Powell v. Shull

• Decision Date: 06 July 1982
• Docket Number: No. 8125SC875,8125SC875
• Citation: Powell v. Shull, 58 N.C.App. 68, 293 S.E.2d 259 (N.C. App. 1982)
• Court: North Carolina Court of Appeals
• Parties: Sherry Chapman POWELL v. Dr. L. Newell SHULL, Jr., Drs. Roach, Hancock and Shull, P. A.

Page 259

293 S.E.2d 259

58 N.C.App. 68

Sherry Chapman POWELL v. Dr. L. Newell SHULL, Jr., Drs. Roach, Hancock and Shull, P. A.

No. 8125SC875.

Court of Appeals of North Carolina.

July 6, 1982.

Plaintiff, Sherry Chapman Powell, filed suit on 27 March 1979 to recover damages resulting from the alleged negligence of Dr. L. Newell Shull ¹ who treated plaintiff for injuries she sustained in an automobile accident. From a judgment for Dr. Shull in this medical negligence case, plaintiff appeals. Dr. Shull cross-assigned error pursuant to Rule 10(d) of the North Carolina Rules of Appellate Procedure.

Powell & Settlemyer, P. A. by Douglas F. Powell, Morganton, for plaintiff-appellant.

Mitchell, Teele, Blackwell & Mitchell by W. Harold Mitchell and Marcus W. H. Mitchell, Jr., Valdese, for defendants-appellees.

BECTON, Judge.

I

Plaintiff fractured her arm in an automobile accident on 16 April 1977, and Dr. Shull treated her for the injury received. Alleging, among other things, (i) that Dr. Shull negligently performed closed reduction surgery of the fracture which resulted in a fibrous nonunion of the fracture; (ii) that Dr. Shull negligently failed to perform open reduction surgery; (iii) that plaintiff ultimately had to consult an orthopedic surgeon, Dr. Larry Anderson, who performed "an open reduction and fixation of fibrous malunion with plate fixation and bone graft and excision of distal ulna ...;" and (iv) that plaintiff experienced pain and suffering, a permanent partial disability, and a permanent deformity in that her injured arm is now shorter than her other arm; plaintiff filed suit and prayed for damages in excess of $10,000.

Defendant, in his Answer, admitted that Dr. Shull had treated plaintiff for a broken arm, denied negligence, and alleged that plaintiff was contributorily negligent by not returning to Dr. Shull's office as separately ordered by Dr. Shull and Dr. Hancock, and by failing, for a two and one-half month period, to seek medical treatment.

Although many facts were disputed at trial, the following facts were undisputed. After Dr. Shull advised plaintiff that she had a fracture of the distal third of the radius, he performed a closed reduction of the fracture on 17 April 1977. The x-rays taken following the closed reduction reveal a 50% to 60% apposition fracture fragment. Plaintiff was discharged on 18 April 1977 and told to return in one week. Between 18 April 1977 and 1 August 1977 plaintiff kept all of her appointments with, and was seen by, Dr. Shull on 25 April 1977, 16 May 1977, 2 June 1977, and 1 July 1977. Between 18 April 1977 and 1 July 1977, the degree of apposition present at the fracture site decreased from the 50% to 60% range to 10%. Although defendant Shull concluded on 1 July 1977 that plaintiff "only had 10% apposition" remaining, that the radius had not aligned properly, and that "there was an increase of angulation at the fracture site," Dr. Shull did not inform plaintiff about these matters. Plaintiff was last seen by Dr. Shull on 1 August 1977. Plaintiff contacted Dr. Larry Anderson, a specialist in orthopedic surgery, on 14 October 1977. As a result of this consultation plaintiff was hospitalized on 8 November 1977, and Dr. Anderson performed an open reduction of the fracture.

Considering these undisputed facts and other facts that were hotly contested and disputed, the jury answered the issues submitted as follows:

1. Was the plaintiff injured or damaged by the negligence of the defendant?

Answer: Yes.

2. If so, did the plaintiff by her own negligence contribute to her injuries?

Answer: Yes.

3. What amount, if any, is the plaintiff entitled to recover of the defendant?

Answer: $20,500

Following the verdict, the trial court declared a mistrial, but later vacated that order and entered judgment on the verdict, treating the jury's award of damages as surplusage. Plaintiff then filed notice of appeal.

II

Although some of the trial court's evidentiary rulings and portions of the trial court's instructions to the jury were excepted to, the dispositive issues on this appeal relate to the trial court's decision at the end of all the evidence to deny defendants' motion for a directed verdict and to deny plaintiff's motion for a directed verdict on the issue of contributory negligence.

