Hart v. Warren

• Decision Date: 20 May 1980
• Docket Number: No. 797SC1037,797SC1037
• Citation: 46 N.C.App. 672,266 S.E.2d 53
• Parties: Benjamin HART, Administrator of the Estate of Robert Earl Battle, Deceased. v. J. M. WARREN, M.D.
• Court: North Carolina Court of Appeals

Page 53

266 S.E.2d 53

46 N.C.App. 672

Benjamin HART, Administrator of the Estate of Robert Earl Battle, Deceased. v. J. M. WARREN, M.D.

No. 797SC1037.

Court of Appeals of North Carolina.

May 20, 1980.

Watson, King & Hofler by R. Hayes Hofler, III, Durham, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James D. Blount Jr. and Nigle B. Barrow Jr., Raleigh, for defendant-appellee.

HILL, Judge.

Appellee contends plaintiff appellant has abandoned in his brief the one properly preserved exception and assignment of error, and, therefore, failed to present any question to this Court; that by abandoning his first appeal and seeking a new trial the appellant was precluded from appealing from rulings made previously by the trial court. See Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975). We do not agree. Once the notice of appeal was given, jurisdiction was transferred from the superior court to the Court of Appeals. In order to properly proceed with plaintiff's motion for a new trial, jurisdiction had to be reestablished in the superior court. This was done on 22 December 1978 by plaintiff's motion for withdrawal of notice of appeal. This simply restored jurisdiction in the trial court, and notice of appeal on 6 April 1979 from judgment on the directed verdict and from the order denying plaintiff's motion for a new trial brought the case before this Court in a proper and timely fashion.

Appellant contends the trial court erred in directing the verdict in favor of the defendant at the end of the plaintiff's evidence. A careful reading of the record leads us to the same conclusion. We must set forth rather extensive facts for proper disposition of the case.

Robert Earl Battle left work on 14 October 1974, complaining of abdominal pain and during the evening was driven to the emergency room of Nash General Hospital. At the hospital a nurse took a preliminary medical history, and the defendant doctor examined Battle for some four or five minutes. Defendant doctor is a general practitioner and was covering the emergency room that night. Battle indicated he had been drinking a pint of alcohol each day for the past ten or twelve days, complained of intermittent stomachache, nausea and vomiting. His temperature, respiration rate, blood pressure, blood work and pulse rate were within normal limits. The abdomen was soft and flat and bowel sounds hyperactive.

Dr. Warren gave decedent a moderately strong pain reliever, diagnosed the condition as alcoholic gastritis, and allowed Battle to go home after prescribing a mild relaxant and anti-pain drug. Battle became progressively worse and was carried to another doctor's office the following afternoon. Battle died two days after the examination by defendant.

The patient was seen by Dr. James E. Bryant in Rocky Mount on the afternoon of 15 October 1974. Dr. Bryant is engaged in family practice and a general practice. Dr. Bryant testified that his diagnosis was pancreatitis, which diagnosis was later confirmed. Dr. Bryant further testified that he was familiar with the standard of care at Nash General Hospital for a family practitioner covering the emergency room. After being presented with a long hypothetical question containing facts to be found by the jury, Dr. Bryant testified on cross-examination that the examination and treatment of Battle by Dr. Warren were in accordance with an acceptable standard of care. On redirect examination, Dr. Bryant testified after listening to another hypothetical question outlining the facts of this case that he would have considered pancreatitis as a possible diagnosis and that a serum amylase test would have helped in the diagnosis of the patient's problems. He mentioned other factual situations where he would not have made such a diagnosis.

Dr. Herbert J. Proctor testified that he was licensed to practice medicine in North Carolina in 1969; that he did his residency and internship at North Carolina Memorial Hospital in Chapel Hill, was board qualified in general and thoracic surgery and thus was an "expert" in these areas. He listed his educational background, teaching and writing experience, and hospital experience. Dr. Proctor further testified that he averaged nine or ten hours a day in the emergency room seeing patients. Dr. Proctor is familiar with standards and practices in communities such as Rocky Mount and hospitals such as Nash General Hospital, having been clinical director for Emergency Medical Services of North Carolina. Proctor stated that he had been in Nash General Hospital; that he is familiar with the standards and practices in communities of that size and in hospitals of that size; and that pancreatitis crosses over into his area of expertise. Dr. Proctor qualified as an expert and testified that the patient died of a combination of pancreatitis and a perforated ulcer. Based on a hypothetical question covering the facts of the case, Dr. Proctor further testified that from a medical point of view, the course of diagnosis and treatment pursued by the defendant, Dr. Warren, is not the course that would have been pursued by a reasonably skillful emergency room physician in a hospital the size of Nash General. Dr. Proctor took issue with the examination of the patient taking only four minutes and the giving of a substantial anti-pain drug which masked the symptoms. The doctor testified that the patient's history revealed a textbook case of the possibility of pancreatitis, and a serum amylase should have been drawn; that in his opinion a serum amylase test would have revealed pancreatitis; that it is unlikely that pancreatitis would have developed over a short period of time; and that Battle should have been admitted to the hospital.

Dr. Proctor further testified that based on the hypothetical question given to him previously, he had an opinion based on a reasonable medical certainty that the defendant Warren's negligence was a cause of Battle's death.

The defendant moved for a directed verdict pursuant to Rule 50, contending there was insufficient evidence before the Court of a failure by defendant to exercise reasonable care in the treatment of the patient, based on the standard acceptable for a general practitioner in the same or similar community. The court adjourned without ruling on the motion and asked the defendant to restate his motion the following day. At that time, the defendant moved for a directed verdict based on Rule 50, contending that the plaintiffs had not proved negligence; had not proved negligence was the proximate cause of death; and had not proved negligence sufficient to go to the jury. The motion was allowed.

It is elementary that in determining the sufficiency of evidence to withstand a Rule 50 motion, all of the evidence which supports the non-movant's claim must be taken as true and considered in the light most favorable to the non-movant, giving the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in its favor. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979).

Justice Parker has stated, that in ruling on a motion for nonsuit,

. . . after all the evidence of plaintiff and defendant is in, the court may consider so much of defendant's evidence as is favorable to plaintiff or tends to clarify or explain evidence offered by plaintiff not inconsistent therewith, but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by plaintiff. Otherwise, consideration would not be in the light most favorable to plaintiff.

Morgan v. Tea Co., 266 N.C. 221, 222-223, 145 S.E.2d 877, 879 (1966).

The courts of the State have repeatedly held that A physician or surgeon who undertakes to render professional services must meet these requirements:

(1) he must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess;

(2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and

(3) he must use his best judgment in the treatment and care of his patient. (Citations omitted.)

If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.

Hunt v. Bradshaw, 242 N.C. 517, 521-2, 88 S.E.2d 762, 765 (1955); Cozart v. Chapin, 39 N.C.App. 503, 251 S.E.2d 682, disc. rev. denied 297 N.C. 299, 254 S.E.2d 920 (1979).

In Belk v. Schweizer, 268 N.C. 50, 56, 149 S.E.2d 565, 570 (1966), in an opinion by then Chief Justice Parker, we find the following:

A qualified physician or surgeon does not guarantee or insure...