Butler v. Berkeley

• Decision Date: 16 April 1975
• Docket Number: No. 7426SC1099,7426SC1099
• Citation: 25 N.C.App. 325,213 S.E.2d 571
• Parties: Douglas L. BUTLER v. William T. BERKELEY and the Charlotte-Mecklenburg Hospital Authority, Inc., acorporation.
• Court: North Carolina Court of Appeals

Page 571

213 S.E.2d 571

25 N.C.App. 325

Douglas L. BUTLER v. William T. BERKELEY and the Charlotte-Mecklenburg Hospital

Authority, Inc., acorporation.

No. 7426SC1099.

Court of Appeals of North Carolina.

April 16, 1975.

Whitfield, McNeely, Norwood & Badger by David R. Badger, Charlotte, for plaintiff appellant.

Carpenter, Golding, Crews & Meekins by John G. Golding, Charlotte, for appellee Dr. William T. Berkeley.

Boyle, Alexander & Hord by B. Irvin Boyle, Charlotte, for appellee The Charlotte-Mecklenburg Hospital Authority, Inc.

MORRIS, Judge.

At the outset, we note that plaintiff candidly concedes that he has produced no evidence to substantiate his contentions concerning unsterile procedures used by defendants. Since this was the only basis for the cause of action against the hospital, we do not discuss plaintiff's appeal from the summary judgment in favor of the hospital. It is affirmed.

Each movant supported the motion for summary judgment with the deposition of Dr. Berkeley and the deposition of plaintiff, and no party filed any affidavit in opposition to the motions made against him or it, although Dr. Berkeley did file a response to plaintiff's motion for summary judgment in which he referred to the testimony given in both depositions.

At the hearing on a motion for summary judgment, the court may consider the pleadings, affidavits meeting the requirements of G.S. § 1A--1, Rule 56(e), depositions, answers to interrogatories, admissions, oral testimony, documentary materials, facts which are subject to judicial notice, and such presumptions as would be available upon trial. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

'A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.' Page v. Sloan, 281 N.C. 697, 705 190 S.E.2d 189 (1972), and cases cited therein.

Although upon trial of issues raised by the pleadings the plaintiff would have the burden of proof, upon motion for summary judgment the movant has the burden of establishing that there is no genuine issue of fact remaining for determination. If he meets that burden of proof, he is entitled to judgment as a matter of law. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972); Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974); Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974). The party opposing the motion has no burden of coming forward with evidentiary material in support of his claim until movant has produced evidence 'of the necessary certitude which negatives plaintiff's claim against it in its entirety.' Whitley v. Cubberly, supra, 24 N.C.App. at 206, 210 S.E.2d at 291; Tolbert v. Tea Co., supra.

'Furthermore, in passing upon a motion for summary judgment, all affidavits, depositions, answers to interrogatories and other material filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in his favor which may be reasonably drawn from such material. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).' Whitley v. Cubberly, supra, 24 N.C.App. at 206--207, 210 S.E.2d at 291.

When these principles are applied to defendant's motion for summary judgment with respect to plaintiff's first cause of action, we conclude that defendant failed to carry the burden of proof so as to entitle him to summary judgment as a matter of law.

In paragraph 7 of his complaint, plaintiff alleged:

'After examination by defendant William T. Berkeley of the scar heretofore described, defendant William T. Berkeley informed plaintiff that his left cheekbone was depressed; that defendant William T. Berkeley then specifically represented, guaranteed and warranted to plaintiff that, for a consideration, hereinafter more fully stated, defendant William T. Berkeley would raise the left cheekbone so it would exactly match the right cheekbone, in addition to removing the scar heretofore described; that the surgical procedure would improve the appearance of plaintiff's face by making the left side of plaintiff's face completely symmetrical with the right side of plaintiff's face; that defendant William T. Berkeley represented, guaranteed and warranted to the plaintiff that upon completion of the surgical procedure to make the plaintiff's face symmetrical that the plaintiff would be able to open his mouth wider than before surgery; that the surgical procedure was simple, requiring only four (4) or five (5) days hospitalization; that there would be very little post-operative discomfort, consisting primarily of a little swelling in the area of the left cheekbone; that the surgical procedure definitely would not adversely affect the plaintiff's left eye.'

