Chapman v. Pollock
| Decision Date | 17 July 1984 |
| Docket Number | No. 8310SC54,8310SC54 |
| Citation | 317 S.E.2d 726,69 N.C.App. 588 |
| Court | North Carolina Court of Appeals |
| Parties | Luther F. CHAPMAN v. Morris POLLOCK and Raleigh Internal Medicine Association, P.A. |
McCain & Essen by Grover C. McCain, Jr. and Jeff Erick Essen, Chapel Hill, for plaintiff-appellant.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James D. Blount, Jr. and Timothy P. Lehan, Raleigh, for defendants-appellees.
Plaintiff first contends that the trial court erred "by refusing to allow plaintiff's expert witness, Dr. Edward J. Shahady, to give opinion testimony as to whether ... the defendants' treatment of the plaintiff complied with the appropriate standards of care." We agree.
Dr. Shahady was plaintiff's only expert witness. He practices family medicine in Chapel Hill and is also a professor in and chairman of the Department of Family Medicine at the University of North Carolina Medical School. He testified that he was familiar with the standards of practice for family practitioners and internal medicine practitioners as they existed in March, 1978 in Raleigh and other similar communities for the care, treatment and diagnosis of abdominal pain and appendicitis and had reviewed the following materials relating to plaintiff's case: The defendants' office records, the plaintiff's hospital records, outpatient records of physicians consulted after surgery, and the depositions of Dr. Pollock and the plaintiff. Following this testimony the proceedings continued as follows:
Q. And in your review of the records and materials that you earlier described have you formed an opinion as to whether those standards of care as they existed in March 1978 for family medicine and internal medicine practitioners, was complied with in the care, treatment and diagnosis that Dr. Pollock gave to Mr. Chapman?
Q. Have you formed an opinion as to whether that care and treatment given by Dr. Pollock to Mr. Chapman in March 1978 complied with those standards of care?
....
JURY RETIRES.
....
MR. McCAIN: I would like to include his last answer in the record.
COURT: Certainly, permitted. Court reporter read it back. Doctor may answer for the record proper.
(Last question read aloud).
A. Yes, I have formed an opinion.
Q. What is that opinion?
A. That they did not conform to the standard of care.
Evidence was then offered about how the care and treatment rendered by Dr. Pollock failed to comply with the appropriate standard of care. Following a conference between the court and counsel the jury returned and the examination of Dr. Shahady continued as follows:
Q. Dr. Shahady, in forming your opinion as to whether there was compliance with the standards of care, what basis in the materials given you--what facts formed the basis for your opinion?
Q. Dr. Shahady, in forming your opinion as to whether there was a compliance with the standards of care for internal medicine and family medicine practitioners in March 1978, in the Raleigh or other similar communities, what materials did you consider in forming such an opinion?
Q. Dr. Shahady in your review of the materials which were given to you for review, did you form an opinion satisfactory to yourself and to a reasonable medical probability, as to whether or not the care and treatment given by Dr. Morris Pollock in March of 1978 to Luther Frank Chapman, complied with the standards of care for that time period, that is March of 1978, in the Raleigh or other similar communities?
MR. McCAIN: We would request that answer, your Honor.
....
JURY RETIRES.
COURT: You may now answer the last question for the Record proper only.
A. I do have an opinion.
Q. What is that opinion?
A. That it did not conform to the standards.
COURT: Bring the jury back.
The plaintiff concluded his examination without asking any other questions and there was no cross-examination.
Plaintiff excepted to and assigns as error the exclusion of the above quoted testimony, all of which was excluded pursuant to general objections. When a general objection is sustained it will generally be upheld if there is any reason to exclude the evidence. 1 Brandis N.C. Evidence § 27 (1982). Thus, the several possible grounds for the exclusion must be considered. Certainly, the evidence could not have been properly excluded under the theory that the witness was not qualified as an expert. "An expert witness is one better qualified than the jury to draw appropriate inferences from the facts." Cogdill v. Highway Commission, 279 N.C. 313, 321, 182 S.E.2d 373, 378 (1971). As a licensed physician that treats patients with abdominal complaints, teaches medical students and other doctors with respect thereto, and claims to be familiar with the standards prevailing in the community for treating such complaints, Dr. Shahady was certainly qualified to express an opinion as to whether Dr. Pollock had complied with those standards.
