Tripp v. Pate
| Decision Date | 04 November 1980 |
| Docket Number | No. 808SC314,808SC314 |
| Citation | 271 S.E.2d 407,49 N.C.App. 329 |
| Court | North Carolina Court of Appeals |
| Parties | Judith Ann TRIPP (Mercer) v. Eugene PATE, M. D., Kinston Bone and Joint Clinic, P.A., and Lenoir MemorialHospital, Inc. |
Farris, Thomas & Farris by Robert A. Farris, Jr. and Thomas J. Farris, Wilson, for plaintiff-appellant.
Ward & Smith by Thomas E. Harris, New Bern, for defendants-appellees.
By her first assignment of error plaintiff contends the trial court erred in denying certain motions. First, plaintiff argues the trial court erred in denying her pre-trial motion to continue. The granting of a continuance is within the discretion of the trial court judge and absent a manifest abuse of discretion his ruling is not reviewable on appeal. Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972); 12 Strong's N.C.Index 3d Trial § 3.1 (1978). In the case sub judice the basis for plaintiff's motion was that her attorney had been unable to adequately prepare for trial due to a schedule conflict. In denying plaintiff's motion, Judge Rouse noted that plaintiff's attorney no longer had any schedule conflict and that he had over a year to prepare her case for trial. Clearly Judge Rouse did not abuse his discretion in denying plaintiff's motion for a continuance.
Second, plaintiff argues the trial court erred in denying her motion to strike and suppress portions of Dr. Pate's testimony which plaintiff contends were contrary to prior statements in his answers to written interrogatories and in his deposition. Plaintiff contends defendant Pate was under a duty to amend his responses pursuant to Rule 26(e), N.C.Rules Civ.Proc. Without deciding whether defendant was under such a duty, we must overrule this assignment of error. Plaintiff's counsel did not object to Dr. Pate's testimony at the time it was offered, but rather elected to proceed with the presentation of her evidence by offering additional proof through five other witnesses. At the conclusion of all her evidence, plaintiff moved the trial court to strike the testimony of Dr. Pate as to his diagnosis of plaintiff's condition. Such motion was not timely. If it was to have been made properly, it should have been made at the time the testimony was offered. 1 Stansbury's N.C.Evidence § 27, at 69 (Brandis rev.1973).
Plaintiff by her second assignment of error contends the trial court erred in granting defendants' motions for directed verdicts at the conclusion of plaintiff's evidence. N.C.Gen.Stat. § 90-21.12 sets forth the statutory standard of care a plaintiff must establish in medical malpractice actions as follows:
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.
In malpractice cases, plaintiff must demonstrate by the testimony of a qualified expert that the treatment administered by defendant was in negligent violation of the accepted standard of medical care in the same or similar communities and that defendant's treatment proximately caused plaintiff's injury. Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978). Plaintiff argues she presented evidence showing violations of the standards of care owed her by both defendants, the hospital and Dr. Pate, and that the alleged violations were proximate causes of her injury. The question presented by a defendant's motion for a directed verdict is whether all the evidence, which supports the plaintiff's claim, when taken as true, considered in the light most favorable to the plaintiff and given the benefit of every reasonable inference in the plaintiff's favor which may legitimately be drawn therefrom is sufficient for submission to the jury. Contradictions, conflicts and inconsistencies in the evidence must be resolved in plaintiff's favor in determining the sufficiency of the evidence to withstand a motion for directed verdict. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979). With these general principles in mind, we will discuss this assignment separately as to each defendant.
Plaintiff offers two arguments to support her contention that the trial court erred in granting a directed verdict in the defendant hospital's favor. We believe neither argument has merit.
First, plaintiff argues she presented evidence the hospital was negligent in not reporting promptly the results of certain tests ordered by plaintiff's doctors after her surgery, thereby causing a delay in the diagnosis of plaintiff's condition. In order to withstand a motion for directed verdict on this issue, however, plaintiff was required by N.C.Gen.Stat. § 90-21.12, supra, to offer some evidence that the care of the defendant hospital was not in accordance with the standards of practice among other hospitals in the same or similar communities. Plaintiff failed to present any evidence of the standard of care for a hospital in Kinston or similar communities regarding time necessary to report test results.
Second, plaintiff argues she presented evidence the hospital was negligent by failing to provide a sterile atmosphere in its operating room. We disagree. Plaintiff presented ample expert medical testimony at trial that the most opportune time for infection to have become established in her knee was during the time the incision was open in the operating room. Plaintiff, however, failed to present any evidence of lack of sterile conditions in defendant hospital's operating room. Liability in malpractice cases must be based on proof of actionable negligence. Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964).
For the above-stated reasons, we affirm the trial court's granting of a directed verdict in favor of defendant hospital.
Plaintiff offers three arguments to support her contention that the trial court erred in granting a directed verdict in defendant Pate's favor. In our opinion, none of these arguments have merit.
First, plaintiff argues Dr. Pate negligently failed to inform her of the possible consequences of the proposed surgery and therefore, although plaintiff signed consent forms agreeing to the surgery, she did not give an informed consent to the operation. Plaintiff testified at trial that she did not know an infection could have resulted from the surgery and that Dr. Pate had failed to inform her an infection might have resulted. Plaintiff also testified, however, that
I was very anxious to have this surgery done so I could get better and play basketball. The people that I knew that had surgery were back playing ball after a week. No one, nurses, doctors advised me of the dangers or risks that surgery entailed, if they had it would not have changed my mind. (Emphasis added.)
Thus plaintiff herself established that Dr. Pate's alleged failure to inform her of the risks inherent in the surgery was not a proximate cause of her injury. In malpractice cases, "(t)he plaintiff must not only show that the defendant physician or surgeon was negligent, but also that the alleged negligence was the proximate cause or one of the proximate causes of the damage...." 10 Strong's N.C.Index 3d Physicians, Surgeons, and Allied Professions § 20 at 187 (1977).
Second, plaintiff argues she presented evidence that Dr. Pate negligently abandoned her after surgery. We disagree. After he performed the surgery, Dr. Pate left plaintiff in the care of his two associates for a period of five days while he travelled out of town. The record discloses that prior to leaving the hospital, Dr. Pate ordered post-operative care, medication, special diet and chest x-rays for plaintiff. In addition, Dr....
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