In his deposition defendant testified that in his first conference with plaintiff, 'we pointed out that the cheekbone could be improved and elevated'. Further, '(w)e explained, with the skull, we explained that it was a common procedure to elevate the cheekbone secondary to an old trauma or a depressed cheekbone or a depression of a congenital deformity, that one could open the tripart type fracture, meaning the cheekbone, elevate the cheekbone, bring it up to normal position and then to fix it in a normal position and hold it there until it became solid and fused bone and then remove the pin.' Defendant testified that on the occasion of plaintiff's first visit in July, nothing was said about involvement of plaintiff's eye. He further testified that plaintiff returned in October and that on that visit defendant again explained the surgical procedure in detail but that he does not recall whether he made any statement about the eye.

We cannot say that defendant produced evidence of the necessary certitude which negatived plaintiff's claim in the first cause of action in its entirety.

The deposition of plaintiff was taken by agreement of both parties. The record is silent as to whether it was submitted by plaintiff in opposition to defendant's motion or by defendant in support of his motion. The record indicates only that it was considered by the court. In any event, considering the deposition with plaintiff's verified complaint, and treating the complaint as an affidavit in compliance with G.S. § 1A--1, Rule 56(e), containing allegation of facts admissible in evidednce, and viewing all the material considered by the court in the light most favorable to plaintiff, as we are required to do, we are constrained to hold that on the present record the court committed error in granting defendant's motion for summary judgment as to the plaintiff's first cause of action. Whether plaintiff will be able to meet his burden of proof upon a trial of the issues is another question.

Plaintiff's second cause of action is bottomed on negligence. He alleges that the hospital kept and allowed to be used and that Dr. Berkeley did use a prosthetic device and items of silicone which were not sterile and that Dr. Berkeley failed to use sterile procedures in the insertion of the pin and the implanting of the silicone. Dr. Berkeley testified that the infection which manifested itself after the removal of the pin and the silicone did not result from the use of either, that it was a rare occurrence, and he could not say exactly what caused it but that no mistakes or 'slips' occurred during the surgery and he performed the operation in accordance with the generally accepted standards and procedures for persons in the speciality of plastic surgery performing such an operation. Plaintiff candidly concedes in his brief and stated on oral argument that there is no evidence to support allegations in the complaint as to negligence. He does contend in his brief that there is a genuine issue of fact as to whether the ingestion of fluids by plaintiff was with Dr. Berkeley's concurrence and caused the infection of which plaintiff complains. He alleged in the second cause of action that Dr. Berkeley was negligent in furnishing post-operative care 'in that he failed to exercise the degree of skill, care, and knowledge ordinarily exercised in similar cases by other surgeons specializing in plastic and reconstructive surgery in the City of Charlotte, County of Mecklenburg, State of North Carolina, or in a similar community.' These are mere conclusions of the pleader and not to be considered in opposition to or in support of a motion for summary judgment. Singleton v. Stewart, supra. Neither does plaintiff allege the respects in which the defendant was negligent in his post-operative care. However, the sufficiency of the allegations of the complaint do not determine the motion for summary judgment. 6 Moore, Federal Practice, 2d Ed. (1971), § 56.04(1), p. 2059. 'If this were not the case, Rule 56 would be a nullity for it would merely duplicate the motion to dismiss.' Lindsey v. Leavy, 149 F.2d 899, 902 (C.A.9th Cir. 1945), cert. denied, 326 U.S. 783, 66 S.Ct. 331, 90 L.Ed. 474 (1946). The motion pierces the bare pleadings, allegations and penetrates to the factual core of the controversy. Singleton v. Stewart, supra.

With these principles in mind we look at the evidence presented by the two depositions before the court. Dr. Berkeley's evidence, considered in the light most favorable to plaintiff, is that the plaintiff did ingest fluids by mouth, with the knowledge of defendant that the nasal gastric tube inserted to prevent protein, milk, or food in the mouth from contaminating the packing had been removed by plaintiff; that the hospital record showed that 'patient took fluids PO (by mouth) despite being advised that this was against physician's orders' that his having taken those fluids by mouth could have...