Parks v. Perry

• Decision Date: 01 May 1984
• Docket Number: No. 8323SC630,8323SC630
• Citation: 68 N.C.App. 202,314 S.E.2d 287
• Parties: Betty Ledford PARKS and Johnny A. Parks v. H.B. PERRY, Jr., Franklin B. Wilkins, Louise Godwin, and Hugh Chatham Memorial Hospital.
• Court: North Carolina Court of Appeals

Page 287

314 S.E.2d 287

68 N.C.App. 202

Betty Ledford PARKS and Johnny A. Parks v. H.B. PERRY, Jr., Franklin B. Wilkins, Louise Godwin, and Hugh Chatham Memorial Hospital.

No. 8323SC630.

Court of Appeals of North Carolina.

May 1, 1984.

Frye, Booth, Porter & Van Zandt by John P. Van Zandt, III, Winston-Salem, for plaintiff-appellants.

Bell, Davis & Pitt by William Kearns Davis, Joseph T. Carruthers, Winston-Salem, for defendant-appellee, Franklin B. Wilkins.

Womble, Carlyle, Sandridge & Rice by Jimmy H. Barnhill, Richard T. Rice, Winston-Salem, for defendant-appellee, Louise Godwin.

Harris, Cheshire, Leager & Southern by F. Stephen Glass, Claire L. Moritz, Raleigh, for defendant-appellee, Hugh Chatham Memorial Hosp.

BRASWELL, Judge.

Betty Parks awoke after surgery with a numb little finger and a partially numb ring finger on her right hand. Mrs. Parks and her husband, who has also sued for loss of consortium, contend that she suffered severe ulnar nerve damage in her right arm at the level of the elbow due to the negligence of Dr. H.B. Perry, Jr. (Chief Surgeon), Dr. Franklin B. Wilkins (Assistant Surgeon), Louise Godwin (Nurse Anesthetist), and the Hugh Chatham Memorial Hospital. Following discovery, each defendant filed a motion for summary judgment which was granted by the trial court. The plaintiffs have resolved all matters against the defendant, Dr. H.B. Perry, Jr., and have filed a voluntary dismissal of their action against him. The plaintiffs appealed from the summary judgment motions granted in favor of the remaining three defendants.

On 30 September 1979, Betty Parks was admitted to the Hugh Chatham Memorial Hospital in Elkin, North Carolina, under the care of Dr. H.B. Perry, Jr. The next morning, Dr. Perry, with Dr. Wilkins assisting, performed a vaginal hysterectomy on Mrs. Parks. She was placed under general anesthesia and in the lithotomy position by Louise Godwin, the nurse anesthetist.

The plaintiffs' evidence showed that immediately prior to her operation on 1 October 1979 Mrs. Parks had no neurological defects in her right fingers, hand, wrist, arm, and in particular, had no damage to her right ulnar nerve. However, on 2 October 1979, during her first moments of consciousness after the surgery, Mrs. Parks experienced numbness and weakness in the fourth and fifth fingers of her right hand. Mrs. Parks repeatedly told Dr. Perry and the nurses about the numbness in her hand. Dr. Perry stated that it would eventually go away. When the numbness did not disappear, Mrs. Parks was referred to several other doctors who determined that she had suffered ulnar nerve damage in her right arm at the elbow. Further surgery was performed by Dr. William Brown, a neurosurgeon, on 12 December 1979, but the damage could not be corrected.

As a result of this damage to her ulnar nerve, several muscles in Mrs. Park's right hand have deteriorated so that she is unable to use her fourth and fifth fingers, causing her great difficulty in gripping objects and in writing. Because of the permanent damage to her hand, Mrs. Parks could not return to her job with Central Carolina Telephone.

The plaintiffs contend that the permanent injury to Mrs. Parks' ulnar nerve was sustained during the vaginal hysterectomy. The plaintiff's expert witness, Dr. Edward Hayes Camp, testified that in his opinion Mrs. Parks' injury which caused the partial paralysis in her right hand occurred during the 1 October 1979 operation due to improper positioning or monitoring of her right arm by the nurse anesthetist.

The defendant Godwin contends that because the plaintiffs' entire case rests upon expert testimony it is insufficient as a matter of law to create an inference of actionable negligence. The defendant Wilkins argues that summary judgment in his favor was proper because the evidence shows he took no part in positioning the patient and had no duty to inspect her arm position. The defendant-hospital asserts that the plaintiffs have produced no evidence sufficient to show it was guilty of actionable negligence or that Nurse Godwin and Dr. Wilkins were agents of the hospital.

The sole question presented for our review is whether the trial court erred in granting summary judgment in favor of the defendants. Summary judgment is proper, according to G.S. 1A-1, Rule 56, when the movant establishes " 'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Easter v. Hospital, 303 N.C. 303, 305, 278 S.E.2d 253, 255 (1981), quoting Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980). In Easter, also a medical malpractice action, the Supreme Court recognized the general rule that only in exceptional negligence cases is summary judgment appropriate. Id.

We begin our discussion with the alleged liability of the defendant-nurse, Louise Godwin, because, as this defendant concedes, if negligence occurred then she is the primary tortfeasor. Nurse Godwin contends that the plaintiffs have offered no evidence of actionable negligence, except that which might be inferred from the doctrine of res ipsa loquitur. Generally, "[r]es ipsa applies when direct proof of the cause of an injury is not available, the instrumentality involved in the accident is under the defendant's control, and the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission." Russell v. Sam Solomon Co., 49 N.C.App. 126, 130, 270 S.E.2d 518, 520 (1980), disc. rev. denied, 301 N.C. 722, 274 S.E.2d 231 (1981). In her brief Nurse Godwin claims that "[t]he only types of malpractice cases in which the doctrine of res ipsa has been applied in North Carolina are either 'foreign object' cases or cases in which there is manifest such an obviously [sic] gross want of care and skill as to afford, of itself, an almost conclusive inference of negligence." See Pendergraft v. Royster, 203 N.C. 384, 393, 166 S.E. 285, 289-90 (1932). The reason given for the doctrine's limited availability is the principle that a health care provider is not an insurer of results and that no presumption of negligence can arise from the mere fact of an accident or injury. Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245 (1941); see also Russell, supra 49 N.C.App., at 131, 270 S.E.2d at 520. However, the North Carolina Supreme Court has long recognized that

where proper inferences may be drawn by ordinary men from proved facts which give rise to res ipsa loquitur without infringing this principle, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things....

Mitchell, supra. In Pendergraft, supra, 203 N.C., at 393, 166 S.E. at 289, the Court recognized the doctrine's importance " 'where the injury is received while the patient is unconscious ... because under such circumstances the patient would not be able to testify as to what had happened, whereas the physician could.' " (Citation omitted.)

The test of the applicability of res ipsa loquitur in medical malpractice cases is twofold: (1) the injurious...