Nelson v. Patrick

• Decision Date: 19 February 1985
• Docket Number: No. 843SC465,843SC465
• Citation: Nelson v. Patrick, 326 S.E.2d 45, 73 N.C.App. 1 (N.C. App. 1985)
• Court: North Carolina Court of Appeals
• Parties: Lou S. NELSON v. Simmons I. PATRICK; John E. Flournoy; Gwendolyn S. Rombold and Kinston Radiological Associates, P.A.

Page 45

326 S.E.2d 45

73 N.C.App. 1

Lou S. NELSON v. Simmons I. PATRICK; John E. Flournoy; Gwendolyn S. Rombold and Kinston Radiological Associates, P.A.

No. 843SC465.

Court of Appeals of North Carolina.

Feb. 19, 1985.

Narron, Holdford, Babb, Harrison & Rhodes by William H. Holdford, Wilson, and James C. Lanier, Jr., Greenville, for plaintiff-appellee.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Timothy P. Lehan and James D. Blount, Jr., Raleigh, for defendants-appellants.

WHICHARD, Judge.

Defendants contend the court erred in allowing plaintiff's expert witness, Dr. Montana, to testify about the standard of medical care and acceptable practice in Chapel Hill. They argue that no evidence showed that Chapel Hill was a community similar to Kinston, where defendants practiced, and that therefore Dr. Montana's testimony was irrelevant and its admission was prejudicial.

Plaintiff's first evidence was the following sworn testimony of defendant Patrick from his deposition:

Q. To your knowledge, Dr. Patrick, in November, 1976, in those communities which have been named, that is to say, Wilson, Greenville, Rocky Mount, Goldsboro, New Bern, Jacksonville, Wilmington, Fayetteville, Raleigh, Durham and Chapel Hill, was there any difference in the standards of practice in the different communities?

A. To what extent are you talking about standards?

Q. I assume that you have standards in your profession?

A. Yes, sir.

Q. And attempt to adhere to as acceptable medical practices?

A. I wouldn't think there is any difference in what is accepted as accepted medical practice.

Q. Of the communities which have been named, which of them do you consider communities similar to Kinston as far as the standard of medical care?

A. Is this overall medical care?

Q. In your particular field?

A. In my field?

Q. Of therapeutic radiology?

A. New Bern. Goldsboro. Of course, the teaching institutions, and Wilmington.

Q. By teaching institutions, you're referring to the University of North Carolina Medical School and Duke University Medical Center?

A. Yes, sir.

This testimony, admitted without objection, was sufficient to show that Chapel Hill and Kinston were similar communities with respect to the standards of practice among therapeutic radiologists in November 1976 when the alleged negligence occurred. Since evidence had been admitted showing that the two communities were similar, evidence concerning the standards of medical practice in Chapel Hill among members of the same health care profession as defendants in November 1976 was clearly relevant. See G.S. 90-21.13(a). Defendant Patrick testified that he was a board certified radiologist practicing therapeutic radiology. Dr. Montana, who was accepted as a medical expert specializing in therapeutic radiology, testified specifically about the standards of practice among board certified radiologists practicing therapeutic radiology in Chapel Hill in 1976; therefore, his testimony was relevant and was properly allowed.

Defendants contend the court erred in allowing plaintiff's referring gynecologist, Dr. Satterfield, who testified that he had seen only a few cases of bowel damage caused by radiation, to testify further that the bowel damage plaintiff suffered was greater than any he had seen. They argue that the probative value of this testimony was outweighed by its prejudicial effect. We find the testimony relevant to show the extent to which plaintiff was damaged by the radiation treatments. "Relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it." 1 H. Brandis, North Carolina Evidence, Sec. 80 at 294 (2d rev. ed. 1982).

Defendants contend the court erred in refusing to permit defense counsel to ask Dr. Satterfield about a notation in his medical records concerning plaintiff's first visit with him. The notation indicated that plaintiff had asked him not to tell her husband that she had been taking birth control pills. The only relevance of the excluded evidence was to suggest that plaintiff was of bad character. Evidence of the bad character of a party to a civil action is generally inadmissible. 1 H. Brandis, North Carolina Evidence, Sec. 103 at 385 (2d rev. ed. 1982). The court thus properly excluded this evidence.

Defendants contend the court erred in refusing to allow Dr. Satterfield to testify about the advice he was given by a cancer specialist whom he had consulted. While no offer of proof shows specifically what his testimony would have been, it appears that it would have shown that he consulted a cancer specialist who advised that plaintiff have radiation treatment.

