Thompson v. Lockert, 7619SC943

• Decision Date: 07 September 1977
• Docket Number: No. 7619SC943,7619SC943
• Citation: 237 S.E.2d 259,34 N.C.App. 1
• Court: North Carolina Court of Appeals
• Parties: Thelma R. THOMPSON v. Dr. Charles R. LOCKERT.

Page 259

237 S.E.2d 259

34 N.C.App. 1

Thelma R. THOMPSON v. Dr. Charles R. LOCKERT.

No. 7619SC943.

Court of Appeals of North Carolina.

Sept. 7, 1977.

Golding, Crews, Meekins, Gordon & Gray by John G. Golding, Charlotte, for defendant.

BROCK, Chief Judge.

This appeal presents two basic questions which we will discuss in the following order:

I. Did the trial court err in excluding the opinion testimony of Dr. Richard S. Goodman, a Diplomate of the American Board of Orthopedic Surgeons, who practices Orthopedic Surgery in Smithtown, New York, concerning the standard of care exercised by defendant, a Diplomate of the American Board of Orthopedic Surgeons, who practices Orthopedic Surgery in Salisbury, North Carolina?

II. Did the trial court err in granting defendant's motion for a directed verdict on the grounds that plaintiff's evidence did not disclose negligence by defendant in performing the laminectomy diskectomy on defendant?

I

The defendant, Dr. Lockert, received his B.A. degree in 1958 and his M.D. degree in 1962 from Vanderbilt University, Nashville, Tennessee. His professors in Vanderbilt University Medical School were from throughout the country and had been trained at different medical schools throughout the country. Defendant completed his internship at Toledo Hospital, Toledo, Ohio. The doctors training defendant at Toledo were from medical schools throughout the country. At Maxwell Air Force Base, Montgomery, Alabama, defendant studied under doctors who had been educated in various parts of the United States. Defendant studied and finished orthopedic residency at the University Hospital, Baltimore, Maryland, in 1968. He was trained there by doctors from medical schools from various parts of the country. Defendant has been certified by and is a Diplomate of the American Board of Orthopedic Surgeons. Defendant began his practice in North Carolina in 1968. In the operation on plaintiff Dr. Lockert employed the training he had received prior to the time he moved to North Carolina. The equipment used by defendant in the operation on plaintiff is manufactured on a national basis. Defendant receives and studies national medical journals, and he attends seminars all over the United States and the world.

Dr. Richard S. Goodman received his M.D. degree from Bellvue Medical School, New York, in 1960. He served his internship at Indiana University Medical Center. Thereafter Dr. Goodman had a year of general surgery at Jacobi Hospital in the Bronx, New York. After two years in the United States Air Force Medical Corps Dr. Goodman served a residency in orthopedics at New York University, Bellvue Medical Center from 1964 to 1967. Since 1967 he had been engaged in the practice of orthopedic surgery in Smithtown, New York. Dr. Goodman has been certified by and is a Diplomate of the American Board of Orthopedic Surgeons.

Plaintiff's evidence does not show whether the community in which Dr. Goodman practices is or is not similar to the community in which defendant practices. Plaintiff's evidence does not show whether Dr. Goodman is or is not familiar with the standard of professional competence and care customary for Diplomates of the American Board of Orthopedic Surgeons practicing in a community similar to the one in which defendant practices.

Plaintiff argues nevertheless that the proper standard of care in this case should be dictated by the standard of care customary among orthopedic surgeons who are Diplomates of the American Board of Orthopedic Surgeons regardless of the nature of the community of practice. Plaintiff argues, that the competence and standard of care of such a highly trained and certified specialist has no relation to the type of community in which he practices. Plaintiff's argument upon this point is both appealing and persuasive. However, there are at least two strong deterrents to its application.

In Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393 (1970), the Supreme Court of North Carolina abandoned the strict "locality" rule in favor of the "similar community" rule. This was further discussed and affirmed in Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973). We do not agree with plaintiff that Rucker v. Hospital, 285 N.C. 519, 206 S.E.2d 196 (1974) further liberalized the application of the standard of care for physicians and surgeons. That case (Rucker ) was applicable only to the standard of care of "accredited hospitals" in the treatment of a wound, the treatment for which was shown to be standard in "accredited hospitals" throughout the United States. While it is arguable that the reasoning in Rucker can be applied to Diplomates of the American Board of Orthopedic Surgeons we are confronted with a legislatively prescribed standard of care for "health care providers" in this State. Session Laws 1975, Chapter 977, added Article 13 to Chapter 8 of the General Statutes entitled "Medical Malpractice Actions." Under § 8-93 of this new Article 13 of Chapter 8 it is provided:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. (Emphasis added.)

