Mozingo by Thomas v. Pitt County Memorial Hosp., Inc., 162A91

• Citation: 415 S.E.2d 341,331 N.C. 182
• Decision Date: 22 April 1992
• Docket Number: No. 162A91,162A91
• Court: United States State Supreme Court of North Carolina
• 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.

Page 341

415 S.E.2d 341

331 N.C. 182

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. 162A91.

Supreme Court of North Carolina.

April 22, 1992.

On appeal pursuant to N.C.G.S. § 7A-30 of a decision by a divided panel of the Court of Appeals, 101 N.C.App. 578, 400 S.E.2d 747 (1991), reversing summary judgment for the defendant Dr. Richard John Kazior entered by Griffin, J., at the 21 March 1990 Session of Superior Court, Pitt County. Heard in the Supreme Court on 12 December 1991.

Young, Moore, Henderson, & Alvis, P.A. by Jerry S. Alvis and Brian E. Clemmons, Raleigh, for defendant-appellant.

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

MITCHELL, Justice.

The issue before this Court is whether the Court of Appeals erred in reversing the trial court's grant of summary judgment in favor of the defendant Dr. Richard John Kazior. To resolve this issue, we must decide whether there was a forecast of evidence tending to show that the defendant, in his capacity as an on-call supervising physician, owed a duty of reasonable care to the plaintiffs. For reasons differing from those stated in the opinion of the Court of Appeals, we conclude that the forecast of evidence before the trial court tended to show that the defendant had such a duty, and we affirm the holding of the Court of Appeals.

As summary judgment was entered for the defendant by the trial court, the facts set forth are taken from the forecast of evidence found in allegations in the complaint, the depositions, the stipulations of the defendant Dr. Richard John Kazior and others, and the affidavits in the record on appeal. We express no opinion, of course, as to what the plaintiffs will be able to prove at trial.

In this action, the plaintiff Alton Mozingo, Jr., by his guardian ad litem, seeks money damages from the defendant Dr. Richard John Kazior for injuries allegedly caused by Dr. Kazior's negligent supervision of resident physicians at Pitt County Memorial Hospital ("Hospital"). Mozingo, Jr., alleges that the resident physicians who delivered him at his birth did so negligently, causing him severe injuries. The plaintiff Alton Mozingo, the father of the injured child plaintiff, seeks money damages for the loss of services of his son.

The forecast of evidence before the trial court tended to show that during December 1984 Dr. Kazior was an employee of Eastern OB/GYN Associates ("Eastern"). Eastern had entered into an agreement with the East Carolina University Medical School to provide on-call supervision of the interns and residents in the obstetrics residency program at the Hospital. On the afternoon of 5 December 1984, Sandra Dee Mozingo was admitted to the Hospital for the delivery of her second child, Alton Mozingo, Jr., one of the two plaintiffs in the present case. Two residents in the post-graduate training program in obstetrics treated Sandra Dee Mozingo who was not under the care of a private physician.

At 5 p.m. on 5 December 1984, the defendant Dr. Kazior began his assignment to provide on-call services for the obstetrics residents at the Hospital who were caring for patients. Dr. Kazior remained at his home available to take telephone calls from the residents. Shortly before 9:45 p.m., Dr. Kazior received a telephone call from Dr. Melinda Warren, a second-year resident at the Hospital, informing him that she had encountered a problem with the delivery of Mozingo, Jr. The baby was suffering shoulder dystocia, a condition in which a baby's shoulder becomes wedged in the mother's pelvic cavity during delivery. Dr. Kazior stated that he would be there immediately and left his home for the Hospital located approximately two miles away. When Dr. Kazior arrived at the hospital, the delivery of Mozingo, Jr., had been completed.

On 3 December 1987, the plaintiffs filed an amended complaint alleging inter alia negligent supervision of the obstetrics residents by Dr. Kazior. The plaintiffs alleged that Alton Mozingo, Jr., suffered severe and permanent injuries due to the shoulder dystocia and that Dr. Kazior's negligent supervision of the residents actually performing the delivery proximately caused these injuries. The plaintiffs alleged that Dr. Kazior "failed to make a reasonable effort to monitor and oversee the treatment administered by the defendant, Melinda Warren, and the agents of the Defendant, Hospital." Dr. Kazior filed an answer denying all allegations of negligence on his part.

The defendant Dr. Kazior filed a motion for summary judgment on 6 October 1989 supported by four affidavits, the pleadings, and other material obtained during discovery. Three of the affidavits were given by the heads of the Departments of Obstetrics and Gynecology of other teaching hospitals in North Carolina. The affidavits from the Chairmen of the Departments of Obstetrics and Gynecology of the Bowman-Gray School of Medicine of Wake Forest University, the University of North Carolina School of Medicine, and the Duke University School of Medicine stated that the protocol of their respective medical schools "permitted the Attending On Call physicians to afford coverage during the hours of their assignment by either being present in the hospital or, unless a problem is specifically anticipated, by being present at their residence or other specified place and immediately available to a telephone so as to come immediately to the hospital upon request."

The plaintiffs responded with the sworn affidavit of Dr. William Dillon and the transcript of the deposition of Dr. Dillon, a board-certified obstetrician and an expert witness for the plaintiffs, who stated that an on-call supervising physician should call in periodically during his coverage shift. Dr. Dillon in his affidavit stated that Dr. Kazior had a "responsibility, when he came on call, to find out what obstetrical patients had been admitted to the hospital, their condition and to formulate a plan of management." (Emphasis added). Dr. Dillon in his deposition also stated, "I think in at least a minimum sense a supervising physician needs to make contact sometimes, preferably at the beginning, and maybe a few times in between, as to what is occurring on his service." Dr. Dillon further stated, "I think that what we are talking about is what is proper supervision and what is not proper supervision.... I think that there is a certain standard when one is supervising residents that must be met. If a private physician is going to supervise residents, he must meet those standards." Further, according to Dr. Dillon, Sandra Dee 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 [an extremely large baby]. Therefore, there were very significant known risk factors for this pregnancy which included a known significant risk factor of shoulder dystocia."

The trial court granted summary judgment for the defendant Dr. Kazior on 29 December 1989, and the plaintiffs filed a notice of appeal. Subsequently, the trial court rescinded summary judgment and received into evidence Dr. Kazior's stipulation dated 28 March 1988. Thereafter, the trial court again granted summary judgment in favor of Dr. Kazior on 27 March 1990. The plaintiffs again filed a notice of appeal with the Court of Appeals.

A divided panel of the Court of Appeals reversed the trial court's entry of summary judgment in favor of the defendant Dr. Kazior, concluding that he owed the plaintiffs a duty of care arising out of a contract between Eastern and East Carolina University Medical School. The Court of Appeals concluded, however, that the defendant owed no duty of reasonable care to the plaintiffs based on a doctor-patient relationship because no such relationship existed. For different reasons, we affirm the holding of the Court of Appeals reversing the trial court's entry of summary judgment for the defendant Dr. Kazior.

Dr. Kazior contends that the Court of Appeals erred in reversing the trial court's grant of summary judgment in his favor.

The North Carolina Rules of Civil Procedure provide that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R.Civ.P. 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial. Dickens, 302 N.C. 437, 276 S.E.2d 325. All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

Collingwood v. General Electric Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Summary judgment is a drastic measure and should be used with caution. Williams v. Carolina Power and Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979).

The gravamen of the plaintiffs' claim...