Donavant v. Hudspeth

• Decision Date: 29 August 1986
• Docket Number: No. 429PA85,429PA85
• Parties: Lewis W. DONAVANT v. Allen S. HUDSPETH, M.D.
• Court: North Carolina Supreme Court

Page 797

347 S.E.2d 797

318 N.C. 1

Lewis W. DONAVANT v. Allen S. HUDSPETH, M.D.

No. 429PA85.

Supreme Court of North Carolina.

Aug. 29, 1986.

Young, Haskins, Mann, Gregory & Young by Robert W. Mann, Martinsville, Va., and Cofer & Mitchell, P.A. by Eddie C. Mitchell, Winston-Salem, for plaintiff-appellee.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by J. Robert Elster, Michael L. Robinson and J. Stephen Shi, Winston-Salem, for defendant-appellant.

BILLINGS, Justice.

In March of 1979, the plaintiff, then age 43, consulted Dr. Joseph Gaddy, a cardiologist in Winston-Salem, because of chest pain (angina). Dr. Gaddy referred the plaintiff to Dr. Fred Kahl, a cardiologist at North Carolina Baptist Hospital in Winston-Salem, for tests to determine whether coronary bypass surgery was indicated. Dr. Kahl concurred with Dr. Gaddy that the bypass operation was appropriate.

Dr. Kahl recommended the defendant, a surgeon at North Carolina Baptist Hospital, to perform the surgery. The seven-and-one-half-hour bypass procedure was performed on 29 March 1979. Dr. Kahl did not attend or participate in the surgical procedure. Shortly after the surgery was completed, Dr. Kahl was called to the hospital where he performed a cardiac catheterization on the plaintiff. A cardiac catheterization is a procedure within the peculiar expertise of cardiologists and results in angiogram films, a type of X-ray moving picture of the bypass grafts. These films were reviewed by Dr. Kahl and the defendant and on 2 October 1979 were acquired by Dr. Gaddy who mailed them to Dr. Usher, a cardiologist in South Carolina. The films apparently were lost when Dr. Usher mailed them back to Dr. Gaddy addressed to Baptist Hospital and as a result were not available for trial. The parties stipulated that the films were lost and that neither party contends that the other intentionally lost or destroyed them. By 6 June 1979 when another cardiac catheterization was performed, three of the five grafts had become occluded. According to the plaintiff's evidence, in 1982 four of the five grafts were occluded and the plaintiff was again operated on by a surgeon in Milwaukee, Wisconsin. Also according to the plaintiff's evidence, at the time of trial he was permanently and totally disabled to work although the second bypass procedure was successful and his health was slowly improving.

Plaintiff offered testimony by Dr. Gaddy that Dr. Gaddy had reviewed the angiogram films taken on the evening after the first bypass procedure and that in his opinion the films showed that the veins had been put in "backwards" or "unreversed"; that is, in such a way that the valves in the veins, if competent, would obstruct the blood flow to the heart.

Dr. Dudley Johnson, a cardiac surgeon who in 1982 performed the second bypass procedure on the plaintiff, testified that in his opinion the vein grafts had been sewn in in an unreversed fashion during the 29 March 1979 bypass and that the failure properly to reverse the grafts contributed to the grafts' closing.

The defendant denied that the veins were sewn in backwards or that he was ever concerned that they might have been sewn in backwards. The defendant also offered evidence to the effect that to sew in backwards a vein with incompetent or nonoperating valves would not make any difference since such valves would not obstruct blood flow.

The parties agreed to a nine-member majority verdict. The jury, by a nine-to-two vote (the record does not indicate why there were only eleven members on the jury) rendered a verdict in favor of the defendant on the liability issue.

The plaintiff assigns as error the rulings of the trial judge that certain evidence offered by the plaintiff was inadmissible. The proffered evidence consisted of the following:

1. Testimony by Dr. Gaddy regarding the substance of a telephone conversation between Dr. Gaddy and Dr. Kahl concerning the plaintiff two or three days after the 29 March 1979 bypass surgery. Dr. Gaddy would have said that Dr. Kahl told him that the post-surgery cardiac catheterization was done because of concern that the veins had been placed in backwards; that although the catheterization showed that the veins were indeed in backwards, because the veins were incompetent and the blood flow was adequate, Dr. Kahl and Dr. Hudspeth decided not to risk reoperation.

