Mozingo by Thomas v. Pitt County Memorial Hosp., Inc.

• Decision Date: 19 February 1991
• Docket Number: No. 903SC438,903SC438
• Citation: 101 N.C.App. 578,400 S.E.2d 747
• Parties: Alton Ray MOZINGO, Jr., by his Guardian Ad Litem, Allen G. THOMAS; and Alton Ray Mozingo v. PITT COUNTY MEMORIAL HOSPITAL, INC., Melinda Warren, Richard John Kazior.
• Court: North Carolina Court of Appeals

Page 747

400 S.E.2d 747

101 N.C.App. 578

Alton Ray MOZINGO, Jr., by his Guardian Ad Litem, Allen G.

THOMAS; and Alton Ray Mozingo v. PITT COUNTY MEMORIAL HOSPITAL, INC., Melinda Warren, Richard

John Kazior.

No. 903SC438.

Court of Appeals of North Carolina.

Feb. 19, 1991.

Narron, Holdford, Babb, Harrison & Rhodes, P.A. by William H. Holdford and Elizabeth B. McKinney, Wilson, for plaintiffs-appellants.

Young, Moore, Henderson & Alvis, P.A. by Jerry S. Alvis, Raleigh, for defendant-appellee Kazior.

GREENE, Judge.

The plaintiffs appeal the trial court's order filed 27 March 1990 granting the defendant's motion for summary judgment.

Viewed in the light most favorable to the plaintiffs, Alton Ray Mozingo, Jr. [Mozingo, Jr.] and his father, the evidence tends to show the following: At some time before 2:00 p.m. on 5 December 1984, Sandra Dee Mozingo [Mozingo] was admitted to Pitt County Memorial Hospital [Hospital] for the delivery of her second child, Mozingo, Jr. She received medical care from the residents and nurses at the Hospital. At the time of her admission Mozingo did not have a private physician.

The Hospital was the teaching hospital for the East Carolina University Medical School [Medical School]. The residents who rendered care to Mozingo were licensed physicians undergoing post-graduate specialty training in obstetrics at the Hospital under the Medical School's residency program. This residency program at the Hospital under which the residents trained was conducted by the Medical School. To provide supervision for the residents, the Medical School contracted with Eastern OB/GYN Associates [Eastern], a private medical practice group in Greenville, North Carolina. Under their contract, Eastern agreed to provide its own physicians for "on call" supervision of the residents training under the residency program. The contract stated that Eastern's employee-physicians could provide supervision by remaining at home during "on call" hours so long as the physicians were immediately available by telephone to respond to the chief resident's requests for assistance regarding obstetric patients admitted to the Hospital. Eastern and the Medical School entered into this contract before Eastern hired Dr. Richard Kazior [defendant] as one of its physicians.

On 5 December 1984, the defendant was a physician employed by Eastern. While the defendant had unrestricted privileges at the Hospital as a "staff physician," he was not employed by either the Hospital or the Medical School. As one of Eastern's physicians, the defendant supervised residents at the Hospital pursuant to Eastern's contract with the Medical School. At 5:00 p.m. on 5 December 1984, the defendant came "on call." By stipulation, the defendant admitted that "he was the Attending Physician on Call for the OB/GYN Service of Pitt County Memorial Hospital with the responsibility for supervision of the OB/GYN residents and interns at the time of the birth of Alton Ray Mozingo, Jr."

After coming "on call," the defendant remained at his home with an open telephone line. The defendant lived approximately two miles from the Hospital. At some time in the early evening, the residents providing care to Mozingo began experiencing difficulties in Mozingo's delivery. One of the residents, Dr. Melinda Warren, telephoned the defendant and informed him that they had encountered a birthing problem called shoulder dystocia. According to the defendant, a shoulder dystocia occurs when "a shoulder of the infant in process of delivery becomes wedged or stuck in the pelvic cavity and constitutes an obstacle to the completion of delivery." Upon receiving the call, the defendant immediately went to the Hospital. However, by the time he arrived, Mozingo had completed her delivery. The defendant's first contact of any kind with Mozingo and the plaintiffs occurred after the delivery. The defendant talked to the Mozingos, observed Mozingo, Jr., and ordered a hemoglobin A one C. The defendant never billed Mozingo or the plaintiffs for any services. The record is silent as to whether Eastern ever billed Mozingo or the plaintiffs for any services.

