Cox v. Haworth, s. 8118SC192

• Decision Date: 20 October 1981
• Docket Number: Nos. 8118SC192,8118SC193,s. 8118SC192
• Citation: 283 S.E.2d 392,54 N.C.App. 328
• Court: North Carolina Court of Appeals
• Parties: Alfred W. COX v. Chester C. HAWORTH, Jr., M.D., and High Point Memorial Hospital, Inc. Avis Helen COX v. Chester C. HAWORTH, Jr., M.D., and High Point Memorial Hospital, Inc.

Page 392

283 S.E.2d 392

54 N.C.App. 328

Alfred W. COX v. Chester C. HAWORTH, Jr., M.D., and High Point Memorial

Hospital, Inc.

Avis Helen COX v. Chester C. HAWORTH, Jr., M.D., and High Point Memorial Hospital, Inc.

Nos. 8118SC192, 8118SC193.

Court of Appeals of North Carolina.

Oct. 20, 1981.

Barefoot & White by Spencer W. White, Greensboro, for plaintiff-appellants.

Nichols, Caffrey, Hill, Evans & Murrelle by G. Marlin Evans, Greensboro, for defendant-appellee.

BECTON, Judge.

The Coxes argue that the trial court improperly granted summary judgment to the Hospital because (1) Dr. Haworth, their privately retained physician, was an agent of the Hospital; and (2) the Hospital was liable to them under both corporate negligence and battery theories since the Hospital was under a duty to, but never did, obtain Mr. Cox's informed consent before Dr. Haworth performed the myelogram. We reject these arguments.

We note initially that on a motion for summary judgment the moving party has the burden of proving that there are no issues of material fact; all "papers" will be viewed in a light most favorable to the nonmovant. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974); G.S. 1A-1, Rule 56(c).

If a party moving for summary judgment presents, by affidavits or otherwise, materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavits or otherwise, that show there is a triable issue of material fact.

Askew's, Inc. v. Cherry, 11 N.C.App. 369, 372, 181 S.E.2d 201, 203 (1971) (citations omitted).

I

We address the respondeat superior issue first. The Coxes alleged in their Complaints that Dr. Haworth was an employee of the Hospital engaged in the regular scope of his employment during the time he performed the myelogram. The Hospital not only denied that allegation in its Answer, but also filed affidavits showing that Dr. Haworth was not an employee of the Hospital at the time the myelogram was performed. The Coxes did not respond to the Hospital's affidavits with counter affidavits or other proof as required by our Rules of Civil Procedure. G.S. 1A-1, Rule 56(e).

Rule 56(e) provides for the filing of "[s]upporting and opposing affidavits" in summary judgment proceedings and states, in relevant part, that:

The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

G.S. 1A-1, Rule 56(e). See Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978).

The Hospital, having filed affidavits to support its motion for summary judgment, was entitled to summary judgment on the issue of liability based on respondeat superior because the Coxes did not offer competent evidence to show that Dr. Haworth was an agent of the Hospital. They chose instead to "rest upon the mere allegations" in their pleadings. This, they are not allowed to do.

II

We also find that the Hospital was entitled to summary judgment on the issue of corporate negligence. Under the doctrine of corporate negligence, a hospital is liable for acts which constitute a breach of a duty owed directly to a patient. Bost v. Riley, 44 N.C.App. 638, 645, 262 S.E.2d 391, 395, disc. rev. denied 300 N.C. 194, 269 S.E.2d 621 (1980). We are urged to extend the doctrine to impose a duty upon a hospital to properly inform and advise a patient of the nature of a medical procedure to be performed on him when the patient is admitted to the hospital for an operation under the care of his privately retained physician. We decline to do so.

Judge Wells, in Bost v. Riley, very aptly summarized the law of corporate negligence as applied to hospitals in this State. He stated:

In contrast to the vicarious nature of respondeat superior, the doctrine of "corporate negligence" involves the violation of a duty owed directly by the hospital to the patient. Prior to modern times, a hospital undertook, "only to furnish room, food, facilities for operation, and attendants, and [was held] not liable for damages resulting from the negligence of a physician in the absence of evidence of agency, or other facts upon which the principle of respondeat superior [could have been] supplied." Smith v. Duke University, 219 N.C. 628, 634, 14 S.E.2d 643, 647 (1941). In contrast, today's hospitals regulate their medical staffs to a much greater degree and play a much more active role in furnishing patients medical treatment. [Emphasis in original.]

44 N.C.App. at 645, 262 S.E.2d at 395. See also Rabon v. Hospital, 269 N.C. 1, 152 S.E.2d 485 (1967) in which our Supreme Court, while abolishing the doctrine of charitable immunity formerly available to charitable hospitals, acknowledged this "changed structure of the modern hospital." 44 N.C.App. at 645, 262 S.E.2d at 395. With this "changed structure" comes a corresponding duty. As stated in Bost,

[w]hile the doctrine of corporate negligence has never previously been either expressly adopted or rejected by the courts of our State, it has been implicitly accepted and applied in a number of decisions. The Supreme Court has intimated that a hospital may have the duty to make a reasonable inspection of equipment it uses in the treatment of patients and remedy any defects discoverable by such inspection. Payne v. Garvey, 264 N.C. 593, 142 S.E.2d 159 (1965). The institution must provide equipment reasonably suited for the use intended. Starnes v. Hospital Authority, 28 N.C.App. 418, 221 S.E.2d 733 (1976). The hospital has the duty not to obey instructions of a physician which are obviously negligent or dangerous. Byrd v. Hospital, 202 N.C. 337, 162 S.E. 738 (1932). We have suggested that a hospital could be found negligent for its failure to promulgate adequate safety rules relating to the handling, storage and administering of medications, Habuda v. Hospital, ...