1. Witnesses--expert--medical malpractice--general surgeon
An emergency room physician who was board certified in laparoscopic procedures was
qualified to testify as an expert witness under N.C.G.S. § 8C-1, Rule 702 against defendant
general surgeons as to the applicable standard of care for a laparoscopic cholecystectomy,
because: (1) the witness engaged in the same diagnostic procedures as did defendants, including
an active clinical practice which included diagnosing patients with post-abdominal surgery
complications such as infections; and (2) the witness was engaged in instructing residents in the
emergency department regarding his patients. Furthermore, the admission of this testimony was
not prejudicial error because another expert witness offered testimony from which the jury could
find defendants failed to adhere to the applicable standard of care in their diagnosis and treatment
of the patient.
2. Jury--alternate manner and procedure of selection--employees of sheriff's
department
The trial court did not err in a medical malpractice action by the manner and procedure of
selecting and summoning jurors even though jury selection is handled in Richmond County by
employees of the sheriff's department, because: (1) N.C.G.S. § 9-2.1 allows for alternate
procedures to be utilized for selecting jurors in certain counties, and Richmond County has
utilized this alternate procedure for a number of years; (2) defendant failed to make a timely
objection to the manner in which jurors were selected; and (3) defendant failed to show prejudice
in the manner in which jurors were selected for the jury pool.
3. Agency--apparent--doctors--medical malpractice--motion for judgment
notwithstanding the verdict
The trial court did not err in a medical malpractice action by denying defendant's motion
for judgment notwithstanding the verdict under N.C.G.S. § 1A-1, Rule 50(b) on plaintiff's claim
of apparent agency between defendant doctors, because: (1) the evidence showed the defendant
who performed surgery on the patient told the patient and her family that he was going on
vacation but was leaving the patient in the care of the other defendant doctor whom he believed
would take good care of her; (2) this defendant also informed the patient and her family that the
other defendant doctor had assisted him in the patient's surgery; and (3) the patient and her
family justifiably relied on this defendant's representation of agency.
Maxwell, Freeman & Bowman, P.A., by James B. Maxwell, for
plaintiff-appellee.
Wilson & Iseman, L.L.P., by G. Gray Wilson, for defendant-
appellant Wong.
WALKER, Judge.
This appeal arises out of a medical malpractice action in
which the jury awarded the estate (plaintiff) of deceased Rachel
Sweatt (Sweatt) $850,000 in damages as a result of the joint and
several negligence of general surgeons She Ling Wong (defendant)
and Eugene Stanton (Stanton). Sweatt was admitted to the Emergency
Room of Richmond Memorial Hospital on 12 December 1993 experiencing
extreme abdominal pain. The next day a sonogram revealed multiple
gallstones and possible acute cholecystitis. Dr. Gilbert Arenas
(Dr. Arenas), her family physician, recommended that she see
defendant for a laparoscopic cholecystectomy (lap choley) to remove
Sweatt's gallblader. Defendant advised Sweatt that she would be
out of the hospital within a “couple of days” after the surgery,
which was performed on 14 December 1993. Stanton assisted in the
surgery at defendant's request.
Defendant reported to the Sweatt family that the surgery had
gone well. However, during the time Sweatt would have been
discharged under normal circumstances, she experienced symptoms of
complications which included distention of her abdomen, constant
need of pain medication and listlessness. At this time, defendant
ordered tests, including a series of x-rays of Sweatt's abdomen.
A radiologist interpreted the x-rays “as revealing a large amount
of free air in the abdomen.” Defendant read the x-ray report on 16
December 1993.
On 17 December 1993, before defendant went on vacation, heleft Sweatt in the care of Stanton. According to Stanton,
defendant reported to him that Sweatt probably had some obstruction
in the small intestine or other problems, but that she was
progressing relatively well. Defendant did not report to Stanton
the findings of the x-ray report. Stanton testified that upon
first examining Sweatt on 17 December 1993, he suspected she had an
abdominal abscess; however, he took no action to treat that
infection.
Dr. Arenas, who had continued to visit Sweatt daily, became
increasingly concerned about her deteriorating condition. On 21
December 1993, after learning she had an abnormally high white
blood count, Dr. Arenas ordered a CT scan and consulted with Dr.
Charles Collins (Dr. Collins), a general surgeon. On the same day,
Stanton recorded in Sweatt's chart that she could be discharged
“because she was doing so well.”
As soon as Dr. Collins reviewed Sweatt's records, he
determined she was in need of an emergency, life-saving laparotomy
which he performed later that day. The surgery revealed Sweatt had
a perforation in the lower portion of her stomach caused by the lap
choley procedure. Sweatt was then transferred to the University
of North Carolina Hospital at Chapel Hill under the care of Dr.