Admittedly this legislation became effective on 1 July 1976 and does not apply to litigation pending on that date (the present action was instituted on 16 September 1974). However it clearly shows that the standard of care applicable to health providers in North Carolina as developed by case law is now adopted by the legislature. The case law and the legislation reflect the general policy of both the judicial and legislative branches of the government in North Carolina with respect to the standard of care to be imposed upon defendant in this case, i. e., the "same or similar community" rule.

In addition to plaintiff's failure to show that her expert witness, Dr. Goodman, was acquainted with the professional competence and care customary in communities similar to Salisbury, North Carolina, among Diplomates of the American Board of Orthopedic Surgeons, objections were properly sustained because of deficiencies in plaintiff's hypothetical questions as propounded to her expert witness.

Plaintiff's expert witness, Dr. Goodman, testified by deposition. With relation to his review of the plaintiff's condition and the operation on plaintiff Dr. Goodman testified:

"I was requested to review certain records with regard to surgery performed by Dr. Charles R. Lockert on Mrs. Thelma R. Thompson on August 1, 1973. These were hospital record, Rowan Memorial Hospital from 7/30/73 to 8/1/73; hospital record N.C. Baptist Hospital, an admission of 9/24/73; medical record Rowan Memorial Hospital, 7/30/73 to 8/12/73. The hospital record obviously has a conflict in their (sic) dates, but that's the best I can give you anyway.

"There is a report of Dr. Wise dated July 17 of '74 of four pages; a covering letter dated July 22, '75, a letter of 1, 2, 3 pages dated December 9, 1975; deposition of Dr. Lockert and three letters from Mr. Rutledge dated February 16, 1976, March 1, 1976, and two letters from Mr. Rutledge. There is my letter to Mr. Rutledge dated March 4, 1976.

"In addition to that I have examined some x-rays which I have returned to you, Mr. Rutledge.

"I have never practiced medicine in North Carolina and I have never seen the plaintiff, Mrs. Thompson, as a patient personally."

Thereafter plaintiff propounded a hypothetical question to Dr. Goodman which, inter alia, assumed the following facts: "(T)hat the operation was as described in the records which have been made available to you, and which are to be attached to this deposition, and based on your study of those records . . . ."

The deposition of Dr. Lockert (defendant) and the Rowan Memorial Hospital records were introduced in evidence in their entirety. However, plaintiff introduced only the discharge report, a handwritten transfer note from defendant and a Roentgen Report from the North Carolina Baptist Hospital records. Plaintiff did not offer to introduce in evidence the full North Carolina Baptist Hospital records, the four page report of Dr. Wise, a cover letter, a three page letter, two letters from Mr. Rutledge (plaintiff's counsel) nor the x-rays which her expert witness examined. The hypothetical question assumed the existence and use of each of the foregoing records by plaintiff's expert in arriving at his opinion. "Since it is the jury's province to find the facts, the data upon which an expert witness bases his opinion must be presented to the jury in accordance with established rules of evidence." Todd v. Watts, 269 N.C. 417, 420, 152 S.E.2d 448, 451 (1967); 1 Stansbury's North Carolina Evidence, Brandis Revision, § 136 (1973). To be competent, a hypothetical question may include only facts which are in evidence or those which a jury might logically infer therefrom. Keith v. Gas Co., 266 N.C. 119, 146 S.E.2d 7 (1966).

For either of the two reasons discussed above defendant's objections to plaintiff's hypothetical questions were properly sustained.

II

Plaintiff argues that even without the opinion testimony the evidence required submission of the case to the jury on one or more of three premises:

(1) Application of the doctrine of res ipsa loquitur.

(2) Going outside the operative field in causing the injury was evidence of negligence.

(3) Evidence that defendant failed to exercise reasonable care and diligence in the application of his knowledge and skill in other particulars.

We think the first two...