Burns v. Forsyth County Hosp. Authority, Inc.

• Decision Date: 01 July 1986
• Docket Number: No. 8521SC1200,8521SC1200
• Citation: 81 N.C.App. 556,344 S.E.2d 839
• Parties: Willie Lee BURNS and Julia Colson Burns v. FORSYTH COUNTY HOSPITAL AUTHORITY, INC., t/a Forsyth Memorial Hospital.
• Court: North Carolina Court of Appeals

Page 839

344 S.E.2d 839

81 N.C.App. 556

Willie Lee BURNS and Julia Colson Burns v. FORSYTH COUNTY HOSPITAL AUTHORITY, INC., t/a Forsyth

Memorial Hospital.

No. 8521SC1200.

Court of Appeals of North Carolina.

July 1, 1986.

Kennedy, Kennedy, Kennedy and Kennedy by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for plaintiffs-appellants.

Bell, Davis & Pitt, P.A. by William Kearns Davis and Stephen M. Russell, Winston-Salem, for defendant-appellee.

JOHNSON, Judge.

Plaintiffs assign error to the granting of summary judgment in favor of defendant as to punitive damages, the granting of directed verdicts on the majority of plaintiffs' claims of negligence, and the exclusion of certain medical records; also plaintiffs' challenge the propriety of the jury charge.

Plaintiffs presented as their case in chief the testimony of both plaintiffs; Dr. Amon Funderburk, one of Willie Lee Burns' treating physicians at Forsyth Memorial Hospital; Everett Fox, an expert in the field of hospital administration; Dr. Joseph Oliver, an expert in the general practice of medicine and Willie Lee Burns' present doctor; two of the plaintiffs' daughters; and Mary Newell Waller, an expert in the field of clinical psychology.

Plaintiffs' evidence tended to show the following: On 28 May 1980, while Willie Lee Burns was driving home from a fishing trip, his "left eye was acting up." Upon his return home he went to see his regular doctor, Dr. Trujillo, who had him admitted to defendant hospital for tests, specifically a myelogram, to determine whether plaintiff had a pituitary tumor. Mrs. Burns requested a private or semi-private room, but Mr. Burns was placed in a ward. The subsequent tests revealed no tumor. When Willie Lee Burns was discharged on 1 July 1980, he had to use a wheel chair. After his discharge, he required assistance walking for the next eighteen months, required hospitalization on three more occasions, became impotent, continuously experienced severe lower back pain, and required the continuous care of a physician and physical therapist up to the time of trial. According to the testimony of plaintiff and several expert witnesses, the deterioration in Willie Lee Burns' physical condition resulted from being hit by a chair thrown by Daniel Moore.

Daniel Moore was transferred to Forsyth Memorial Hospital on 21 May 1980 from Reynolds Health Center, a mental health facility. According to the report submitted by Dr. Bahrani, Daniel Moore's treating physician at Reynolds Health Center, Moore was a voluntary admission seeking treatment of alcoholism. Dr. Bahrani diagnosed the seventy-four year old male as suffering from alcoholism, acute alcohol withdrawal syndrome, and asthma. On 18 June 1980, Daniel Moore was moved into Room 839, a ward room with three other patients, including plaintiff Willie Lee Burns. Plaintiff Julia Colson Burns testified that when she came to visit her husband the evening of 18 June 1980, the "new man in the room [was] acting crazy." Mr. Moore "was hollering and screaming." "He threw his tray and food all over the room." Mrs. Burns observed Mr. Moore playing with his sexual organ. Mr. Moore was restrained by being tied across his stomach with a sheet. "The man was acting so crazy that I was scared to leave Willie in there." Because the nurses who were in the room did nothing to further restrain Mr. Moore, but simply showed amusement at his behavior, Mrs. Burns went to the nurses' station and demanded that Mr. Burns be moved to a private or semi-private room. Mrs. Burns told the nurse at the nurses' station that Daniel Moore was dangerous. The evidence further tended to show that, later that night, during the early morning hours, Daniel Moore got out of his bed, stood at the foot of his bed, and threw a chair. His restraint was still around his waist, with the ends tied to the bed rails. While still recuperating from the myelogram, Willie Lee Burns was struck by a chair in his left leg and left testicle and knocked to the floor.

In the first Assignment of Error addressed, plaintiffs contend the court improperly granted summary judgment in favor of defendant regarding punitive damages. We disagree.

