Clark v. Perry, 9221SC314

• Citation: 114 N.C.App. 297,442 S.E.2d 57
• Decision Date: 19 April 1994
• Docket Number: No. 9221SC314,9221SC314
• Court: Court of Appeal of North Carolina (US)
• Parties: Beverly Dyanna CLARK, Administratrix of the Estate of Earnest Clark, Jr., Appellant, v. Irvin S. PERRY, M.D., and Forsyth County Hospital, Inc., formerly Forsyth County Hospital Authority, Inc., d/b/a Forsyth Memorial Hospital, Appellees.

Page 57

442 S.E.2d 57

114 N.C.App. 297

Beverly Dyanna CLARK, Administratrix of the Estate of Earnest Clark, Jr., Appellant, v. Irvin S. PERRY, M.D., and Forsyth County Hospital, Inc.,

formerly Forsyth County Hospital Authority, Inc.,

d/b/a Forsyth Memorial Hospital, Appellees.

No. 9221SC314.

Court of Appeals of North Carolina.

April 19, 1994.

Herman L. Stephens and Howard C. Jones, III, Winston-Salem, for plaintiff-appellant.

Bell, Davis & Pitt, P.A. by Joseph T. Carruthers, Winston-Salem, for defendant-appellee Perry.

Wilson & Iseman by G. Gray Wilson, Urs R. Gsteiger, and Elizabeth Horton, Winston-Salem, for defendant-appellee Forsyth County Hosp., Inc.

JOHN, Judge.

Plaintiff, administratrix of her late husband's estate, appeals an order directing verdict in favor of defendants Dr. Irvin Perry and Forsyth Memorial Hospital and dismissing her claims of medical negligence (malpractice) and negligent infliction of emotional distress. She also assigns error to numerous evidentiary rulings made by the trial court. We find plaintiff's contentions unpersuasive.

Plaintiff offered evidence tending to show that her late husband, Earnest Clark, Jr. (Clark), was under the medical care of Dr. Romulo Jacinto (Dr. Jacinto) for the ten years preceding Clark's death on 27 September 1986. In November 1985, Clark was baptized into the Jehovah's Witness religious faith, allegedly adhering thereafter to its tenets forbidding the use of blood and blood components. Clark informed Dr. Jacinto of his baptism, giving him a pamphlet entitled "Jehovah's Witnesses and the Question of Blood."

Clark was admitted to Forsyth Memorial Hospital (Forsyth Hospital) several times in 1985 and 1986: 9 August 1985, 30 September 1985, 1 October 1985, and 2 February 1986. Patient evaluation records and admission forms were filled out incident to these admissions, and certain of these documents (kept in Forsyth Hospital's permanent files) indicate Clark's religion as Jehovah's Witness; additionally, during the 9 August 1985 hospital stay, an anesthesiologist's notation in Clark's record specified he was not to receive blood products.

On 14 September 1986, Dr. Jacinto admitted Clark to Forsyth Hospital as the result of complications associated with acquired immune deficiency syndrome (AIDS). These included right upper lobe pneumonia, congestive heart failure, blood clots, skin problems, shortness of breath, and fever. Before this admission, Dr. Jacinto was personally reminded by Clark of his conversion to the Jehovah's Witness faith. On the day of admission, plaintiff similarly informed the admitting office of Forsyth Hospital and the nurse checking Clark into his room. Clark's patient evaluation record from 14 September 1986 and his identification bracelet carried the notation "Jehovah's Witness," and Dr. Jacinto testified the outside of the medical chart taken to Clark's hospital room from admissions bore a red label marked with "Jehovah's Witness" and "No Blood."

Dr. Jacinto related that Forsyth Hospital's unit secretaries bore the responsibility of transferring a patient's chart from one area of the hospital to another, although he was unable to detail a particular manner in which this task was always to be accomplished.

Upon Clark's 14 September admission, Dr. Jacinto called in Dr. Irvin Perry (Dr. Perry), a specialist in internal medicine and pulmonary diseases, for consultation. Dr. Perry "reviewed current and old records" and, after examining Clark, decided to perform first a Swan-Ganz catheterization and then a fibrotic bronchoscopy to relieve some of Clark's respiratory problems. On cross-examination, Dr. Jacinto revealed he spoke with Clark about what each procedure entailed, and testified Clark thereafter stated "whatever it takes to help him (Clark), to make him more comfortable for him to breathe better ... should be done," and "if blood was needed, it was okay." Plaintiff signed consent forms authorizing the procedures to be performed by Dr. Perry. Plaintiff testified she also requested and signed a document releasing the hospital from liability in the event of her husband's death, stating that she did not want him to receive a blood transfusion and that there was "reference on the form to blood transfusion."