The next possibility for excluding the testimony that occurs to us is that no proper basis for Dr. Shahady's opinions was established. "A physician, as an expert witness, may give his opinion, including a diagnosis, based either on his personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence." State v. Wade, 296 N.C. 454, 462, 251 S.E.2d 407, 412 (1979). We are unable to determine precisely what information Dr. Shahady relied upon in forming his opinion, because plaintiff's attempts to ascertain this information were frustrated by the court's rulings sustaining defense counsel's objections to those questions. Nevertheless, it is plain from Dr. Shahady's earlier testimony that he had reviewed the office records of Dr. Pollock, the patient's hospitalization records, the outpatient records of physicians who saw plaintiff after surgery and the depositions of both the plaintiff and defendant doctor--all of which, under the guidelines laid down by our Supreme Court in State v. Wade, supra, a physician can rely upon in forming an expert opinion. Therefore the exclusion cannot be upheld on this ground.
Another possible ground argued for by defendants is that plaintiff improperly framed his questions by asking whether the treatment rendered by Dr. Pollock complied with the standards for family medicine and internal medicine practitioners. According to them, the witness could only be questioned as to the practices and standards of internal medicine specialists, since that is Dr. Pollock's specialty. This is not and cannot be the law. If it was many of those who practice in narrow specialties would be immunized from accountability for their incompetence or derelictions due to the inability of their patients to get a specialist in their field to testify against them. Which not only would be unjust, but unjustifiable, since doctors in one field can often throw light on what is proper treatment in another. The anatomical, physiological, and bacteriological problems relating to human illnesses and their treatment do not change because a medical specialist in one field instead of another is the examining or treating physician. Thus, though Dr. Pollock can only be held to the standards of internal medicine specialists, evidence as to what other experienced, qualified medical doctors do in treating the same illness is certainly relevant thereto. In the unlikely event that a patient manifesting the signs and symptoms of appendicitis required one treatment when examined by an internist and another when examined by a family practitioner, Dr. Pollock could have so testified; but that would not have eliminated the admissibility of Dr. Shahady's testimony, the weight of which would have been for the jury. But Dr. Pollock did not so testify; his earlier testimony was that the standards of care for diagnosing and treating appendicitis are the same for family medicine and internal medicine practitioners. This, in effect, left the argument made now without basis.
The only other possible ground for excluding the testimony that occurs to us is the wording of the questions. But though plaintiff's questions were not as precisely formed as they might have been, their wording was reasonably adequate under the circumstances that existed, and the evidence could not have been properly excluded on that ground. Since no proper basis for excluding Dr. Shahady's testimony has been found, we conclude that the court erred in rejecting the testimony and plaintiff is entitled to a new trial. The prejudicial effect of the exclusion is plain.
Plaintiff next contends that the court...
To continue reading
Request your trial
-
State v. Harris
...a general objection is sustained it will generally be upheld if there is any reason to exclude the evidence." Chapman v. Pollock, 69 N.C.App. 588, 592, 317 S.E.2d 726, 730 (1984). We find that Defendant's testimony could have been excluded under N.C. Gen.Stat. § 8C-1, Rule 608(b), because t......
-
McGill v. French
...can readily determine without expert assistance whether defendant proximately caused plaintiff's injuries, Chapman v. Pollock, 69 N.C.App. 588, 317 S.E.2d 726 (1984), plaintiff argues that the rate of spread of prostate cancer is not such that ordinary laypersons possess that information or......
-
John Q. Hammons Inc. v. Poletis
...of common knowledge which speak for themselves, sometimes even louder than witnesses, expert or otherwise." Chapman v. Pollock, 69 N.C.App. 588, 317 S.E.2d 726, 732 (1984). Here, there was no expert testimony indicating the type of material behind the tiles or how long it would take to beco......