Weatherford v. Glassman

• Decision Date: 02 June 1998
• Docket Number: No. COA97-885.,COA97-885.
• Citation: 500 S.E.2d 466,129 NC App. 618
• Parties: Dale B. WEATHERFORD, Plaintiff, v. Stuart GLASSMAN, M.D., Defendant.
• Court: North Carolina Court of Appeals

500 S.E.2d 466

129 NC App. 618

Dale B. WEATHERFORD, Plaintiff, v. Stuart GLASSMAN, M.D., Defendant.

No. COA97-885.

Court of Appeals of North Carolina.

June 2, 1998.

Herbert L. Hyde; and G. Edison Hill, Asheville, for plaintiff-appellant.

Roberts & Stevens, P.A. by Isaac N. Northup, Jr. and Jacqueline D. Grant, Asheville, for defendant-appellee.

WALKER, Judge.

In December of 1989, plaintiff consulted defendant regarding recurring right upper quadrant abdominal pains. After an examination, defendant performed an exploratory surgery of plaintiff's abdomen on 15 December 1989. Following surgery, plaintiff remained in the hospital for five days before being released by defendant on 20 December 1989. Later that week, upon plaintiff's request, defendant permitted plaintiff to travel to Charleston, South Carolina to visit her daughter.

While in Charleston, plaintiff began experiencing pain and was admitted to the hospital. Upon examination, it was determined that plaintiff was suffering from streptococcus, a bacterial infection, and peritonitis, an inflammation of the abdominal wall caused by infection or irritation.

On 15 February 1995, plaintiff filed a complaint against defendant in which she alleged the following:

5. At the time of her discharge from the hospital and medical care of Defendant, Plaintiff was heavily infected with streptococcus, and had peritonitis and her infections were clearly ascertainable [from] nurses notes and written hospital records but Defendant did not read said records as he later admitted to Plaintiff, and did not properly examine Plaintiff prior to such discharge, which examination, if properly done, would have revealed the true condition of Plaintiff.

6. Defendant's acts in discharging Plaintiff from the hospital and from his medical care amounted to abandonment of Plaintiff.

...

8. As the direct and proximate result of the said abandonment, negligence and medical malpractice of Defendant, Plaintiff had to be hospitalized, had to undergo surgery, came close to death and suffered bodily pain and mental anguish and pain and was painfully and permanently damaged and disabled and had to undergo expenses for doctors, hospitals and medicine including a permanently disabling condition known as Fibromyalgia all to her great damage in an amount exceeding Ten Thousand ($10,000.00) Dollars.

After answering, defendant filed a motion for summary judgment, which the trial court granted on 15 April 1995.

At the outset, we note that plaintiff has failed to comply with Rule 26(g) of the Rules of Appellate Procedure, which requires that "[t]he body of text shall be presented with double spacing between each line of text." N.C.R.App. P. 26(g). Further, Appendix B to the Rules of Appellate Procedure provides that "[t]he body of the document of petitions, notices of appeal, responses, motions, and briefs should be double-spaced, with captions, headings, and long quotes single-spaced." N.C.R.App. P. Appendix B. A failure to comply with Rule 26(g) could result in the imposition of appropriate sanctions, including dismissal of the appeal, in accordance with Rules 25(b) and 34(b) of the Rules of Appellate Procedure. Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 147-148, 468 S.E.2d 269, 273 (1996). However, pursuant to our discretionary authority under Rule 2 of the Rules of Appellate Procedure, we nevertheless choose to consider the merits of plaintiff's appeal. See N.C.R.App. P. Rule 2.

In a medical malpractice action, a plaintiff must show (1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff. See Lowery v. Newton, 52 N.C.App. 234, 237, 278 S.E.2d 566, 570, disc. review denied, 303 N.C. 711, petition for reconsideration denied, 304 N.C. 195, 291 S.E.2d 148 (1981). N.C. Gen.Stat. § 90-21.12 provides the applicable standard of care in medical malpractice actions:

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.

N.C. Gen.Stat. § 90-21.12 (1997). Further, this Court has announced that:

Usually [the question of] what is the standard of care required of a physician or surgeon is one concerning highly specialized knowledge with respect to which a layman can have no reliable information. As to this, both the court and jury must be dependent on expert testimony. Ordinarily there can be no other guide.

Mazza v. Huffaker, 61 N.C.App. 170, 175, 300 S.E.2d 833, 837, disc. review denied, 309 N.C. 192, 305 S.E.2d 734 (1983), petition for reconsideration denied, 313 S.E.2d 160 (1984).

Summary judgment is a drastic remedy and is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c)(1990); Pressman v. UNC-Charlotte, 78 N.C.App. 296, 300, 337 S.E.2d 644, 647 (1985), disc. review allowed, 315 N.C. 589, 341 S.E.2d 28 (1986). However, summary judgment for the defendant doctor in a medical malpractice action may be appropriate where the plaintiff "fail[s] to produce sufficient evidence of the applicable standard of care, of a breach of that standard of care, and that the damages suffered ... were proximately caused ..." by the defendant doctor. Evans v. Appert, 91 N.C.App. 362, 366, 372 S.E.2d 94, 96,disc. review denied, 323 N.C. 623, 374 S.E.2d 584 (1988). In addition, Rule 56(e) of the North Carolina Rules of Civil Procedure provides, in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

N.C. Gen.Stat. § 1A-1, Rule 56(e)(1990); see also White v. Hunsinger, 88 N.C.App. 382, 384, 363 S.E.2d 203, 204 (1988).

Plaintiff first contends that defendant's expert witness did not establish a prima facie defense to plaintiff's complaint; therefore, summary judgment was inappropriate. However, as this Court has stated, once a defendant doctor submits affidavits in support of his/her motion for summary judgment which aver that he/she has not breached the applicable standard of care, the burden then shifts to the plaintiff to "come forward with specific facts showing a genuine issue for trial." Beaver v. Hancock, 72 N.C.App. 306, 310, 324 S.E.2d 294, 298 (1985).

In support of his motion for summary judgment, defendant submitted the affidavit of Dr. R. Michael Kennerly. In his affidavit, Dr. Kennerly stated that after reviewing plaintiff's medical records, and being familiar with the standards of practice of physicians in similar communities with the same or similar training and experience of defendant, defendant did not breach the applicable standard of care. This evidence was sufficient to shift the burden to plaintiff to show an issue of fact regarding the standard of care defendant owed to plaintiff which would defeat summary judgment.

In opposition to defendant's summary judgment motion, plaintiff alleged that defendant's standard of care in his treatment of plaintiff was "below...