Robert Rutledge (Dr. Rutledge). She remained there almost
continuously until 31 March 1994, during which time she underwent
several major surgeries. After being discharged, Sweatt was unable
to return to work due to her weakened physical condition. She
retired from her employment and later died on 12 April 1998.
[1]We first address defendant's assignment of error that thetrial court erred in allowing Dr. David Wellman to tes
tify in that
he was not properly qualified under Rule 702 of the North Carolina
Rules of Evidence. N.C.R. Evid. 702 (1999).
At trial, plaintiff called two expert witnesses who testified
as to the negligence of defendants. The first of the experts, Dr.
Samuel Esterkyn (Dr. Esterkyn), is a board certified general
surgeon practicing and teaching in San Francisco, California. He
was one of the first surgeons in this country to perform lap
choleys and had performed approximately 950 to 1000 such
procedures, continuing on a weekly basis at the time of trial. The
second expert, Dr. David Wellman (Dr. Wellman), is a general
surgeon who was board certified in laparoscopic procedures. In
1990, he became director in the emergency department at Duke
University Medical Center, where he examined and diagnosed patients
who, after surgery, presented signs and symptoms similar to those
of Sweatt. In addition, Dr. Wellman instructed residents in the
emergency department regarding patients he treated.
At the outset, we note this Court has recently addressed the
qualifying of an expert witness within Rule 702, where we held
“[o]rdinarily whether a witness qualifies as an expert is
exclusively within the discretion of the trial judge.” Formyduval
v. Bunn, 138 N.C. App. 381, 385, 530 S.E.2d 96, 99, disc. review
denied, 353 N.C. 262, 546 S.E.2d 93 (2000)(citation omitted). Rule
702 of our Rules of Evidence, which sets forth the qualifications
of an expert witness, provides in pertinent part:
(b) In a medical malpractice action . . ., a
person shall not give expert testimony onthe appropriate standard of health care .
. . unless the person is a licensed
health care provider . . . and meets the
following criteria:
(1) If the party against whom or on
whose behalf the testimony is
offered is a specialist, the expert
witness must:
a. Specialize in the same
specialty as the party against
whom or on whose behalf the
testimony is offered; or
b. Specialize in a similar
specialty which includes within
its specialty the performance
of the procedure that is the
subject of the complaint and
have prior experience treating
similar patients.
(2) During the year immediately
preceding the date of the occurrence
. . . have devoted a majority of his
or her professional time to either
or both of the following:
a. The active clinical practice
[in that specialty] . . . ; or
b. The instruction of students [in
that specialty]. . . .
N.C.R. Evid. 702 (b)(1),(2). In addition, we held “a doctor who is
either board certified in a specialty or who holds himself out to
be a specialist or limits his practice to a specific field of
medicine is properly deemed a 'specialist' for purposes of Rule
702.” Formyduval at 388, 530 S.E.2d at 101. This is because our
legislature intended the term “specialist” to include a broader
category of physicians than those who are board certified. Id. at
389, 530 S.E.2d at 102.
Defendants cite Allen v. Carolina Permanente Med. Grp., P.A.,
139 N.C. App. 342, 533 S.E.2d 812 (2000), in which this Court held
that a general surgeon did not qualify as an expert witness in amedical malpractice case against a physician who was board
certified in family practice medicine. In Allen, we stated the
general surgeon “did not and could not qualify as an expert witness
against [defendant] . . . because family practice is not within the
specialty of general surgery.” Id. at 348, 533 S.E.2d at 815. In
that case, when asked about how the patient should have been
treated, the general surgeon answered “. . . I have an opinion as
to how [the patient] possibly could have been treated, but as far
as the way [the patient] should have been, again it falls in the
expertise out of my field. . . .” Id. at 350, 533 S.E.2d at 816-
817. Thus, the general surgeon admitted he did not specialize in
the same or similar speciality as that of the defendant family
practitioner.
Defendant argues the rule in Formyduval supports his position
that Dr. Wellman, as an emergency room physician, was not qualified
to testify against defendant and Stanton who are general surgeons.
Formyduval at 381, 530 S.E.2d at 96. In Formyduval, the
malpractice action centered around the defendant physicians'
negligence in diagnosis and treatment. Id. at 382-383, 530 S.E.2d
at 98. There, defendant was a general practitioner engaged in
clinical practice and diagnostic work without a specialty. Id. at
382, 530 S.E.2d at 98. The expert witness which plaintiff sought
to proffer specialized in emergency medicine but he was
disqualified because he did not engage in diagnostic work as
defendant nor did he engage in substantial clinical practice. Id.
at 383, 530 S.E.2d at 98. This Court also noted the expert witnessspent more time in administrative duties than in treating patients.
Id. at 391, 530 S.E.2d at 103. This Court further stated “[a]s
plaintiff tendered no other expert witness to testify on the
standard of care applicable to defendant, the trial court also
properly granted defendant's motion for directed verdict.” Id.
