Rouse v. Pitt County Memorial Hosp., Inc.

• Decision Date: 10 May 1996
• Docket Number: No. 505PA94,505PA94
• Parties: Vickie ROUSE, Individually and as Guardian ad Litem for Travis Sentel Rouse v. PITT COUNTY MEMORIAL HOSPITAL, INCORPORATED, Lynn G. Borchert, Robert G. Brame, Jarlath MacKenna, Michael R. Watkins, Thomas J. Byrne and Joel B. McCuaig.
• Court: North Carolina Supreme Court

Page 44

470 S.E.2d 44

343 N.C. 186

Vickie ROUSE, Individually and as Guardian ad Litem for

Travis Sentel Rouse v. PITT COUNTY MEMORIAL HOSPITAL, INCORPORATED, Lynn G.

Borchert, Robert G. Brame, Jarlath MacKenna,

Michael R. Watkins, Thomas J. Byrne and

Joel B. McCuaig.

No. 505PA94.

Supreme Court of North Carolina.

May 10, 1996.

Law Offices of Grover C. McCain, Jr. by Ada F. Most and Grover C. McCain, Jr., Chapel Hill, for plaintiff-appellee.

Walker, Barwick, Clark & Allen, L.L.P. by Robert D. Walker, Jr., Goldsboro, for defendant-appellant Borchert.

Yates, McLamb & Weyher, L.L.P. by Joseph W. Yates, III, Suzanne S. Lever, and Bruce W. Berger, Raleigh, for defendant-appellant MacKenna.

ORR, Justice.

This appeal arises from a medical malpractice action brought by Vickie Rouse ("plaintiff Rouse"), individually and as guardian ad litem for her minor son, Travis Sentel Rouse ("the minor plaintiff"), on 30 January 1989 against defendants Pitt County Memorial Hospital, Inc. ("the Hospital"), Dr. Jarlath MacKenna, Dr. Lynn Borchert, Dr. Robert Brame, Dr. Michael Watkins, Dr. Thomas Byrne, and Dr. Joel McCuaig. Defendants MacKenna, Borchert, and Brame were on-call attending physicians in the Department of Obstetrics ("OB") and Gynecology at the Hospital during plaintiff's labor and delivery. Defendants Watkins, Byrne, and McCuaig were resident OB physicians under the supervision of Dr. MacKenna and Dr. Borchert during plaintiff's labor and delivery.

Plaintiffs seek money damages for injuries allegedly caused by defendants during plaintiff Rouse's labor and the delivery and birth of the minor plaintiff at the Hospital on 12 August 1982. In the complaint, plaintiff Rouse, in her individual capacity, alleged that defendants MacKenna, Borchert, and Watkins fraudulently concealed the information that there were intraoperative complications during plaintiff Rouse's caesarean section and that she sustained intraoperative lacerations. Further, plaintiff Rouse, as guardian ad litem, alleged that all named defendants were negligent in their provision of medical care and treatment during plaintiff Rouse's labor and the delivery and birth of the minor plaintiff and that defendants MacKenna and Borchert, as on-call attending physicians, were negligent in their supervision of the resident physicians.

Defendants MacKenna and Borchert answered, denying any negligence; subsequently, after discovery, they filed separate motions for summary judgment, which the trial court allowed. Plaintiff Rouse, as guardian ad litem, appealed the entry of both orders to the Court of Appeals, which held, on 5 November 1991, in an unpublished opinion, that plaintiff's appeal was interlocutory and premature and dismissed the appeal. Rouse v. Pitt Co. Mem. Hosp., 104 N.C.App. 554, 410 S.E.2d 241 (1991), disc. rev. denied, 330 N.C. 852, 413 S.E.2d 553 (1992).

On 30 April 1992, plaintiff Rouse, as guardian ad litem, filed a notice of voluntary dismissal without prejudice in the action against defendant Dr. Brame. On 22 May 1992, plaintiff Rouse, as guardian ad litem, filed a Rule 54(b) motion for revision of orders allowing defendants MacKenna's and Borchert's motions for summary judgment in accordance with the guidelines set forth in this Court's opinion in Mozingo v. Pitt Co. Mem. Hosp., 331 N.C. 182, 415 S.E.2d 341 (1992), in which this Court affirmed the Court of Appeals' reversal of summary judgment for the defendant Mozingo, who was the on-call attending physician and obstetrician in an obstetrical medical negligence action. On 7 August 1992, plaintiff Rouse's motion was heard before Judge Brown, who, by an order filed 9 November 1992, denied plaintiff's Rule 54(b) motion to revise the orders granting summary judgment for defendants MacKenna and Borchert.

On 31 December 1992, plaintiff Rouse, in her individual capacity, filed a notice of partial voluntary dismissal of her individual action for fraudulent concealment against defendant Watkins, with prejudice, and against defendants Borchert and MacKenna, without prejudice. Also on 31 December 1992, plaintiff Rouse, as guardian ad litem, filed notice of voluntary dismissal with prejudice as to the minor plaintiff's negligence claims against defendants Watkins, Byrne, and McCuaig. A settlement was reached between plaintiff Rouse, as guardian ad litem, and defendant Hospital, and on 31 December 1992, Judge William C. Griffin, Jr. entered a consent order approving the settlement. Plaintiff Rouse, as guardian ad litem, filed notice of voluntary dismissal with prejudice as to the minor plaintiff's claims against defendant Hospital.

