Rorrer v. Cooke

• Decision Date: 07 May 1985
• Docket Number: No. 468PA84,468PA84
• Court: North Carolina Supreme Court
• Parties: Mary Carol RORRER v. Arthur O. COOKE.

Page 355

329 S.E.2d 355

313 N.C. 338

Mary Carol RORRER v. Arthur O. COOKE.

No. 468PA84.

Supreme Court of North Carolina.

May 7, 1985.

McCain & Essen by Grover C. McCain, Jr., and Jeff Erick Essen, Chapel Hill, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter by Stephen P. Millikin, Alan W. Duncan and Douglas W. Ey, Jr., Greensboro, for defendant-appellant.

MARTIN, Justice.

The sole issue before this Court is whether the Court of Appeals erred in holding summary judgment for defendant to be improper. For the reasons set forth below we conclude that it did and therefore reverse the decision of the Court of Appeals. The rules governing summary judgment motions are now familiar and need not be repeated here. See Broadway v. Blythe Industries, Inc., 313 N.C. 150, 326 S.E.2d 266 (1985); Bone International, Inc. v. Brooks, 304 N.C. 371, 375, 283 S.E.2d 518, 520 (1981).

Plaintiff's suit is predicated upon the theory that Cooke negligently represented her during prosecution of her suit against Dr. Sardi. This Court's most thorough discussion of an attorney's legal obligation to his client is set forth in Hodges v. Carter, 239 N.C. 517, 519-20, 80 S.E.2d 144, 145-46 (1954):

Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client's cause. McCullough v. Sullivan, 132 A. 102, 43 A.L.R. 928; Re Woods, 13 S.W.2d 800, 62 A.L.R. 904; Indemnity Co. v. Dabney, 128 S.W.2d 496; Davis v. Indemnity Corp., 56 F.Supp. 541; Gimbel v. Waldman, 84 N.Y.S.2d 888; Anno. 52 L.R.A. 883; 5 A.J. 287, 47; Prosser Torts, p. 236, sec. 36; Shearman & Redfield Negligence, sec. 569.

An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers. 5 A.J. 335, sec. 126; 7 C.J.S. 979, sec. 142; McCullough v. Sullivan, supra; Hill v. Mynatt, 59 S.W. 163, 52 L.R.A. 883.

Conversely, he is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care. 5 A.J. 333, sec. 124; Re Woods, supra; McCullough v. Sullivan, supra; Anno. 52 L.R.A. 883.

See generally Annot., 45 A.L.R.2d 5 (1956). ¹

Plaintiff does not contend that Cooke did not possess the requisite degree of learning, skill, and ability necessary to the practice of law and which others similarly situated ordinarily possess. Nor would the record support such finding. It is uncontested that Cooke was duly licensed to practice law in North Carolina and engaged in such practice from that time until his death during the pendency of the present litigation. Plaintiff made no challenge to the statements of several of defendant's affiants that Cooke's reputation in Greensboro for the application of his legal skills was excellent. Therefore, the first criterion established by Hodges is not at issue.

Plaintiff does claim, however, that the affidavits she submitted in opposition to defendant's motion for summary judgment establish that there is a material question of fact as to whether Cooke's conduct of the litigation of her suit was in accord with the other two criteria set forth in Hodges. To place these affidavits in context we first review the undisputed facts as to the course of events culminating in the jury verdict in favor of Dr. Sardi.

Plaintiff first met with Cooke regarding suit against Dr. Sardi on 22 March 1972. At this conference both plaintiff and her husband stated emphatically that Dr. Sardi had told them that the cause of Mrs. Rorrer's tongue paralysis was probably too much pressure exerted by the clamp used during the course of the operation. The Rorrers also told Cooke that plaintiff had been seen and examined by Dr. T. Boyce Cole at the Duke University Medical Center. Mr. Rorrer also stated that Dr. Cole told him that although he had never seen or heard of a paralysis resulting from a tonsillectomy, he felt that something had occurred in the course of the operation to cause the paralysis and that pressure on the tongue was a possible explanation. After the Rorrers left, Mr. Cooke conducted extensive research in various medical treatises and other written materials in order to understand the medical aspects of Mrs. Rorrer's injury.

