Tice v. Hall

• Decision Date: 05 July 1983
• Docket Number: No. 8212SC720,8212SC720
• Citation: 303 S.E.2d 832,63 N.C.App. 27
• Court: North Carolina Court of Appeals
• Parties: Josie Phillips TICE v. William HALL.

Page 832

303 S.E.2d 832

63 N.C.App. 27

Josie Phillips TICE v. William HALL.

No. 8212SC720.

Court of Appeals of North Carolina.

July 5, 1983.

Clark, Shaw, Clark & Bartelt by Jerome B. Clark, Jr., Fayetteville, and Teague, Campbell, Conely & Dennis by John W. Campbell, Lumberton, for plaintiff.

Anderson, Broadfoot, Anderson, Johnson & Anderson by Hal W. Broadfoot, Fayetteville, for defendant.

WELLS, Judge.

The question we decide in this case is whether plaintiff's evidence was sufficient to raise a jury issue on a violation of the standard of care incorporated in G.S. 90-21.12, which provides:

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.

We answer the question in the affirmative and reverse the judgment of the trial court.

Our appellate courts have held that the standard of care adopted in G.S. 90-21.12 reflects the decisional law of our courts, Thompson v. Lockert, 34 N.C.App. 1, 237 S.E.2d 259, disc. rev. denied, 293 N.C. 593, 239 S.E.2d 264 (1977), and imposes a standard of care known as the "same or similar community rule." Id. Usually, expert testimony is required to establish the standard, to show its negligent violation, and to show that such negligent violation was the proximate cause of the injury complained of. Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978); see also Tripp v. Pate, 49 N.C.App. 329, 271 S.E.2d 407 (1980).

The evidence in this case must be reviewed in accordance with well-established and recognized rules applicable to motions for a directed verdict.

A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. On such a motion, plaintiff's evidence must be taken as true and considered in the light most favorable to the plaintiff, giving plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977); Everhart v. LeBrun, 52 N.C.App. 139, 277 S.E.2d 816 (1981). If, when so viewed, the evidence is such that reasonable minds could differ as to whether the plaintiff is entitled to recover, a directed verdict should not be granted and the case should go to the jury. Insurance Co. v. Cleaners, 285 N.C. 583, 206 S.E.2d 210 (1974). On such a motion made at the close of all the evidence, any of defendant's evidence which tends to contradict or refute plaintiff's evidence is not to be considered, but the plaintiff is entitled to the benefit of defendant's evidence which is favorable to plaintiff, Overman v. Products Co., 30 N.C.App. 516, 227 S.E.2d 159 (1976), or which tends to clarify plaintiff's case, Home Products Corp. v. Motor Freight, Inc., 46 N.C.App. 276, 264 S.E.2d 774, disc. review. denied, 300 N.C. 556, 270 S.E.2d 105 (1980).

Koonce v. May, 59 N.C.App. 633, 298 S.E.2d 69 (1982).

The trial court should deny motions for directed verdict ... when, viewing the evidence in the light most favorable to the plaintiff and giving the plaintiff the benefit of all reasonable inferences, it finds " 'any evidence more than a scintilla' to support plaintiff's prima facie case in all its constituent elements."

Hunt v. Montgomery Ward, 49 N.C.App. 642, 272 S.E.2d 357 (1980).

We now review the evidence in this case in accordance with the above-stated rules.

Plaintiff testified that she was a resident of Cumberland County, where she has resided for about 30 years. On 8 September 1976, defendant William Hall performed surgery on plaintiff at Cape Fear Valley Hospital to repair a hiatal hernia. Plaintiff had been referred to Dr. Hall by her family doctor, Dr. Izurieta. Following her surgery, plaintiff remained in the hospital for about 17 days. After plaintiff's surgery, plaintiff visited Dr. Hall in his office in Fayetteville on a number of occasions, complaining of pain and discomfort in the area of her body where the surgery was performed. Dr. Hall gave plaintiff various responses as to the cause of her discomfort, but provided no specific treatments. Plaintiff visited Dr. Izurieta frequently during 1977, 1978, and 1979, complaining of pain and discomfort. In September 1979, Dr. Izurieta arranged for a radiological examination of plaintiff. The examination disclosed a surgical sponge in plaintiff's body. Plaintiff received a telephone call from defendant, who was then residing in Tulsa, Oklahoma, defendant saying to plaintiff that Dr. Izurieta had called him and that when Dr. Izurieta mentioned plaintiff's name, he (defendant) knew "what happened," that when defendant did plaintiff's surgery, a sponge was "left inside." As a result of the circumstances, plaintiff underwent surgery by Harold Newman, M.D., on 20 November 1979. Dr. Newman removed the sponge.

