Schaffner v. Cumberland County Hosp. System, Inc.

• Decision Date: 19 November 1985
• Docket Number: No. 8512SC76,8512SC76
• Citation: 336 S.E.2d 116,77 N.C.App. 689
• Court: North Carolina Court of Appeals
• Parties: Bruce SCHAFFNER, Guardian Ad Litem For Eugenia L. Schaffner, Minor v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC. and Dr. C.G. Pantelakos.

Page 116

336 S.E.2d 116

77 N.C.App. 689

Bruce SCHAFFNER, Guardian Ad Litem For Eugenia L. Schaffner, Minor v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC. and Dr. C.G. Pantelakos.

No. 8512SC76.

Court of Appeals of North Carolina.

Nov. 19, 1985.

Carter & Melvin by Lester G. Carter, Jr., and Stephen R. Melvin, Fayetteville, for plaintiff-appellant.

Clark, Shaw, Clark, Lingle & Anderson by John G. Shaw and Dougald N. Clark, Jr., Fayetteville, for defendant-appellee Cumberland County Hosp. System, Inc.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson, Jodee Sparkman King and William H. Moss, Raleigh, for defendant-appellee Dr. C.G. Pantelakos.

WHICHARD, Judge.

The sole question is whether the court erred in granting defendants' motions for summary judgment. A movant is entitled to summary judgment pursuant to N.C.Gen.Stat. 1A-1, Rule 56 when the record, viewed in the light most favorable to the nonmoving party, presents " 'no genuine issue as to any material fact and ... 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); Sharpe v. Quality Education, Inc., 59 N.C.App. 304, 306-07, 296 S.E.2d 661, 662 (1982). Issues of negligence should ordinarily be resolved by a jury and are rarely appropriate for summary judgment. Easter, supra.

Plaintiff contends that the facts as set out in the depositions, answers to interrogatories, and affidavits submitted to the court are sufficient to invoke the doctrine of res ipsa loquitur. We agree. While ordinarily negligence must be proved and cannot be inferred from the fact of an injury, Kekelis v. Machine Works, 273 N.C. 439, 442, 160 S.E.2d 320, 322 (1968), res ipsa applies and allows the finder of fact to draw an inference of negligence from the circumstances surrounding an injury when (1) "the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission," (2) "direct proof of the cause of [the] injury is not available," and (3) "the instrumentality involved in the accident is under the defendant's control." 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). The inference created by res ipsa will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence. Mitchell v. Saunders, 219 N.C. 178, 183-84, 13 S.E.2d 242, 245-46 (1941) (pre-Rules case but res ipsa principles applicable). The burden of proving negligence, however, remains with the plaintiff; accordingly, the finder of fact may reject the permissible inference of negligence even though the defendant presents no evidence. Id.

Application of res ipsa in medical malpractice actions has received special attention, resulting in what our Supreme Court has characterized as a "somewhat restrictive" application of the doctrine. Id. at 182, 13 S.E.2d at 244. The precautions in applying res ipsa to a medical malpractice action stem from an awareness that the majority of medical treatment involves inherent risks which even adherence to the appropriate standard of care cannot eliminate. Id. This, coupled with the scientific and technical nature of medical treatment, renders the average juror unfit to determine whether plaintiff's injury would rarely occur in the absence of negligence. Id. Unless the jury is able to make such a determination plaintiff clearly is not entitled to the inference of negligence res ipsa affords. To allow the jury to infer negligence merely from an unfavorable response to treatment would be tantamount to imposing strict liability on health care providers. See Koury v. Folly, 272 N.C. 366, 373, 158 S.E.2d 548, 554 (1968). Once plaintiff's proof has addressed these concerns, however, no bar to application of res ipsa in medical malpractice actions exists. Mitchell, 219 N.C. at 182, 13 S.E.2d at 245; see also Parks v. Perry, 68 N.C.App. 202, 206-07, 314 S.E.2d 287, 289 (1984).