Following the bronchoscopy, Clark was transferred from the operating room to the Intensive Care Unit (ICU). Upon being notified by telephone that Clark's hemoglobin level had dropped precariously low, Dr. Perry ordered that Clark receive a blood transfusion. Clark was either asleep or unconscious, and unaware the transfusion had taken place. Shortly thereafter, plaintiff entered the ICU to visit her husband. She woke him, and as the two were talking, a nurse brought an additional pint of blood into the room and prepared to administer a second transfusion to Clark. When plaintiff determined what was taking place, she insisted her husband did not want to receive any blood products because he was a practicing Jehovah's Witness. No further blood was administered. Within moments, the ICU head nurse called plaintiff from Clark's room, whereupon she apologized for the oversight and also showed plaintiff where she had subsequently marked Clark's chart with his Jehovah's Witness status to prevent any recurrence. In the interim, plaintiff related to her husband what had transpired. She testified that upon learning of the transfusion, Clark became excited and upset, some "machines and things started going off" (including the "beeping of the heart machine"), and he cried in front of plaintiff for the first time in their eighteen years of marriage. However, the head nurse related plaintiff said "he was not upset and she was not upset and he was not that devout anyway."

Clark died from complications associated with the AIDS virus on 27 September 1986. Plaintiff and others testified that during his last nine days of life, Clark was upset and distraught about having been given a blood transfusion. Joseph Mitchell, a minister of the faith, explained that Jehovah's Witnesses refuse blood transfusions based upon biblical commands. Reginald Stocks, a minister in Clark's congregation, professed the depth and sincerity of Clark's religious convictions. Stocks saw Clark seven times between the date of the transfusion and the time of death, and observed on each occasion that Clark appeared preoccupied with the effects of having been given blood. Despite Stocks' temporarily successful efforts to reassure Clark, the latter remained concerned, seeming "very, very upset," "dejected," and "depressed" on each subsequent visit. Plaintiff offered testimony to the effect that her husband was "upset," "really upset," "emotional," demonstrated an "angriness," and, in fact, was desirous of suing Dr. Perry and Forsyth Hospital for violating his rights by defiling his blood. Yet Dr. Jacinto, who remained Clark's primary physician for the last nine days of his life, testified neither Clark nor plaintiff mentioned the blood transfusion to him. Moreover, Dr. Jacinto's daily notes about his patient lacked any indication Clark was experiencing unusual emotional difficulty at that time and reflected Clark was contemplating taking the drug AZT to prolong his life.

On behalf of her late husband's estate, plaintiff filed suit on 5 October 1989, against Dr. Jacinto, Dr. Perry, and Forsyth Hospital. Plaintiff voluntarily dismissed her action against Dr. Jacinto on 4 September 1990.

At trial on 21 August 1991, both defendants moved at the close of plaintiff's evidence for directed verdict pursuant to Rule 50 of the North Carolina Rules of Civil Procedure. The trial court allowed the motions of both defendants. Announcing his decision, the judge stated:

I cannot find severe emotional distress from the evidence that we've got.

Furthermore, I can't find proximate cause from the evidence that you bought [sic] out from Jehovah's Witnesses. All the Jehovah's Witnesses have said that the decedent was not in any blame-worthy position from his religious standpoint in any way at all.... So, that removes proximate cause.

Finally, as to the negligence of the doctor, there is no evidence that Dr. Perry knew anything about Mr. Clark being a Jehovah's Witness.

As to the negligence of the hospital, there certainly is evidence that there was a sticker on the front of his chart before he went to the intensive care unit showing no blood. But that's the only evidence. And there is no evidence that that sticker ever got to the intensive care unit. There is some evidence that the--on occasion, the contents of the charts were removed from that metal clipboard and carried upstairs with a rubber band wrapped around them.

And you don't have anything showing ... the people in the intensive care unit were ever placed on--nurses in intensive care units were ever placed on notice that this man was a Jehovah's Witness until after the blood--one unit of blood had been given and at that point was stopped immediately.

I. MEDICAL NEGLIGENCE (MALPRACTICE)

Plaintiff's complaint asserted two allegations of negligence against the "defendants" as follows: 1) breach of the "duty to exercise resonable [sic] care and diligence in the application of their knowledge and skill to [Clark's] care"; and 2) breach of a "duty not to perform any transfusions into his body without his consent" or that of an authorized person. Both defendants contended at the directed verdict hearing, inter alia, that plaintiff had put forth no evidence of the standard of care each owed to Clark.

In considering a motion for directed verdict, the task of the trial court is to determine whether the evidence, viewed in the light most favorable to the non-movant, is sufficient to submit the case to the jury. Southern Bell Telephone and Telegraph Co. v. West, 100 N.C.App. 668, 670, 397 S.E.2d 765, 766 (1990) (citations omitted), aff'd per curiam, 328 N.C. 566, 402 S.E.2d 409 (1991). Evidence of medical negligence or...