Jackson v. Bumgardner

• Decision Date: 29 August 1986
• Docket Number: No. 670A84,670A84
• Citation: Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (N.C. 1986)
• Court: North Carolina Supreme Court
• Parties: Varonica L. JACKSON and Rufus H. Jackson v. Heath D. BUMGARDNER.

Page 743

347 S.E.2d 743

318 N.C. 172

Varonica L. JACKSON and Rufus H. Jackson v.Heath D. BUMGARDNER.

No. 670A84.

Supreme Court of North Carolina.

Aug. 29, 1986.

Nance, Collier, Henderson & Wheless by James R. Nance, Jr., Fayetteville, for plaintiff-appellees.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson, Jodee Sparkman King, and William H. Moss, Raleigh, for defendant-appellant.

FRYE, Justice.

The question before this Court is whether plaintiffs' complaint states a claim recognizable in this State for medical malpractice and breach of contract where the injury complained of is defendant's improper failure to replace an intrauterine device, resulting in plaintiff wife's pregnancy and the consequent birth of a healthy child.We hold that the complaint states a recognizable claim for medical malpractice as to plaintiff wife.

In January 1979, plaintiffVaronica Jackson consulted defendant physician because she was experiencing abnormal uterine bleeding.She was admitted to Betsy Johnson Memorial Hospital on 29 January 1979 where defendant performed a D and C (dilation and curettage) and a cervical biopsy.She continued to have problems, and on 3 April 1979, defendant again operated on the plaintiff for a suspected ovarian cyst.

At the time, plaintiff wife was relying on an intrauterine device (IUD) for prevention of pregnancy.Plaintiffs allege that they could not afford to have another child, that they both discussed their situation with defendant, and that before each operation, defendant promised both of them to replace the IUD if it became necessary to remove it during the surgery.Plaintiff wife alleges that she was informed that this precaution had indeed been taken and that she continued to have the IUD's protection.On 22 July 1980, according to plaintiffs' complaint, they discovered that plaintiff wife was pregnant and that defendant had not in fact retained or replaced her IUD.The plaintiffs had a healthy baby the following February.

Plaintiffs brought suit against defendant on 22 July 1981, alleging medical malpractice and breach of contract and seeking damages for plaintiff wife's pregnancy and for the cost of rearing the new baby.Defendant answered, denying most of plaintiffs' allegations and seeking to have plaintiffs' complaint dismissed under Rule 12(b)(6) for failure to state a claim upon which relief could be granted.After a hearing at the 14 November 1983 Civil Session of Superior Court, Harnett County, Bailey, J., dismissed plaintiffs' complaint on that basis.Plaintiffs appealed to the Court of Appeals, which reversed.

On a motion to dismiss for failure to state a claim upon which relief can be granted, N.C.R.Civ.P. 12(b)(6), all allegations of fact are taken as true but conclusions of law are not.SeeSutton v. Duke, 277 N.C. 94, 176 S.E.2d 161(1970).Dismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim.Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222(1985).

A.

With this standard in mind, we turn first to plaintiffs' tort claim.To state a claim for medical malpractice, plaintiff must allege a breach of duty by the physician and damages proximately resulting from this breach.The scope of a physician's duty to his patient is set forth by Justice Higgins in Hunt v. Bradshaw, 242 N.C. 517, 521-22, 88 S.E.2d 762, 765(1955):

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....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.

(Citations omitted.)The first requirement is further refined by the "same or similar communities" standard and N.C.G.S. § 90-21.12.Wall v. Stout, 310 N.C. 184, 192 n. 1, 311 S.E.2d 571, 577 n. 1(1984).

The pertinent parts of plaintiffs' complaint that relate to their malpractice claim are:

III.That at the time complained of the Defendant held himself out to skillfully practice and to follow up to date standards currently used by medical doctors practicing with [sic] the Dunn, North Carolina, area as well as the North Carolina Medical Community in general, and that he further held himself out as a skillful practitioner in the surgical placement of intrauterine devices commonly known as IUD [sic].

