Cox v. Haworth, Nos. 8118SC192

Docket NºNos. 8118SC192
Citation283 S.E.2d 392, 54 N.C.App. 328
Case DateOctober 20, 1981
CourtCourt of Appeal of North Carolina (US)

Page 392

283 S.E.2d 392
54 N.C.App. 328
Alfred W. COX
Chester C. HAWORTH, Jr., M.D., and High Point Memorial
Hospital, Inc.
Avis Helen COX
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.

Page 394

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.

[54 N.C.App. 330] Askew's, Inc. v. Cherry, 11 N.C.App. 369, 372, 181 S.E.2d 201, 203 (1971) (citations omitted).


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.


We also find that the Hospital was entitled to summary judgment on the issue of corporate negligence. Under the doctrine of [54 N.C.App. 331] 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


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13 cases
  • Daniels v. Durham County Hosp. Corp., No. COA04-338.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 19 Julio 2005
    ...even though Ms. Koonce-Daniels' delivery was performed by her private physician. This Court is, however, bound by Cox v. Haworth, 54 N.C.App. 328, 283 S.E.2d 392 (1981). In Cox, this Court This Court has held that if circumstances warrant, a physician has a duty to warn a patient of consequ......
  • Wells v. Storey
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    ...113 N.M. 736, 832 P.2d 797 (1992); Nisenholtz v. Mount Sinai Hosp., 126 Misc.2d 658, 483 N.Y.S.2d 568 (Sup.Ct. 1984); Cox v. Haworth, 54 N.C.App. 328, 283 S.E.2d 392, 395-96 (1981); Kershaw v. Reichert, 445 N.W.2d 16, 17-18 (N.D.1989); Goss v. Oklahoma Blood Inst., 856 P.2d 998, 1007 (Okla.......
  • Clark v. Perry, No. 9221SC314
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    • 19 Abril 1994 396, this Court has not as yet carved from that broad general obligation the specific duty plaintiff herein asserts. Cox v. Haworth, 54 N.C.App. 328, 332-33, 283 S.E.2d 392, 395-96 (1981). Moreover, we have expressly declined to extend the doctrine of corporate negligence in order to imp......
  • Campbell By and Through McMillan v. Pitt County Memorial Hosp., Inc., No. 863SC556
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    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Febrero 1987
    ...performed ... when the patient [had been] admitted to the hospital for an operation under the care of his privately retained physician." 54 N.C.App. 328, 331, 283 S.E.2d 392, 394-95 (1981) (emphasis added). Cox is a summary judgment [84 N.C.App. 330] case, and it is distinguishable from the......
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