The exclusion of testimony is not prejudicial when the same witness is thereafter allowed to testify to the same import or testifies to facts with substantially the same meaning. Terrell v. Insurance Co., 269 N.C. 259, 262-63, 152 S.E.2d 196, 199 (1967); Rhyne v. O'Brien, 54 N.C.App. 621, 623, 284 S.E.2d 122, 123 (1981). Dr. Satterfield was permitted to testify that he had consulted a physician who specialized in the treatment of cancer in female organs before recommending that plaintiff undergo radiation therapy, and to explain fully the basis for his recommendation to plaintiff. Further, Dr. Satterfield's testimony indicates that he relied on the specialist's advice in deciding upon plaintiff's course of treatment. Dr. Satterfield thus testified to substantially the same import as the excluded evidence; therefore, the error, if any, was harmless. Since defendants failed to offer proof showing that, if permitted, Dr. Satterfield would have testified in greater detail about the advice given him by the specialist, we are unable to determine whether the error, if any, in excluding that additional testimony was prejudicial. See Currence v. Hardin, 296 N.C. 95, 100, 249 S.E.2d 387, 390 (1978). This assignment of error is overruled.

Defendants contend the court erred in refusing to permit Dr. Satterfield to answer the following question on cross-examination:

And is it not true that in view of Mrs. Nelson's condition as you observed it as her attending gynecologist, even though you knew of those risks and hazards [of the radiation therapy], that you felt it was worth those to be sure as you possibly could of getting rid of the cancer completely?

They argue that the court thereby erroneously refused to allow Dr. Satterfield to explain the basis for his opinion that the best course of treatment was radiation therapy.

As stated previously, however, the court allowed Dr. Satterfield to explain fully the basis for his recommendation to plaintiff. Additionally, Dr. Satterfield was permitted to testify that he was aware of the hazards and risks of radiation therapy and that it was his firm and strong recommendation that plaintiff undergo the therapy. Therefore, Dr. Satterfield was allowed to testify to the same import as the excluded answer. See Terrell, 269 N.C. at 262-63, 152 S.E.2d at 199; Rhyne, 54 N.C.App. at 623, 284 S.E.2d at 123. We thus find this assignment of error without merit.

Defendants' next two assignments of error relate to plaintiff's response to the following question by her counsel: "Mrs. Nelson, if you had not been subjected to the radiation treatments you still would not have cancer?" Immediately prior to this question, plaintiff testified on cross-examination that as far as she knew she did not presently have cancer. To clarify that plaintiff's cancer-free condition was as likely due to statistical probabilities as to the radiation treatments, her counsel asked the above question. Defense counsel's objection to form was overruled and plaintiff was permitted to answer that as far as she knew she would not have cancer. Defendants contend it was error to permit plaintiff to answer the question because it called for speculation. We find the error, if any, harmless.

When plaintiff attempted to explain her answer, defense counsel again objected and the court instructed plaintiff to testify only to those matters that were within her personal observations. Plaintiff's counsel then asked plaintiff the same question a second time. Plaintiff answered, but before she finished defense counsel objected and moved to strike the whole answer. The court sustained the objection and the trial proceeded. Defendants assign as error the failure to instruct the jury to disregard plaintiff's answer.

Although the better procedure, upon allowing a motion to strike, is for the court to instruct the jury to disregard the witness' answer immediately after allowing the motion, see State v. Franks, 300 N.C. 1, 13, 265 S.E.2d 177, 184 (1980), the failure to do so here was not prejudicial. Since defense counsel's objection and motion to strike were promptly sustained in the presence of the jury, the jury could only have interpreted the ruling as meaning that the answer was not to be regarded as evidence in the case. See Moore v. Insurance Co., 266 N.C. 440, 450, 146 S.E.2d 492, 500 (1966); Vandiver v. Vandiver, 50 N.C.App. 319, 323, 274 S.E.2d 243, 246 (1981), disc. rev. denied, 302 N.C. 634, 280 S.E.2d 449 (1981).

Defendants contend the court erred in denying the motion by defendant Flournoy for a directed verdict on the ground that there was no evidence of negligence on his part. In ruling on the motion, the court stated:

As to the defendant John Flournoy, the Court finds that there is no evidence of any act of negligence on his part and that there is no genuine issue as to partnership of Flournoy and Patrick, and that the jury will be instructed at the appropriate time that any negligence or damages for which Dr. Patrick is liable as a matter of law, that Flournoy will be liable as a matter of law, jointly and severally on those damages; and that Kinston Radiological Associates, P.A. will be liable for any damages proximately caused by the negligence of Patrick.

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