Where a motion for summary judgment is granted, the critical question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, establish a genuine issue as to any material fact. Oliver v. Roberts, 49 N.C.App. 311, 271 S.E.2d 399 (1980), cert. denied, --- N.C. ----, 276 S.E.2d 283 (1981). When the moving party satisfies its burden of proof, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Taylor v. Greensboro News Co., 57 N.C.App. 426, 291 S.E.2d 852, cert. granted, 306 N.C. 751, 295 S.E.2d 486 (1982), appeal dismissed, 307 N.C. 459, 298 S.E.2d 385 (1983). In opposition to defendant's motion, plaintiffs offered the affidavit of Willie M.A. Kennedy registered nurse and attorney licensed to practice law in North Carolina, formerly of plaintiffs' attorneys' law firm. The specific facts set forth in the affidavit supported Ms. Kennedy's opinion that defendant "violated the standard of care and accepted good medical practice in Winston-Salem and in similar communities." Nothing in her affidavit supported plaintiffs' allegations that defendant's acts constituted gross negligence or constituted a complete disregard for the life and safety of Willie Lee Burns. Punitive damages are recoverable in tort actions only where there are aggravating factors surrounding the commission of the tort such as actual malice, oppression, gross and wilful wrong, insult, indignity, or a reckless or wanton disregard of plaintiff's rights. Shugar v. Guill, 54 N.C.App. 466, 277 S.E.2d 126, modified, 304 N.C. 332, 283 S.E.2d 507 (1981). The nonmoving party may not rest upon the mere allegations of his pleadings. Taylor, supra. There was no evidence of any aggravating factors; the court thus did not err in granting summary judgment on the issue of punitive damages.

In plaintiffs' next Assignment of Error, plaintiffs contend that the court erred in granting directed verdicts on many of plaintiffs' claims of negligence. At the close of plaintiffs' evidence the court stated:

With respect to the claims in the complaint, I think there is an issue for the jury whether the hospital knew or should have known at the time Mr. Moore was placed in the room with Mr. Burns or thereafter, that the hospital knew or reasonably should have known that Mr. Moore was dangerous to other patients and that if that in spite of that they put him in the room, and that was the proximate cause of the injury and if the injury is proven to the satisfaction of the jury, then a verdict on that basis could reasonably stand. But with respect to the other allegations of negligence, ... I don't believe there's sufficient evidence to allow any of those allegations of negligence to the jury. To that extent, [I] will allow the motion--

We find no error in the court's ruling. The claims of negligence contained in plaintiffs' complaint which did not go to the jury are:

That the defendant hospital was negligent in that:

A. It failed to place the plaintiff in a private of [sic] semi-private room as ordered by Dr. Ernesto De La Torre.

E. It failed to apply effective restraints to Daniel Moore to prevent him from causing injury to the plaintiff.

F. It failed to provide nurses or other hosptital [sic] staff in the plaintiff's room to observe and control Daniel Moore, and to ensure that he not injure the plaintiff.

G. It abandoned the plaintiff by failing to treat his injuries, after he was injured in his hospital room on June 19, 1980.

H. It failed to segregate mental patients, especially Daniel Moore, from other patients in the hospital who were not mental patients.

I. It failed to conform to accepted good medical practice in the Winston-Salem community and in similar communities throughout the nation.

We find that all the above claims of plaintiffs, with the exception of (A) and (G) above, are subsumed in the issue that the court sent to the jury. Accordingly, there is no error. As to plaintiffs' allegations of abandonment, (G) above, we have carefully reviewed plaintiffs' evidence and find a complete lack of evidence to support this claim.

We have also reviewed the record regarding plaintiffs' allegations of negligence for defendant's failure to place Mr. Burns in a private or semi-private room as ordered by Dr. Ernesto De La Torre, (A) above. Plaintiffs' evidence showed that on 16 June 1980, Dr. Ernesto De La Torre entered an order in plaintiff's chart as follows: "Transfer to semi-private room for [the] sake of his nerves." The hospital has a duty to make a reasonable effort to oversee and monitor the physician's treatment of a patient. Bost v. Riley, 44 N.C.App. 638, 647, 262 S.E.2d 391, 396, cert. denied 300 N.C. 194, 269 S.E.2d 621 (1980). The hospital has a duty to obey instructions of a doctor, absent the instructions being obviously negligent or dangerous. See Habuda v. Rex Hospital, 3 N.C.App. 11, 164 S.E.2d 17 (1968). These duties flow directly from the hospital to the patient under the doctrine of corporate negligence, expressly adopted in North Carolina in the Bost decision, supra. The facts here do indicate a possible breach of the duty to carry out the physician's order; however, plaintiffs' case failed to establish that such breach, if any, was the proximate cause of Mr. Burns' injury. An essential element of proximate cause is reasonable foreseeability. Coltraine v. Pitt County Memorial Hosp., 35 N.C.App. 755, 758, 242 S.E.2d 538, 540 (1978). The evidence shows that Daniel Moore was not placed in Room 839 with Mr. Burns until two days after the physician entered his order to move Mr. Burns. Dr. De La Torre wrote that the purpose of the transfer was "for [the] sake of his nerves." There is no evidence that def...