Sumner v. Pruitt

• Decision Date: 24 October 1983
• Docket Number: No. 0069,0069
• Citation: 314 S.E.2d 150,281 S.C. 63
• Court: South Carolina Court of Appeals
• Parties: Donna SUMNER, Appellant, v. A. Bert PRUITT, Jr., M.D., Respondent. . Heard

Page 150

314 S.E.2d 150

281 S.C. 63

Donna SUMNER, Appellant, v. A. Bert PRUITT, Jr., M.D., Respondent.

No. 0069.

Court of Appeals of South Carolina.

Heard Oct. 24, 1983.

Decided Feb. 10, 1984.

Francis T. Draine, Columbia, for appellant.

Thomas Dewey Wise, Charleston, for respondent.

SHAW, Justice:

This appeal is from an order granting Dr. Pruitt's motion for a directed verdict in a medical malpractice suit brought by appellant Donna Sumner. We affirm because there is no evidence from which a jury might reasonably conclude Dr. Pruitt was negligent.

Mrs. Sumner contends Dr. Pruitt violated customary standards of practice by failing either to insert an intra-uterine device (IUD) during menstruation or to conduct a laboratory pregnancy test before insertion. The evidence of his failure to do either, she argues, was sufficient proof of negligence to require submission of the case to the jury. The injuries that Mrs. Sumner allegedly sustained as a result of the IUD insertion are nausea, cramps, heavy bleeding, infection, and fever. She also claimed to have suffered physical pain, humiliation, embarrassment and mental anguish from the abortion.

The evidence when viewed in the light most favorable to Mrs. Sumner shows that Dr. Pruitt fitted Mrs. Sumner with an IUD when she was six weeks pregnant. As a matter of standard medical practice, if not common knowledge, an IUD is not inserted during pregnancy. Mrs. Sumner had been taking low-dose birth control pills prescribed by Dr. Pruitt up to the time of insertion of the IUD. Low-dose birth control pills, when taken properly, are effective in preventing pregnancy at a rate approaching one hundred per cent. Mrs. Sumner had "missed" her last two menstrual periods at the time of insertion. The menstrual flow she had otherwise experienced during the prior eighteen months while taking birth control medication had been abnormally slight. At the time of insertion, there was no menstrual flow.

Before insertion of the IUD, Dr. Pruitt conducted a manual examination to determine the position and size of the uterus. This type examination is frequently employed to detect pregnancy but is ineffectual in the first six weeks of pregnancy. Dr. Pruitt did not order a laboratory pregnancy test. Mrs. Sumner was not advised of the laboratory test, nor did she request one. The laboratory test that was available at this time, at a cost of $15, was considered less reliable than a manual test on a woman pregnant for six weeks or less. After conducting the manual examination, Dr. Pruitt concluded the uterus was normal. He had no suspicion that Mrs. Sumner was pregnant when he inserted the IUD.

Expert testimony established that it was a customary standard of medical practice to insert an IUD during menstruation because menstruation facilitates insertion and indicates, though not conclusively, that the patient is not pregnant. Dr. Pruitt testified an IUD should not be fitted if there is a suspicion the patient is pregnant. He also acknowledged that if there is a possibility conception may have occurred since the last menstrual period, an IUD should not be fitted until pregnancy is excluded as a possibility.

It is undisputed Dr. Pruitt departed from a customary standard of practice by inserting the IUD when there was no menstruation. Proof of a departure from established standards of practice, however, does not necessarily make out a prima facie case of negligence if the departure is justified under the circumstances. See Green v. Lilliewood, 272 S.C. 186, 191, 249 S.E.2d 910, 912-913 (1978) (quoting 70 C.J.S. Physicians and Surgeons § 62, p. 1006 [1951].

We hold as a matter of law under the evidence presented that Dr. Pruitt's departure from this customary standard of practice was justified under the circumstances. See King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981). An expert testified Mrs. Sumner's birth control medication often caused patients to miss menstrual periods. He testified further that because Mrs. Sumner had experienced abnormal menstrual flow while taking reliable birth control medication, Dr. Pruitt was not negligent in believing the medication was the cause of the missed periods. There was no contrary expert testimony to show insertion of the IUD when there was no menstruation was negligent conduct under the circumstances. Nor was there any expert testimony showing an average competent obstetrician would have detected the pregnancy by a manual examination during the first six weeks of pregnancy or would have ordered a laboratory pregnancy test under the circumstances. As a general rule, expert testimony is required in a malpractice case to show that a departure from a customary standard of care constitutes negligence. See Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978). Since there was no such testimony here, Mrs. Sumner failed to prove negligence on this particular.

We conclude there was no evidence from which the jury could reasonably find Dr. Pruitt was negligent in not suspecting Mrs. Sumner was pregnant. There was therefore no evidence that insertion of the IUD during pregnancy was negligent conduct. The trial judge properly granted Dr. Pruitt's motion for a directed verdict. ¹

Mrs. Sumner also assigns error to several of the trial judge's rulings pertaining to the examination of witnesses. First, the trial judge refused to permit her counsel to ask leading questions of Dr. Pruitt, whom Mrs. Sumner called to testify in her case in chief. Dr. Pruitt was undoubtedly an "adverse" witness because he was an adverse party in the litigation. ² See Reid v. Kelly, 274 S.C. 171, 262 S.E.2d 24 (1980). The decision whether an adverse witness may be asked leading questions is discretionary with the trial judge. White v. Southern Oil, 198 S.C. 173, 17 S.E.2d 150 (1941). We find no manifest abuse of discretion or prejudice to Mrs. Sumner here because throughout direct examination Dr. Pruitt answered questions willingly and thoroughly.

Mrs. Sumner next complains the trial judge erred in refusing to permit the use of Dr. Pruitt's deposition to contradict and impeach his testimony. The trial judge disallowed the attempt on the ground Mrs. Sumner had called Dr. Pruitt to testify and could not be allowed to impeach him because he was her witness. It is "within the discretion of the trial judge to permit impeachment of a witness who was an adverse party". Reid v. Kelly, 274 S.C. 171, 262 S.E.2d 24 (1980). We hold that the trial judge abused his discretion because his ruling was controlled by an error of law. Stewart v. Floyd, 274 S.C. 437, 265 S.E.2d 254 (1980). The trial judge believed that this type impeachment was not permitted rather than being discretionary. This error does not require reversal, however, because we find no material variance between the deposition testimony offered and the trial testimony. Without such a variance there is no basis of a contradiction; therefore, the error did not prejudice Mrs. Sumner. Anderson v. Elliott, 228 S.C. 371, 90 S.E.2d...