We find plaintiff's forecast of evidence sufficient to allow reasonable jurors to find the first prong of the res ipsa test, viz, that the injury sustained was not an inherent risk of the operation and would rarely if ever occur absent negligence. Plaintiff's failure to present a forecast of expert testimony is not fatal. "There are many known and obvious facts in the realm of common knowledge which speak for themselves, sometimes even louder than witnesses, expert or otherwise." Gray v. Weinstein, 227 N.C. 463, 465, 42 S.E.2d 616, 617 (1947). When, as here, the facts can be evaluated based on common experience and knowledge, expert testimony is not required. See, e.g., Tice v. Hall, 310 N.C. 589, 313 S.E.2d 565 (1984) (expert testimony not required to establish defendant's breach of a standard of care when sponge is left in plaintiff's body following surgery; N.C.Gen.Stat. 90-21.12, which codifies the "same or similar community" standard of care for health care providers, does not compel otherwise); Koury, 272 N.C. 366, 158 S.E.2d 548 (doctor administered drug to child in contravention to warning labels; expert testimony not required); Gray, 227 N.C. 463, 42 S.E.2d 616 (doctor left child who had swallowed a dozen aspirin unattended for eleven hours; expert testimony not required); cf. Hoover v. Hospital Inc., 11 N.C.App. 119, 180 S.E.2d 479 (1971) (patient suffered nerve damage following surgery; absence of expert testimony establishing that such injury rarely occurs in absence of negligence held fatal to plaintiff's claim). While undoubtedly risks are inherent in the medical treatment plaintiff received, a jury, based on common knowledge and experience, could reasonably conclude that a burn on a portion of her body not involved in the surgery was not among those risks, and that, but for the negligence of some person(s) in control of her person and the instrumentalities used in her treatment, she would not have been injured. W. Prosser & W. Keeton, The Law of Torts Sec. 39 at 256 (5th ed. 1984) (a jury may properly infer medical malpractice from an injury to "an inappropriate part of [a patient's] anatomy" without the aid of expert testimony). See West Coast Hosp. Ass'n v. Webb, 52 So.2d 803 (Fla.1951); Hand v. Park Community Hosp., 14 Mich.App. 371, 165 N.W.2d 673 (1968).

While plaintiff did not forecast evidence of what caused her injuries, a probable explanation emerges from defendant Pantelakos' deposition. He testified that during surgery a hyfrecator malfunctioned and had to be replaced. The hyfrecator emits an electrical current and is used to cauterize blood vessels in the area of surgery. Defendant Pantelakos described the malfunctioning hyfrecator as "sparking and putting out a large current." He further stated that he noticed that a ground plate had not been placed under the plaintiff. When in place, a ground plate rests under the patient and a cord leads from the plate to the front of the hyfrecator unit. According to defendant Pantelakos, a ground plate could prevent some of the "sparking and gapping" characteristic of a defective hyfrecator. He also testified that although he is solely responsible for the use of the hyfrecator during surgery, it is the responsibility of operating room personnel to set up the ground plate. Due to the risks associated with moving an anesthetized patient, defendant Pantelakos could not use a ground plate with the second hyfrecator.

As a safety measure, defendant Pantelakos had previously initiated a policy of using ground plates in conjunction with the hyfrecators at Cape Fear Valley Hospital. It was his experience that the machines often malfunction due to improper maintenance. He also described the hyfrecators as "really cheap" and "poorly adjustable." The use of ground plates, according to defendant Pantelakos, constituted "good medical practice."

While this testimony falls short of establishing the actual causation necessary to prove negligence directly, it identifies a plausible source of plaintiff's injury. Such evidence may be considered in determining whether res ipsa should apply. "[Res ipsa] must not be supposed to require that plaintiff ... must rely altogether upon this prima facie showing ... of negligence, for [s]he may resort to other proof for the purpose of particularizing the negligent act and informing the jury as to the special cause of [her] injury." Brown v. Manufacturing Co., 175 N.C. 201, 203, 95 S.E. 168, 169 (1918). See Byrd, Proof of Negligence in North Carolina: Part I. Res Ipsa Loquitur, 48 N.C.L.Rev. 452, 473 (1969-70) ("Plaintiff's evidence that tends to limit the possible causes of the accident may facilitate rather than bar the application of res ipsa. "). See also Boyd v. Kistler, 270 N.C. 744, 747, 155 S.E.2d 208, 210 (1967) (res ipsa held inapplicable; absence of evidence indicating "when and how the injury occurred and who caused it" noted by the court).

The second prong of the res ipsa test is that direct proof of the cause of injury must be unavailable to plaintiff. Byrd v. Hospital, 202 N.C. 337, 343-44, 162 S.E. 738, 741 (1932); McPherson v. Hospital, 43 N.C.App. 164, 168, 258 S.E.2d 410, 413 (1979). Here plaintiff was anesthetized during surgery and can offer no account of her injury. Plaintiff's mother and grandmother can only attest to the fact that her hand was not burned prior to surgery and was immediately afterward. Both defendants deny knowledge regarding plaintiff's injury. This prong of the test thus is met.

The third prong of the res ipsa test limits application of the doctrine to situations where the instrumentality causing injury is in defendant's "exclusive" control. O'Quinn v. Southard, 269 N.C. 385, 391-92, 152 S.E.2d 538, 542-43 (1967); McPherson, 43 N.C.App. at 168, 258 S.E.2d at 413. Defendants argue that plaintiff's inability to identify the...