Mr. Cooke then obtained a copy of a written report prepared on 6 December 1971 by Dr. Joseph W. Stiefel, a neurologist to whom plaintiff had been sent by Dr. Sardi. This report stated in part:

I would certainly agree she has a bilateral palsy of the tongue, presumably from the involvement of the 12th nerves bilaterally. I am still inclined to think it will improve as I don't believe it is as atrophic as it should be six weeks after complete interruption of the 12th nerves. I would do nothing at the present except to let a little time go by.

In an affidavit filed with his motion for summary judgment Cooke stated that he

construed the words "complete interruption" used by Dr. Stiefel as tending to support the fact that Dr. Sardi had discussed an interruption of the 12th nerve with Dr. Stiefel and this further tended to support the supposition that the blood supply to the hypoglossal nerve had been "interrupted", and that this "interruption" had been caused by too much pressure being exerted on Mrs. Rorrer's tongue by the clamp used by Dr. Sardi during the operation, and as not suggesting any other cause. I construed this report of Dr. Stiefel as being entirely consistent with what Mr. and Mrs. Rorrer said had been stated to them by Dr. Sardi and as ruling out any psychosomatic problem as a cause for the tongue paralysis.

Cooke then contacted Dr. Gray Hunter, a Greensboro surgeon, and asked him whether or not it would be possible for the hypoglossal nerve to be severed or cut during the course of a tonsillectomy. Dr. Hunter said that in his opinion it would be virtually impossible for this to occur. As Cooke stated in the aforementioned affidavit, Dr. Hunter's

opinion strengthened my view that the cause of the paralysis of Mrs. Rorrer's tongue was the pressure exerted on her tongue by the clamp used by Dr. Sardi, which pressure had impaired the flow of blood to the hypoglossal nerve. Dr. Hunter had no other explanation. This same view was later expressed to me by Dr. Cole.

Mr. Cooke then proceeded to obtain and study all medical records relating to Mrs. Rorrer from (1) the Moses H. Cone Memorial Hospital, (2) Dr. Sardi, (3) Dr. Stiefel, as well as copies of the reports of Dr. Cole and Drs. Joseph C. Farmer and Ng Khye Weng, doctors who practice at the Duke University Medical Center. In one report Dr. Farmer stated: "It is possible that she (Mrs. Rorrer) could have a tongue muscle injury secondary to the retraction of the tongue at the tonsillectomy, however, this is most unusual." By his affidavit Cooke states that he

construed this statement by Dr. Farmer as further supporting the supposition that the paralysis of the tongue was an injury secondary to the retraction of the tongue during the tonsillectomy, and that this was caused by pressure exerted on the tongue by the clamp in such a manner as to damage the hypoglossal nerve.

In a report dated 2 February 1972 obtained by Cooke, Dr. Cole stated:

No explanation has been found to date for the difficulty and Dr. Weng referred her to obtain a tongue biopsy.... Certainly the time element as far as a tonsillectomy is concerned would point to an injury at the time, however, it is impossible for me to see how a direct injury could have caused this and while doing a tonsillectomy. I have never seen or heard of a similar incidence.

In a report dated 20 March 1973, Cole further remarked: "According to Dr. Weng, there is no evidence of any other neurological disease and I told her (Mrs. Rorrer) to let me see her again in about six months for a follow-up examination." In the affidavit, discussing these reports of Cole, Cooke states:

I construed this information from Dr. Cole as ruling out any cause for paralysis of the tongue other than something that occurred during the tonsillectomy by Dr. Sardi. I was satisfied from the information from Dr. Cole, Dr. Weng, and Dr. Stiefel, that Mrs. Rorrer's condition was not psychosomatic. Based upon the information furnished to me by Mr. and Mrs. Rorrer, by the several doctors and by all medical records, I was of the opinion that the best theory and only theory of injury to the tongue was the placing of too much pressure on the tongue by the clamp by Dr. Sardi. I was of the opinion that I needed to determine whether evidence of too much pressure on the tongue which could result in a paralysis would be in accordance with the accepted standards of practice in performing a tonsillectomy. I decided that Dr. Cole, Mrs. Rorrer's own doctor, who had first hand personal knowledge of her condition, and the resources at the Duke Medical Center at his disposal was the best source of information on this.

After waiting for some time to elapse (in hopes that plaintiff's condition would improve) Cooke met personally with Dr. Cole in 1973. Cooke's affidavit states that he...