2. One sentence from each of six reports or letters contained in the hospital records relating to the plaintiff as follows:

A. In a report of the results of the 29 March 1979 cardiac catheterization, prepared by "Lynn Orr, M.D. for Frederic R. Kahl, M.D.," and signed by Dr. Kahl, a sentence stating that "The patient did well both intra and postoperatively, but Dr. Hudspeth apparently was concerned about the possibility that the saphenous vein grafts had been sutured in unreversed, and for this reason this emergency procedure was performed."

B. In a letter dated 2 April 1979 from Dr. Kahl to Dr. Gaddy, a statement that "Because of concern that the saphenous vein grafts were not reversed when they were inserted, Dr. Hudspeth asked me to perform a repeat arteriogram immediately after surgery."

C. In an 11 June 1979 letter from Dr. Kahl to Dr. Gaddy reporting the results of a 4 June 1979 admission and 6 June 1979 cardiac catheterization, a statement in the history portion of the letter that: "Because of the question about whether the vein grafts had been reversed at the time of surgery, he underwent selective graft angiography several hours following his surgery and all grafts were patent and each of the 5 vessels bypassed were seen."

D. A part of a history of present illness in an admission history and report of physical examination on 4 June 1979 signed by Dr. Kahl stating: "The patient was evaluated with a second catheterization for coronary angiography on the same day several hours after surgery as there was some question as to whether the veins had been placed with the grafts in reverse position (i.e. with valves obstructing the flow)."

E. In a report of the 6 June 1979 cardiac catheterization results, a statement, referring to the earlier bypass, that: "The patient did well both intra and postoperatively but Dr. Hudspeth apparently was concerned about the possibility that the saphenous vein grafts had been sutured in unreversed and for this reason emergency arteriograms of the bypass grafts were performed on the night of surgery."

F. A portion of a discharge summary following the 4 June 1979 admission, prepared by Dr. Kahl, stating that: "The patient had a five-vessel repair and several hours after his surgery there was some question of whether the veins had been reversed and coronary angiography revealed that there was good flow through all the grafts."

I.

We first consider the holding by the Court of Appeals that the hospital records were admissible as substantive evidence under the business records exception to the hearsay rule. Because this case was tried during the 18 July 1983 session of Forsyth County Superior Court, in considering this question we apply the law of evidence as it existed prior to the 1 July 1984 effective date of the North Carolina Rules of Evidence, N.C.G.S. Chapter 8C.

This Court has long recognized a rule which allows the admission, over an objection based upon the prohibition of hearsay evidence, of hospital records as entries made in the regular course of business. 1 Brandis on North Carolina Evidence § 155 (1982). Simms v. Insurance Co., 257 N.C. 32, 125 S.E.2d 326 (1962). In Sims, this Court stated that the requirements for admission of hospital records are:

The hospital librarian or custodian of the record or other qualified witness must testify to the identity and authenticity of the record and the mode of its preparation, and show that the entries were made at or near to the time of the act, condition or event recorded, that they were made by persons having knowledge of the data set forth, and that they were made ante litem motam. The court should exclude from jury consideration matters in the record which are immaterial and irrelevant to the inquiry, and entries which amount to hearsay on hearsay.

Id. at 35, 125 S.E.2d at 329.

The simple fact that a record qualifies as a business record does not necessarily make everything contained in the record sufficiently reliable to justify its use as evidence at trial. See Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964) (another point in this case was disapproved by McPherson v. Ellis, 305 N.C. 266, 287 S.E.2d 892 (1982)).

The defendant filed a motion in limine to prohibit the plaintiffs from tendering the portions of medical records signed jointly or singly by Drs. Orr and Kahl "reciting as 'history' that a cardiac catherization [sic] test was requested on the evening of March 29, 1979, because 'Dr. Hudspeth apparently was concerned about the possibility that the saphenous vein grafts had been sutured in unreversed,' or words to that effect." The grounds for the motion were that Dr. Hudspeth had denied under oath ever saying or even thinking that the veins might have been sewn in unreversed; Dr. Orr testified in deposition that he did not obtain the information from Dr. Hudspeth, Dr. Hudspeth had never made any such statement to him, and Dr. Orr had no personal knowledge of the information contained in the report; and that Dr. Kahl testified under oath that he had no discussions with Dr. Orr about the history portion of the 29 March catheterization report and had no recollection of Dr. Hudspeth stating to him that the catheterization was needed because of concern that the veins might have been put in unreversed. There is no indication in the record of a ruling on the motion in limine.

When the matter came on for trial before Judge Long and a jury, the plaintiff tendered Plaintiff's Exhibit 2 which consisted of the unexpurgated medical reports which are the subject of the defendant's objection. Plaintiff's Exhibit 2 was...