We find Formyduval to be distinguished from the instant case.
First, there is evidence Dr. Wellman engaged in the same diagnostic
procedures as did defendants. He had an active clinical practice
which included diagnosing patients with post-abdominal surgery
complications such as infections. In addition to his active
clinical diagnostic practice, Dr. Wellman was also engaged in
instructing residents in the emergency department regarding his
patients. Therefore, Dr. Wellman was properly qualified as an
expert witness under Rule 702(b)(1)(b) and (2).
Additionally, Dr. Esterkyn offered testimony from which the
jury could find defendant and Stanton failed to adhere to the
applicable standard of care in their diagnosis and treatment of
Sweatt. Thus, even in the absence of Dr. Wellman's testimony,
there was sufficient evidence on which the jury could base its
verdict. The trial court did not err in allowing Dr. Wellman to
testify as to the applicable standard of care.
[2]In his second assignment of error, defendant contends the
manner and procedure of selecting and summoning jurors was improper
and prevented him from receiving a fair trial. Defendant contends
the system utilized in Richmond County violates the statutory
requirements because it contains no procedural safeguards to ensurefairness, since jury selection is handled by employees of the
sheriff's department.
The selection of jurors in this State is controlled by N.C.
Gen. Stat. § 9-1 (1999), which provides “there shall be appointed
in each county a jury commission of three members.” It is the duty
of each jury commission to prepare a list of prospective jurors
qualified to serve, using the voter registration records of each
county, as well as a list of licensed drivers residing in each
county. N.C. Gen. Stat. § 9-2(b) and (c)(1999). The jury
commission is then permitted to merge the two lists, remove
duplicate names from each source and then randomly select the names
to form the list from which potential jurors are selected. N.C.
Gen. Stat. § 9-2(e).
N.C. Gen. Stat. § 9-2.1 (1999) further allows for an alternate
procedure to be utilized for selecting jurors in certain counties
and is set forth as follows:
(a) In counties having access to electronic
data processing equipment, the functions of
preparing and maintaining custody of the list
of prospective jurors, the procedure for
drawing and summoning panels of jurors, and the
procedure for maintaining records of names of
jurors who have served, been excused, been
delayed in service, or been disqualified, may
be performed by this equipment, except that
decisions as to mental or physical competency
of prospective jurors shall continue to be made
by jury commissioners.
N.C. Gen. Stat. § 9-2.1 (emphasis added). This alternate procedure
had been utilized in Richmond County for a number of years.
There, a computer program run by a privately owned company
merges a voter registration list with the list of licensed driversin the county and then turns this list over to the jury commission.
The jury commission then eliminates duplicates and disqualifications
before using the list as its juror selection database. The only
individuals who may access this database and have knowledge of its
password consist of the information technology support manager for
the county, as well as two civil employees of the sheriff's
department. When the clerk of court needs a jury pool, the
sheriff's department is notified and one of its two civil employees
accesses the database to enter the number of jurors needed. This
results in a list of randomly selected names arranged in numerical
order. These named persons are then summoned for jury duty by the
sheriff's department.
In this State, a “'mere irregularity on the part of the jury
commissioners in preparing the jury list, unless obviously,
designedly, or intentionally discriminatory, would not vitiate the
list or afford a basis for a challenge to the array.'” State v.
Massey, 316 N.C. 558, 570, 342 S.E.2d 811, 818-819 (1986), quoting
State v. Ingram, 237 N.C. 197, 204, 74 S.E.2d 532, 537 (1952).
Further, the mere failure to follow a statutory requirement, without
a showing or allegation of how such failure affected [the
complainant], is not a sufficient basis to quash the jury list.
State v. Riggs, 79 N.C. App. 398, 339 S.E.2d 676 (1986).
In denying defendant's motion for a new trial, the trial court
found in pertinent part the following:
a. All of the information raised by
[defendant] in his [motion and affidavits]
[were] available to [him] well before the
commencement of this matter on September 7th,1999.
b. At no time prior to September 7th, 1999 or
on the date when this trial commenced, nor at
any time during the course of the trial up to
and through the conclusion of the jury's
verdict, did [defendant] raise any issues or
questions concerning the manner and procedure
of selecting and summoning the jury.
c. During the course of the voir dire
examination of the jury, [defendant] did not
utilize all of his peremptory challenges and,
in fact, according to the record, had two such
challenges remaining when he, through his
counsel, passed on the jury panel as seated
and found them acceptable.
d. The provisions of N.C.G.S. § 9.2-1 for
selecting and summoning a jury venire for the
trial of this action were followed, and there
was no prejudice to any one, including
[defendant], in the manner by which the jury
venire was drawn and summoned for this trial.
e. There was no prejudice to anyone,
including [defendant], by virtue of the fact
that a civil employee of the Sheriff's Office
entered the password that commanded the data
processing equipment to randomly produce a
list of jurors for the September 7, 1999
Session of Superior Court in Richmond County.
f. [Defendant] was not prejudiced in the
manner and procedure of selecting and
summoning the jury venire for the trial of
this action commencing September 7th, 1999.