Dr. Newman testified that he was a medical doctor, practicing in surgery in Fayetteville since 1964. He was recognized as an expert witness. Dr. Newman's testimony was, in summary, as follows. Dr. Hall was practicing surgery in Fayetteville when Dr. Newman began practicing in 1964; they practiced together, but were not practicing together in 1976. Dr. Newman knew the training and experience of Dr. Hall; such training and experience was similar to Dr. Newman's. On 20 November 1979, he performed surgery on plaintiff to remove a "foreign substance" disclosed by x-ray. He found a mass of tissue near and involving plaintiff's spleen, near the site where a hiatal hernia operation would take place. The tissue removed by Dr. Newman included the remains of a surgical sponge. It was expectable that plaintiff would experience discomfort from the presence of the sponge "within her." On the standard of practice as to use of sponges during surgical procedures, Dr. Newman testified:

It is in accordance with my standards of practice to make a systematic search before closing the incision in an operation. It is in accordance with my standards of practice to find and remove all sponges before sewing up a patient. It was also in accordance with my standards in 1976. There was no purpose to be served by leaving a sponge in Mrs. Tice in connection with her hiatal hernia.

On cross-examination, Dr. Newman testified as to the use of sponges in surgical procedures as follows:

[I]t is conceivable that during the course of an operation the surgeon could run out of sponges. It does happen. If it happens the hospital personnel, the circulator (a nurse who is not what they call a sterile nurse) gets the additional sponges. She is on the staff of the hospital.

* * *

When I come into the operating room for surgery as I did in the case of Mrs. Tice, the sponges are already there. I did not count them before they came out of the sterile supply. When I go into the operating room, by tradition, I know how many sponges are there. I do not count them. There is a traditional number that is put on each lap pack. The sponges are first counted before the operation starts. The instrument nurse and the circulator nurse count them. They frequently do the count in unison. They write the count down on a pad or a note. It is spoken of as the sponge count. There are notes kept in the operating room by the nurses....

The next usual sponge count is done just prior to the starting of the closure of the wound. This was so in the 1976 and 1979 surgeries of Mrs. Tice. At that point the operation is basically over with. At that point I am ready to close up.

The most inner layer is called the peritoneum. It is a lining of the abdominal cavity. That is the first thing that is closed. The first count is taken before the peritoneum is closed. As soon as you let the operating room circulator know that you are ready to complete the operation, she then proceeds with the sponge count. She tells you the count is correct. The surgeon says, "I am ready to close." It is then she proceeds with this sponge count. She says, "I have a correct sponge count," or something to that effect. At that point the peritoneum is closed.

The next step is to close the next layer.... At that point, there is another count usually assisted by the instrument nurse, there are two of them doing it. After making the count in the fascia, she says "Dr. Newman, I have another correct count." I close the fascia at that point. There is a third layer which is just in front of or anterior to the fascia. When we get to that third layer there is another sponge count by the instrument nurse and the circulator nurse together. This is done after the surgeon has announced that he is ready for the third closure. After the sponge count, the nurse again indicates that they have a correct sponge count and the third layer is then closed. The next closing is the skin. There is no sponge count related to that. There are three sponge counts by two nurses in the employ of the hospital and that terminates the matter unless there is something missing or something wrong.

I have never closed a peritoneum if the nurse reported an incorrect count. If the same has applied as to the second layer, the fascia, the same applies to the third layer.... When I am getting ready to close the peritoneum, I do not...