According to the plaintiffs' expert, Dr. William Dillon, Mozingo "was a known gestational diabetic with extreme obesity and no established estimated fetal weight notwithstanding sonography. As such, there was a known significant risk of a macrosomic baby [a very large baby, weighing over 4000 grams at birth]. Therefore, there were very significant known risk factors for this pregnancy which included a known significant risk factor of shoulder dystocia." As stated previously, the residents encountered a shoulder dystocia in Mozingo's delivery. Dr. Dillon testified that "this was an extremely severe shoulder dystocia," and that as a result of it, Mozingo, Jr. was born with many disabilities, including but not limited to Erb's palsy and phrenic nerve paralysis.

On 3 December 1987, the plaintiffs filed a complaint against the defendant alleging that the defendant's medical malpractice caused the damages suffered by Mozingo, Jr. See Bolkhir v. North Carolina State Univ., 321 N.C. 706, 713, 365 S.E.2d 898, 902 (1988) (when unemancipated minor is injured by another's negligence, parent has claim for loss of child's services during minority and for medical expenses reasonably necessary to treat minor's injuries). More particularly, the plaintiffs allege that the defendant "was negligent in that he deviated from the legally acceptable standards of practice in his lack of supervision of Defendant Melinda Warren and in that his care and case management of Mrs. Mozingo's labor and delivery failed to meet legally acceptable standards of practice." The defendant answered the complaint and filed a motion for summary judgment on 6 October 1989 supported by four affidavits, the pleadings, and other material obtained during discovery. The plaintiffs responded with a sworn affidavit and the transcript of Dr. Dillon's deposition. The trial court granted summary judgment for the defendant on 29 December 1989 and the plaintiffs filed a notice of appeal. However, the trial court later rescinded its prior order, received into evidence the defendant's stipulation discussed above, and granted summary judgment in favor of the defendant, which judgment was filed 27 March 1990.

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The issues are (I) whether the defendant met his burden of proving that he did not owe Mozingo, Jr. a duty of care (A) arising from a physician-patient relationship or (B) arising absent a physician-patient relationship; and (II) whether the defendant met his burden of proving the applicable standard of care and that his supervision of the residents administering care to Mozingo conformed to the applicable standard of care.

As we have recently stated,

[s]ummary judgment is proper where there is no genuine issue of any material fact and the movant is entitled to judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56(c). '[A]n issue is genuine if it can be maintained by substantial evidence.... A fact is material if it would establish any material element of a claim or defense.' ... 'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ... 'In ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party.' ... The movant 'has the burden of showing at least one of the three grounds justifying summary judgment in his favor: (1) "an essential element of plaintiff's claim is nonexistent ... plaintiff cannot produce evidence to support an essential element of his claim, or ... plaintiff cannot surmount an affirmative defense which would bar the claim." '

Raritan River Steel Co. v. Cherry, Bekaert & Holland, 101 N.C.App. 1, 3-4, 398 S.E.2d 889, 890 (1990) (citations omitted). "The burden rests on the movant to make a conclusive showing; until then, the non-movant has no burden to produce evidence." Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986). "Once the moving party meets this burden, the burden is then on the opposing party to show that a genuine issue of material fact exists.... If the opponent fails to forecast such evidence, then the trial court's entry of summary judgment is proper." White v. Hunsinger, 88 N.C.App. 382, 383, 363 S.E.2d 203, 204 (1988) (citation omitted). Summary judgment is such a drastic remedy that it should rarely be granted in negligence cases. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, 69 N.C.App. 164, 165, 316 S.E.2d 318, 319, (disc. rev. denied, 312 N.C. 496, 322 S.E.2d 560 (1984). This is true because " '[e]ven where there is no substantial dispute as to what occurred, it usually remains for the jury to apply the ... [appropriate standard of care] to the facts of the case.' " Id. 69 N.C.App. at 166, 316 S.E.2d at 319 (citation omitted) (emphasis added).

We note initially that the plaintiffs argue in their reply brief that this Court should not consider the terms of the contract between the Medical School and Eastern as testified to by the defendant because the contract was not made a part of the record on appeal and because the defendant has no knowledge of the terms of the contract. We disagree. First, the terms of the contract are a part of the record because the defendant testified to them in an affidavit which has been made a part of the record. Second, although N.C.G.S. § 1A-1, Rule 56(e) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein," the "[f]ailure to make a timely objection to the form of affidavits supporting a motion for summary judgment is deemed a waiver of any objections.... Technical objections based on G.S....