Maloney v. Wake Hospital Systems, Inc., 7910SC446
| Decision Date | 19 February 1980 |
| Docket Number | No. 7910SC446,7910SC446 |
| Citation | 45 N.C.App. 172,262 S.E.2d 680 |
| Parties | Beverly MALONEY v. WAKE HOSPITAL SYSTEMS, INC. |
| Court | North Carolina Court of Appeals |
Sanford, Adams, McCullough & Beard by J. Allen Adams and Catherine B. Arrowood, Raleigh, for plaintiff-appellant.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson, Raleigh, for defendant-appellee.
Plaintiff has made numerous assignments of error regarding the trial court's exclusion of evidence, allegedly prejudicial remarks in the presence of the jury, charge to the jury, failure to require the reading of a portion of the deposition of one of defendant's witnesses, and precluding plaintiff from showing an exhibit to the jury during plaintiff's closing argument.
The principal question we determine in this appeal is whether an expert who is not a medical doctor may give expert opinion testimony as to the cause of a physical injury.
Plaintiff called as her first expert witness Ms. Judy Atkins. Ms. Atkins' credentials her education, experience, and skills are directly at issue in resolving the question before us, and we summarize them here now. Ms. Atkins obtained an Associate Degree of Medicine at Central Piedmont Community College. Subsequently, she completed three years of nurses training at Charlotte Memorial Hospital, following which she attended school at the University of North Carolina at Chapel Hill. She was licensed as a registered nurse in 1969. In February 1972, she was employed as a staff nurse in acute care medicine at North Carolina Memorial Hospital. In 1973, she became a nursing supervisor at Memorial Hospital and was appointed coordinator of the I.V. therapy division. Her duties there included assisting in the organization and implementation of an I.V. team and working with the I.V. mixture service at Memorial. During her employment at Memorial, she served as president of the American Society of Intravenous Therapy and she participated in establishing a program to exchange ideas and presentations by physicians and pharmacists for other hospitals in North Carolina. Several of those meetings were held at Wake Medical Center. She assisted in establishing an I.V. therapy program at Wake Medical Center. Wake Memorial Hospital adopted an I.V. therapy manual almost identical to the one she developed for the University of North Carolina. Ms. Atkins continued to practice nursing and I.V. therapy until September 1976, when she entered the School of Pharmacy of the University of North Carolina at Chapel Hill. At the time of the trial of this action, she was completing the equivalent of her fifth year of pharmacy school after just three years of study. Her study in pharmacy school related to her previous experience in I.V. therapy. During her experience, she has consulted with many pharmaceutical companies on I.V. administration and practices, and has served on an ad hoc committee of the United States Food and Drug Administration Center for Disease Control and the Pharmacy Appeal Convention for setting standards for preparation of I.V. drugs and on a similar committee whose purpose was to recommend national procedural standards for I.V. administration.
Following this recitation of credentials, counsel for plaintiff confronted Ms. Atkins with a hypothetical question asking if she had an opinion as to whether plaintiff's injury could or might have resulted from the administration of undiluted potassium chloride directly into the tube. The trial court sustained defendant's objection to the question. At this point in the trial, the record shows that the following events occurred.
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(JURY RETIRES TO THE JURY ROOM.)
A. True.
Q. as a result of your training and experience are you familiar with the injuries that may result, not the diagnosis, diagnosing of such injuries but what type of injuries may result from the improper administration of potassium chloride in I.V. solution?
A. Yes.
Q. And have you seen specifically in the course of your studies and experience seen (Sic ) what type of injuries result from such administration?
A. Yes.
Q. And has that been part of your training as such?
A. Both. I have both seen it in practice and had it taught to me in my educational process.
Q. So you do not diagnose the injury but once you see medical records as to what injury exists, do you feel that you are qualified to know whether that injury, particular injury could have come from a particular I.V. procedure?
A. Specifically from I.V. administered drugs I can discuss those things that might happen.
Q. And is it your duty to be familiar with parenteral fluids and their effects?
A. As a nurse, yes.
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Q. I will rephrase the question. Is it your duty to be familiar with I.V. administered fluids and their effects?
A. It is the duty of all nurses to be familiar with them because they are the people who administer them. It is not the pharmacists or the physicians.
Q. And are you familiar with the effect of potassium chloride injected into the tissue undiluted?
A. Yes.
Q. And it is not your job to diagnose a particular condition as found but once a doctor diagnoses it as being a particular type of a burn, is it within your training to be able to form an opinion as to what might have caused that in the way of I.V. fluids?
A. Yes.
Q. All right. So I would like to ask the question again.
COURT: Still sustained.
Had she been allowed to answer, Ms. Atkins would have testified that, in her opinion, the burn suffered by plaintiff was caused by undiluted concentrated bolus of potassium chloride flowing from the I.V. bag into the tube and then administered into the tissue in plaintiff's hand.
Plaintiff argues that the trial court erred in excluding Ms. Atkins' opinion testimony as to causation of plaintiff's injury. We agree. In North Carolina, the opinion testimony of an expert witness is competent if there is evidence to show that, through study or experience, or both, the witness has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject of his testimony. State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972).
We note that with respect to whether a skilled or expert witness possesses sufficient qualifications to be permitted to testify as to his opinion,
. . . the unsound rule has sometimes been laid down that the witness must be one who employs his skill Professionally or Commercially . . . . But the only true criterion is: On This subject can a jury from This person receive appreciable help? In other words, the test is a relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any class of persons acting professionally.
7 Wigmore on Evidence § 1923, p. 21 (3d ed. 1940). See also, McCormick on Evidence § 13, pp. 29-30 (2d ed. 1972); 1 Stansbury's N.C. Evidence § 132,...
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