On appeal, defendant cites Lupton v. Spencer, 173 N.C. 126, 91
S.E. 718 (1917) and Boyer v. Teague, 106 N.C. 576, 11 S.E. 665
(1890), where in each case a new trial was ordered because the
sheriff had been involved in selecting and summoning certain jurors
under an allegation that he was an interested party or that he was
intermeddling or perpetrating a fraud. However, this case differs
from Lupton and Boyer, in that defendant failed to make a timelyobjection to the manner in which jurors were selected, as did
the
defendants in those cases.
Furthermore, based on the findings by the trial court and our
review of the record, we conclude the trial court properly
determined defendant had failed to show prejudice in the manner in
which jurors were selected for the jury pool in this trial. This
assignment of error is therefore overruled.
[3]In his third assignment of error, defendant contends the
trial court erred in denying his motion for judgment notwithstanding
the verdict (JNOV) under Rule 50(b) of our Rules of Civil Procedure
in part because there was no evidence of an agency relationship.
N.C.R. Civ. P. 50(b)(1999). In support of this contention,
defendant specifically contends there was no evidence: (1) he
represented to Sweatt that Stanton was his agent; or (2) that Sweatt
relied upon any representation of an agency relationship between
defendant and Stanton.
A motion for JNOV “is essentially a renewal of an earlier
motion for directed verdict[,]” and “is cautiously and sparingly
granted.” Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362,
368-369, 329 S.E.2d 333, 337-338, affirmed in part and reversed in
part, 313 N.C. 362, 329 S.E.2d 333 (1985)(citations omitted). The
standard is whether the evidence is sufficient “to take the case to
the jury." Abels v. Renfro Corp., 335 N.C. 209, 214, 436 S.E.2d
822, 825 (1993)(citations omitted). Further, “. . . the evidence
must be considered in the light most favorable to the non-movant,
giving the non-movant the benefit of every reasonable inference.” Martishius v. Carolco Studios, Inc., 142 N.C. App. 216, 228,
542
S.E.2d 303, 311 (2001)(citation omitted).
This Court has held that a party can be held liable for another
party's negligence based on the doctrine of apparent agency. This
doctrine holds “a principal who represents to a third party that
another is his agent is liable for harm caused the third party by
the apparent agent if the third party justifiably relied on the
principal's representation.” Hoffman v. Moore Regional Hospital,
114 N.C. App. 248, 252, 441 S.E.2d 567, 570, disc. review denied,
336 N.C. 605, 447 S.E.2d 391 (1994)(citation omitted).
Defendant cites the recent case of Noell v. Kosanin, 119 N.C.
App. 191, 457 S.E.2d 742 (1995), where plaintiff alleged defendant
surgeon was liable for defendant anesthesiologist's negligence under
the doctrine of apparent agency. This Court held the evidence was
sufficient for the jury to consider the issue of apparent agency
where plaintiff's evidence showed defendant anesthesiologist had
provided plaintiff with a pamphlet before surgery stating that he
worked jointly with defendant plastic surgeon. Id. at 197, 457
S.E.2d at 746.
Defendant also cites Hoffman where this Court held even when
agency is established, there nevertheless must be evidence plaintiff
relied on such representation in order to recover under the doctrine
of apparent agency. Hoffman at 252, 441 S.E.2d at 570. In that
case, the plaintiff patient sought to recover damages for alleged
medical negligence from a hospital under the theory of respondeat
superior for the negligence of the treating physician who was foundto be an independent contractor. Id. at 249, 447 S.E.2d at 5
68.
Plaintiff's evidence failed to show reliance in that she “would have
sought treatment elsewhere or done anything differently had she
known for a fact that [defendant surgeon] was not an employee of the
hospital.” Id. at 252, 447 S.E.2d at 570.
Here, the evidence showed defendant told Sweatt and her family
he was going on vacation but was leaving Sweatt in the care of
Stanton, whom he believed would take good care of her. Also,
defendant informed Sweatt and her family that Stanton had assisted
him in her surgery. Prior to that time, neither Sweatt nor any
member or her family had spoken to Stanton nor had they been offered
a choice as to which physician would continue Sweatt's care in
defendant's absence. Sweatt and her family thus justifiably relied
on defendant's representation of agency. These facts, in the light
most favorable to plaintiff, create an issue of whether an agency
relationship exists between defendant and Stanton. Thus, the trial
court did not err in denying defendant's motion for JNOV.
We have carefully considered defendant's remaining assignments
of error and consider them to be without merit.
No error.
Judges HUNTER and TYSON concur.
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