe Beaver v. Richard P. HANCOCK, M.D.
• Court: North Carolina Court of Appeals

Page 294

324 S.E.2d 294

72 N.C.App. 306

Grady B. BEAVER and wife, Ruby Marlowe Beaver v. Richard P. HANCOCK, M.D.

No. 8422SC308.

Court of Appeals of North Carolina.

Jan. 15, 1985.

Harris & Pressly by J. Pressly Mattox, Statesville, for plaintiffs.

Kennedy, Covington, Lobdell & Hickman by Charles V. Tompkins, Jr. and Kiran H. Mehta, Charlotte, for defendant.

WELLS, Judge.

Plaintiff failed to place any exceptions or assignments of error in the record. The appeal nonetheless constitutes an exception to the judgment, and presents the question of whether the judgment is supported by the conclusions of law. Rule 10(a) of the Rules of Appellate Procedure. A motion for summary judgment requires the court to rule on the legal sufficiency of the pleadings and evidence to raise issues of fact. See Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). The court finds issues of fact; it does not determine them. See Hotel Corp. v. Taylor, 301 N.C. 200, 271 S.E.2d 54 (1980); 73 Am.Jur.2d Summary Judgment § 1 (1974). In addition, summary judgment is a drastic measure, to be used with caution, particularly in negligence cases. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979). Accordingly, we hold that under Rule 10(a) plaintiff's appeal adequately presents the propriety of the grant of summary judgment.

On a motion for summary judgment, the evidence must be considered in the light most favorable to the non-moving party, with all favorable inferences therefrom. Rose v. Guilford Co., 60 N.C.App. 170, 298 S.E.2d 200 (1982). The moving party's papers are scrutinized carefully, while the non-movant's are treated indulgently. Vassey v. Burch, supra. Under these standards, the movant must forecast evidence which would entitle it to judgment as a matter of law. The opposing party has no duty to come forward until the movant has met its burden; if internal inconsistencies in the movant's evidence reveal a genuine issue of material fact, summary judgment should be denied. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). Once the movant has presented a sufficient showing, however, the non-movant cannot rest on conclusory allegations. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). Rather, it must come forward with specific facts showing a genuine issue for trial. Id.

Reluctant as we should be to allow the drastic remedy of summary judgment in negligence cases, see Williams v. Power & Light Co., supra, especially medical malpractice cases, Vassey v. Burch, supra; Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978), we nevertheless conclude that under the unusual circumstances presented to the trial court in this case, summary judgment for defendant was appropriately granted. One of the recognized purposes of summary judgment is to allow the moving party, by discovery or affidavits, to "pierce the pleadings," to show that the opposing party cannot produce an essential element of his claim. Lowe v. Bradford, supra.

Plaintiff's complaint asserts three principal aspects of defendant's negligence: (1) the use of wire sutures to close plaintiff's incision; (2) leaving a loose piece of wire suture in plaintiff's body; and (3) the failure to discover, diagnose, or remove loose sutures from plaintiff's body. It is clear that in order to establish any of these elements of negligence, plaintiff would have to rely in part on the testimony of other physicians who either diagnosed or treated plaintiff subsequent to his gall bladder operation.

Plaintiff's burden was to show that defendant was negligent in his care of plaintiff and that such negligence was the proximate cause of plaintiff's injuries and damage. Ballenger v. Crowell, supra. The defendant physician's negligence must be established by showing the standard of care owed to plaintiff and that defendant violated that standard of care. The standard owed is that standard which is in accordance with accepted standards of care in the community in which plaintiff was treated, or in similar communities. N.C.Gen.Stat. § 90-21.12 (1981), Ballenger v. Crowell, supra. Usually, but not in all cases, the accepted standard of care and its violation must be established by expert testimony. Powell v. Shull, 58 N.C.App. 68, 293 S.E.2d 259, cert. denied, 306 N.C. 743, 295 S.E.2d 479 (1982).

Based on the materials before the trial court at the summary judgment level, we cannot place this case in any exception to the general rule. Defendant having shown in his forecast of evidence that he did not violate the standard of care he owed plaintiff, it was then incumbent upon plaintiff to show by the affidavits of those other physicians who had treated plaintiff...