First, we discuss defendant's cross-assignment of error--"that the plaintiff's evidence was insufficient to establish actionable negligence."

A. Defendant's Motion for Directed Verdict

In this medical negligence action, the burden is upon the plaintiff to prove by the greater weight of the evidence not only that Dr. Shull was negligent but also that such negligence proximately caused her injuries. Generally, in order to recover for personal injury arising out of the furnishing of health care, the plaintiff must demonstrate by the testimony of a qualified expert that the care provided by defendant was not in accordance with the accepted standard of care in the community. Ballenger v. Crowell, 38 N.C.App. 50, 54, 247 S.E.2d 287, 291 (1978). "It has never been the rule in this State, however, that expert testimony is needed in all medical malpractice cases to establish either the standard of care or proximate cause. Indeed, when the jury, based on its common knowledge and experience, is able to understand and judge the action of a physician or surgeon, expert testimony is not needed." Smithers v. Collins, 52 N.C.App. 255, 260, 278 S.E.2d 286, 289, disc. rev. denied, 303 N.C. 546, 281 S.E.2d 394 (1981). See also Jackson v. Sanitarium, 234 N.C. 222, 226-27, 67 S.E.2d 57, 61-62 (1951), rehearing denied, 235 N.C. 758, 69 S.E.2d 29 (1952). Moreover, once the standard of care is established, whether by expert or non-expert testimony, a doctor's departure from that standard of care may be shown by non-expert witnesses. Id., 67 S.E.2d at 62.

Since, on defendant's motion for a directed verdict, we take the evidence in the light most favorable to the plaintiff, we elect not to set out the evidence elicited by defendant in cross examining plaintiff's witnesses and the evidence brought out by defendant in his own case in chief. Plaintiff called two orthopedic surgeons to testify at trial. One, Dr. Larry Anderson, testified in response to a hypothetical question that Dr. Shull had ample opportunity to observe the healing process to the plaintiff's arm. The second doctor, Dr. Charles Lockert, testified similarly, but also was asked, and answered, the following hypothetical question:

Q. Doctor, if the jury should believe the following to be the facts, and by the greater weight, that Dr. L. Newell Shull, Jr. examined the plaintiff on 17 April 1977 and performed a closed reduction of the displaced fracture to the radius involving the junction of the middle and distal third; that he obtained 50% to 60% apposition of the radius; that he released the plaintiff on 18 April 1977 from the hospital after having applied a long arm cast; that x-rays and examinations taken on 17 April 1977 after casting showed no change in position and alignment; that x-rays taken on 25 April 1977 showed no change in position and alignment; that examination and x-rays taken on, again, 16 May 1977 showed 20% to 30% apposition and that plaintiff was continued in a short arm cast; that examination and x-rays taken on 2 June 1977 after the cast was removed showed slight displacement with 25% to 30% apposition; that plaintiff was examined on 6 June 1977 complaining of pain and the short arm cast was reapplied; that x-rays and examination done 1 July 1977 showed 10% apposition and overall loss of alignment; that plaintiff continued in the cast; that x-rays taken on 1 August 1977 along with examination showed 10% apposition and overall loss of alignment; that only slight callus formation was ever present during any of the examinations; that the treating physician never advised the plaintiff of any difficulty, never referred her to a specialist; that the treating physician on each examination advised the plaintiff that her arm was healing nicely [;] that she could return to work or chop wood; that on 1 July 1977 there was a displacement of 85% to 100% of the radius at the fracture site. Based on that set of hypotheticals do you have an opinion satisfactory to yourself as to whether the standard of care received by the plaintiff, Sherry Powell could have been in accord with proper medical practice in general use within the community of Caldwell County or similar communities among practitioners engaged in the defendant's field of practice, Dr. Shull's field of practice?

OBJECTION: Overruled.

A. I do.

MOTION TO STRIKE: Denied.

Q. What is that opinion?

OBJECTION: Overruled.

....

A. Based purely on all the facts that you've given me in the hypothetical question as to whether it could have been in accordance, if you take into consideration everything in the hypothetical question, I would say it could not have been in accordance.

MOTION TO STRIKE: Denied.

After specifically stating that his answer to the hypothetical question was based solely on the facts in the hypothetical question, Dr. Lockert also testified, that if defendant told plaintiff that she had no problems, that she was well and healed and capable of any type of work, including chopping wood, then defendant's conduct would constitute a deviation from the standard of care required of physicians engaged in the practice of operative orthopedics in Caldwell County, or in similar communities.

In addition to the testimony of Dr. Anderson and Dr. Lockert, Dr. Shull, himself, testified that plaintiff's fracture did not heal properly within the normal healing period and that he was greatly concerned about the progressive...