IV.That on or about January 30, 1979, and at times prior thereto, the Plaintiff, VARONICA L. JACKSON, was a patient of the Defendant and that she sought out the services of the Defendant because of uterine bleeding.

....

VII.That on January 29, 1979, VARONICA L. JACKSON, was admitted to Betsy Johnson Memorial Hospital and was operated on by the Defendant and as a result was given a D and C as well as a biopsy of the cervix.

VIII.The [sic] prior to the D and C being given by the Defendant, the Defendant promised that if he had to take out the intrauterine device that was already located within the Plaintiff that he would place it back within the Plaintiff, and represented to both Plaintiffs that there would be no difficulty with regard to the replacement of the intrauterine device.

IX.That thereafter in April of 1979the Plaintiff, VARONICA L. JACKSON, continued to have problems which manifested themselves as pain in the right lower quadrant; that she again sought the services of the Defendant who again selected the hospital and staff for the performance of another operation having diagnosed her as having an ovarian cyst.

....

XI.That at the time of the said operation in April, the Plaintiffs and each of them discussed with the Defendant the retention of the intrauterine device in the Plaintiff, VARONICA L. JACKSON, and that the Defendant repeatedly represented to the Plaintiffs that the intrauterine device would remain therein.

XII.That thereafter the Plaintiff was informed, believed, and alleges that she was protected from the possibility of pregnancy by the intrauterine device located within her.

XIII.That thereafter and on July 22, 1980, the Plaintiffs discovered that the said VARONICA L. JACKSON was pregnant and further discovered that the intrauterine device purportedly retained in the Plaintiff had not in fact been retained.

XIV.That the Plaintiffs already had the responsibility of other children and were unable to financially bear the responsibility of additional children which facts were discussed and which were well known to the Defendant.

XV.That the Defendant was negligent in failing to warn the Plaintiffs and each of them of the removal of the intrauterine device, the failure to advise them that the intrauterine device had been removed, that she was subject to become pregnant, and that the Defendant failed to replace the intrauterine device as he had agreed to do.

XVI.That as a direct result of the negligence of the Defendant, the Plaintiff became pregnant and a child was born to the Plaintiffs in February of 1981.

XVII.That as a further result of the negligence of the Defendant and his failure to replace the intrauterine device, the Plaintiffs have been caused to suffer damages for medical expenses for the Plaintiff, VARONICA L. JACKSON, for the birth of said child, for the general cost and maintenance of said minor child from the date of his birth until such time as he shall become of legal age or emancipated, and have thus been damaged in a sum in excess of Ten Thousand and no/100 ($10,000.00) Dollars.

While plaintiff wife sought defendant's assistance for uterine bleeding, according to the complaint she also informed him that she did not want to lose the protection of the IUD as a result of his medical treatment.There are many reasons for a woman wishing to avoid pregnancy, some of which are matters of personal inclination and some of which are related to health.For some women pregnancy can create a serious and foreseeable risk of death.Whatever a woman's reason for desiring to avoid pregnancy, when a physician undertakes to provide medical care or advice to her for that purpose, he or she must provide the professional services in that case, just as in the rendering of professional services in any instance, according to the established professional standards.Just as in any other case, a failure to measure up to the established standards results in negligence which becomes actionable if the negligence proximately causes legal injury.

Applying the traditional tort principles set forth above to the allegations in plaintiffs' complaint, it is clear that the complaint alleges sufficient facts to withstand a motion to dismiss under Rule 12(b)(6) as to plaintiff wife.The complaint alleges that she consulted defendant in his professional capacity for medical treatment for uterine bleeding, that defendant undertook to treat her by performing operations on two separate occasions, and that defendant promised that her intrauterine device would be replaced, if it became necessary to remove it during the operations.These facts are sufficient to establish that plaintiff wife was defendant's patient and that he therefore owed her a legal duty.The complaint alleges that defendant completely failed to replace the IUD and further failed to warn plaintiff wife of this omission, despite the fact that he knew she relied upon it...