On 8 January 1993, plaintiff Rouse, as guardian ad litem, filed notice of appeal to the Court of Appeals from the orders for summary judgment and from the order denying plaintiff's Rule 54(b) motion to revise the orders. On 6 September 1993, the Court of Appeals reversed the trial court's grant of summary judgment in favor of defendants MacKenna and Borchert on the issue of negligent supervision and reversed the trial court's grant of summary judgment in favor of defendants MacKenna and Borchert on the issue of vicarious liability under the "borrowed servant" doctrine.

On 9 February 1995, this Court allowed defendants MacKenna's and Borchert's petitions for discretionary review.

With respect to plaintiff Rouse's claims, as guardian ad litem, against Dr. MacKenna and Dr. Borchert for negligent supervision and vicarious liability based upon the "borrowed servant doctrine," the forecast of evidence before the trial court, found in allegations in the complaint, the depositions, the stipulations of counsel, and the affidavits in the record on appeal, tends to show that on 12 August 1982 at approximately 8:30 a.m., plaintiff Rouse, who was in labor, was admitted to the Hospital to the service of defendant MacKenna. While defendant Dr. Brame was the on-call attending physician from approximately 8:00 a.m. until 12:00 p.m., it was customary for indigent OB patients such as plaintiff Rouse to be admitted to the service of defendant MacKenna. From approximately 12:00 noon until approximately 5:00 p.m. that evening, as on-call attending physician, defendant MacKenna assumed the responsibility for the on-call supervision of defendants Watkins, the chief OB resident, and Thomas Byrne and McCuaig, the OB residents at the Hospital, who were providing medical care and treatment to Ms. Rouse during her labor and delivery. At 1:45 p.m., nonreassuring patterns of fetal heart rate began to appear and were first documented by a nurse on duty; however, defendant MacKenna testified that he was not consulted by any of the defendant OB residents regarding Ms. Rouse's labor progression.

At approximately 5:00 p.m., defendant Borchert assumed the responsibility for the on-call supervision of the OB residents who were providing medical care for the plaintiffs. While defendant Borchert was the on-call attending physician, the nonreassuring patterns of fetal heart rate continued to be present; however, defendant Borchert was at home and did not see plaintiff Rouse during the second stage of labor until defendant Watkins called defendant Borchert at approximately 8:00 p.m. to come to the Hospital.

The minor plaintiff was delivered at 8:53 p.m. by emergency cesarean section but did not have spontaneous respirations. He was resuscitated with oxygen and bag and mask, intubated, and then transferred to the Neonatal Intensive Care Unit. Subsequently, the minor plaintiff developed significant seizure problems, was placed on several medications, and was diagnosed as suffering from severe cerebral anoxia. Today, he is profoundly mentally retarded and suffers from cerebral palsy, severe spastic quadraparesis, and seizures.

I.

The first issue before this Court is whether the Court of Appeals erred in reversing the trial court's grant of summary judgment for defendants MacKenna and Borchert on the issue of negligent supervision. "Summary judgment is a drastic measure," and is rarely appropriate in negligence cases. See Mozingo, 331 N.C. at 187, 415 S.E.2d at 344. On a motion for summary judgment, the moving party has the burden of establishing that no triable issue of fact exists and that he is entitled to judgment as a matter of law. Id. at 72, 269 S.E.2d at 140. Once the moving party meets this burden, the burden is then on the opposing party to show that a genuine issue of material fact exists. Id. at 73, 269 S.E.2d at 140. If the opponent fails to forecast such evidence, then the trial court's entry of summary judgment is proper. See Rorrer v. Cooke, 313 N.C. 338, 354-55, 329 S.E.2d 355, 365-66 (1985).

In Mozingo, this Court stated that

[m]edical professionals may be held accountable when they undertake to care for a patient and their actions do not meet the standard of care for such actions as established by expert testimony. Thus, in the increasingly complex modern delivery of health care, a physician who undertakes to provide on-call supervision of residents actually treating a patient may be held accountable to that patient, if the physician negligently supervises those residents and such negligent supervision proximately causes the patient's injuries.

Mozingo, 331 N.C. at 189, 415 S.E.2d at 345. " 'To recover damages for actionable negligence, a plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.' " Mozingo, 331 N.C. at 187, 415 S.E.2d at 344 (quoting Waltz v. Wake Co. Bd. of Educ., 104 N.C.App. 302, 304-05, 409 S.E.2d 106, 107 (1991), disc. rev. denied, 330 N.C. 618, 412 S.E.2d 96 (1992)). To resolve this issue, we must first 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." Mozingo, 331 N.C. at 184, 415 S.E.2d at 342.

In the present case, it is uncontested that the defendants, as...