Lowery v. Newton

• Decision Date: 02 June 1981
• Docket Number: No. 8016SC962,8016SC962
• Citation: Lowery v. Newton, 278 S.E.2d 566, 52 N.C.App. 234 (N.C. App. 1981)
• Court: North Carolina Court of Appeals
• Parties: Bonnie Faye LOWERY v. Walter M. NEWTON, Jr., M. D. and Pinehurst Surgical Clinic, P. A.

Page 566

278 S.E.2d 566

52 N.C.App. 234

Bonnie Faye LOWERY v. Walter M. NEWTON, Jr., M. D. and Pinehurst Surgical Clinic, P. A.

No. 8016SC962.

Court of Appeals of North Carolina.

June 2, 1981.

McLeod & Senter by Joe McLeod and William L. Senter, Fayetteville, for plaintiff-appellee.

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

HILL, Judge.

Defendants contend in their first assignment of error that the trial court erred in denying their motion for judgment notwithstanding the verdict.

Plaintiff's complaint alleged negligence arising out of the performance of professional medical services. In order to withstand defendants' motion for a directed verdict, plaintiff must offer evidence which establishes the following elements: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages. Failure to establish sufficient evidence on any one element entitles the defendant to a directed verdict. See Prosser, Law of Torts, § 30. Also see G.S. 90-21.12.

Defendants contend that the standard of care in medical malpractice actions is established in part by G.S. 90-21.12 and requires the introduction of expert medical testimony. This statute became law in 1975 and provides as follows:

§ 90-21.12. Standard of health care.--In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

Admittedly, the phrasing of the questions to Dr. Keranen to establish the standard of care did not follow the statute verbatim. Dr. Keranen testified that the removal of the tumor under the circumstances was a failure on the part of Dr. Newton to exercise that degree of care, professional skill, and judgment which a reasonable and prudent physician would have exercised under the same or similar circumstances, in the same or similar community. To contend that the substitution of "under the same or similar circumstances" in lieu of "with similar training and experience" is significant, places form over substance. Such technical error is harmless. However, the breach of the standard of care is clearly established by Dr. Keranen's testimony that the best treatment for the tumor was to leave it alone and that if such surgery was required, it should have been done by a neurosurgeon.

Defendants argue in their next assignment of error that plaintiff has failed to establish defendant Newton's negligence as a proximate cause of plaintiff's injuries. Defendants contend that not only is it incumbent upon plaintiff to show that she currently suffers from a condition caused in part by the alleged negligent act of defendant Newton but also to offer evidence that she would never have developed her present condition as a result of the pre-existing condition's having run its natural course of development, absent the intervention of the negligent act of the defendant. We do not agree. An injured person is entitled to recover all damages caused by defendant's negligence. When plaintiff's pre-existing physical or mental condition is aggravated or activated by a subsequent act, defendant Newton is liable to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's pre-existing condition. See Potts v. Howser, 274 N.C. 49, 161 S.E.2d 737 (1968).

Defendants point out that plaintiff at one time had been a quadraplegic, had eight operations on her neck as a result of the disease process, and that her left side was weaker than her right side. Defendants overlook the real damage plaintiff suffered as a result of the operation paralysis of her arm and shoulder. We find nowhere in the record any evidence that prior existing conditions, running a normal course would have resulted in injuries which plaintiff sustained as a result of damage done by defendant Newton in surgery. Plaintiff has no obligation to negate a remote possibility of loss of use of her arm and shoulder. The cases cited by defendants are all distinguishable. This assignment of error is overruled.

Next, defendants bring forth seventeen assignments of error based upon thirty-eight duly preserved exceptions to the introduction of various portions of the testimony, contending this Court should reverse the judgment of the trial court and remand the case for a new trial. We have considered all of the assignments and discuss below a representative few.

ERRORS IN THE INTRODUCTION OF EXPERT TESTIMONY

Defendants argue that Dr. Keranen was not competent to testify regarding the standard of care established in the defendant Newton's field of practice. Dr. Keranen was tendered as a medical expert, specializing in the field of neurological surgery.

In malpractice cases the applicable standard of care must be established by other practitioners in the particular field of practice or by other expert witnesses equally familiar and competent to testify to that limited field of practice. Whitehurst v. Boehm, 41 N.C.App. 670, 677, 255 S.E.2d 761 (1979). Defendants contend Dr. Keranen could not testify as an expert, but rather that a plastic surgeon should have been used to establish the standard of care in the instant case. We disagree.

There is some overlapping in the various areas of health care. Dr. Keranen testified that he was graduated from Duke Medical School and did a year of surgical internship at Duke Hospital. Thereafter, he did a rotating internship at Duke University where he performed general surgery and plastic surgery among other things. Dr. Keranen testified that he rotated from one type of surgery to another. Thereafter, he went to a neurological residency at the University of Vermont. He was tendered as a medical expert, specializing in the field of neurological surgery.

The overriding area of medical care before us is surgery--not plastic surgery alone or neurological surgery alone. The operation involved some expertise by the surgeon in both areas. The prior experience and training of Dr. Keranen as a general surgeon and plastic surgeon is sufficient to qualify him to testify as an expert for the purpose of establishing the standard of care and breach thereof required in the case before us. This assignment of error is overruled.

Next, defendants contend the trial court erred in allowing Dr. Keranen to testify as to his opinion of the failure of Dr. Newton to meet the standard of care, the cause of injury, and his opinion as to the injury's permanence without first revealing the factual basis for his opinion. It is well settled that an expert may not state his opinion based upon facts not within his personal knowledge without first requiring the examiner properly to propound a hypothetical question. Todd v. Watts, 269 N.C. 417, 152 S.E.2d 448 (1967). Succinctly stated, the rule is that the expert must base his opinion upon facts within his own knowledge, or upon a hypothesis of the finding by the jury of certain facts recited in the question. Summerlin v. R.R., 133 N.C. 550, 554, 45 S.E. 898 (1903).

We note from the record that Dr. Keranen had been plaintiff's attending physician on a regular basis since 1971 and had seen her during the month immediately preceding the operation by defendant Newton. Dr. Keranen also saw plaintiff during the week after the operation. It is apparent that Dr. Keranen was testifying from his personal knowledge of the physical condition of his patient. Admittedly, some of the questions could have been more aptly stated, but deviation from the norm was harmless error.

At trial, plaintiff's counsel asked Dr. Keranen if he had an opinion as to the cause of the paralysis which he found in plaintiff's left shoulder and arm when he examined her on 10 May 1976. This question was material in order to establish proximate cause. The defendants contend the trial judge erred in allowing plaintiff's counsel to ask Dr. Keranen what actually caused the injury, rather than questioning the witness as to what could have caused the injury. We find no error. When an expert witness testifies as to facts based upon his personal knowledge, he may testify as to his opinion.

"(I)f the expert has a positive opinion on the subject, he should be able to express it without the 'could' or 'might' formula." Taylor v. Boger, 289 N.C. 560, 565, 223 S.E.2d 350 (1976), citing Mann v. Transportation Co. and Tillett v. Transportation Co., 283 N.C. 734, 198 S.E.2d 558 (1973).

Defendants next point to several...