Bak v Cumberland County Hospital System, (03-994) 08/17/2004

    Appeal by plaintiffs from an order entered 9 October 2001 by Judge Robert F. Floyd, Jr., and from an order entered 2 April 2003 by Judge Ola M. Lewis, both granting summary judgment against plaintiffs and both heard in Cumberland County Superior Court. Heard in the Court of Appeals 22 April 2004.

    Cooper, Davis & Cooper, by James M. Cooper, for plaintiff appellants.

    Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Samuel G. Thompson and Robin A. Ellerbe, for Arnold Barefoot, Jr., M.D., and Women's Wellness Center, P.A., defendant appellees.

    Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Mark E. Anderson, Charles George and Heather R. Waddell, for Cumberland County Hospital System, Inc., d/b/a Cape Fear Valley Medical Center, A. McLaurin, R.N., and S. Hardle, R.N., defendant appellees.

    McCULLOUGH, Judge.

    Before this Court is a personal injury/medical malpractice action alleging damages for injuries to plaintiff Susan K. Bak(“Ms. Bak”) proximately caused by the negligence of defendants and for loss of consortium of her husband, plaintiff Tae In Bak (collectively “plaintiffs”). Defendants are Cumberland County Hospital System, Inc. (d/b/a “Cape Fear Valley Medical Center”), Dr. Stuart Jordan, Dr. Arnold Barefoot (d/b/a “Women's Wellness Center, P.A.”), A. McLaurin, R.N., and S. Hardle, R.N. On 31 July 2000, defendants Dr. Jordan and Dr. Barefoot, and the Women's Wellness Center filed an answer and motion to dismiss. On 2 August 2000, defendants Cape Fear Valley Medical Center (“CFVMC”) and Nurses McLaurin and Hardle filed their answer and motion to dismiss. Then, on 31 August 2001, the Hospital and Nurses McLaurin and Hardle filed a motion for summary judgment which was granted by Judge Floyd on 9 October 2001. Plaintiffs appealed to this Court, but that appeal was dismissed as interlocutory because plaintiffs' case against defendants Dr. Jordan, Dr. Barefoot, and the Women's Wellness Center was still pending in superior court. These defendants then also filed a motion for summary judgment on 17 March 2003. Prior to their hearing, plaintiffs dismissed without prejudice Dr. Jordan on 21 March 2003. Defendants Dr. Barefoot and the Women's Wellness Center were granted summary judgment on 2 April 2003. As all claims and all parties have been rendered a final judgment, the case is properly before this Court.
    The undisputed facts of the case are as follows: Ms. Bak had a history of severe menstrual bleeding. She was first treated by Dr. Barefoot for this condition in 1994. On 9 June 1997, Ms. Bak was admitted for treatment into CFVMC as an obstetrical andgynecological patient of defendant Dr. Barefoot. She received a hysterectomy on 10 June 1997 and received post-operative inpatient care until her release on 14 June 1997. Before the operation of 10 June, Dr. Barefoot informed Ms. Bak of the normal risks of major surgery, one of which was a stroke. After the first full day of care, June 11, she remained stable.
    At 2:00 a.m. on June 12, the nurse on duty was unable to understand Ms. Bak. Dr. Barefoot was notified. Ms. Bak complained of weakness in the left hand and difficulty in speaking. At 2:20 a.m., Dr. Barefoot found no neurological deficit. At 8:10 a.m., still on June 12, Ms. Bak complained of difficulty on her right side. Dr. Barefoot again examined her. Ms. Bak was able to grip his hand strongly, and move her legs on command. He examined her again at 1:00 p.m., and then at 4:00 p.m. At 6:10 p.m., Ms. Bak was noted as being confused and having difficulty speaking, though she was moving all extremities, had equal strength in all her limbs, and was able to grasp with her hands. Dr. Jordan was on shift at that point and was notified. He ordered arterial blood gases. By 6:20 p.m., Ms. Bak was noted as more alert and talking appropriately with no signs of acute distress.
    On June 13th, Ms. Bak was stable. On June 14th, Ms. Bak was discharged at 1:45 p.m. She was later determined as having had a stroke while under the hospital's, doctors', and nurses' care.
    All other relevant facts will be incorporated into the legal issues raised in this appeal and to which we now turn.     Initially, we note and dispose of plaintiffs' claim, first raised in this appeal, that N.C. Gen. Stat. § 90-21.12 (2003) is in violation of the Fourteenth Amendment of the United States Constitution, and Article I, Section 18, of the North Carolina Constitution. This issue is not properly before the Court as it was neither argued in the lower court, nor assigned as error in the record. Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002).
    Plaintiffs' assignments of error relate to all defendants collectively, and all pertain to the same three legal issues. Plaintiffs' first issue is that summary judgment was improperly ordered in favor of all defendants as the two orders failed to consider ordinary negligence; their second issue is that the trial courts failed to considered the doctrine of res ipsa loquitur in plaintiffs' medical malpractice claims; and lastly, plaintiff contends the trial courts erred in granting summary judgment based on plaintiffs' failure to provide evidence to establish the medical malpractice standard of care of defendants Dr. Barefoot and Nurses McLaurin and Hardle. Pursuant to the analysis herein, we find the trial court orders properly granted summary judgment in favor of defendants.

    Plaintiffs contend that both trial courts failed to consider in their summary judgment orders claims of ordinary negligence against defendants. We do not agree.
    Pursuant to Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure, “a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. 10(b)(1) (2003). Additionally, our Supreme Court has held that pleadings have a binding effect as to the underlying theory ofplaintiff's negligence claim. Anderson, 356 N.C. at 417, 572 S.E.2d at 102-03.
    A “medical malpractice action” is defined by statute:
        [It] means a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.

N.C. Gen. Stat. § 90-21.11 (2003) (emphasis added). “Health care provider” is a term also defined in the medical malpractice statute as someone who is “registered or certified to engage in the practice of or otherwise performs duties associated with . . . medicine, surgery . . . nursing . . . ; or [are] a hospital[.]” Id. This Court has held that negligence actions against “health care providers” may be based upon breaches of the ordinary duty of reasonable care where the alleged breach does not involve rendering or failing to render professional services requiring special skills. Duke University v. St. Paul Fire and Marine Ins. Co., 96 N.C. App. 635, 640-41, 386 S.E.2d 762, 775-76, disc. review denied, 326 N.C. 595, 393 S.E.2d 876 (1990); Burns v. Forsyth Co. Hospital Authority, 81 N.C. App. 556, 565-66, 344 S.E.2d 839, 846 (1986); Norris v. Hospital, 21 N.C. App. 623, 626, 205 S.E.2d 345, 348 (1974).
    In the case at bar, it is clear from reading plaintiffs' complaint and amended complaint that their underlying theory of negligence is a claim of medical malpractice. See N.C. Gen. Stat. §§ 90-21.11, et seq. (2003). All defendants made a party in thecomplaints are “health care providers,” a fact alleged in plaintiffs' complaint and amended complaint. Furthermore, all claims alleged against these defendants arise out of the rendering or failing to render professional services relating to the pre- operative and post-operative care of Ms. Bak which resulted in her stroke. The breach of duty alleged in the complaint and amended complaint goes to the duties imposed on nurses and doctors rendering their professional services, and not those duties of the reasonable prudent person. Burns, 81 N.C. App. at 565, 344 S.E.2d at 846 (applying the reasonably prudent person standard to the hospital where the cause of action did not arise out of the furnishing of professional services).
    We are bound by the pleadings in this case. Plaintiffs' claims give clear notice of a prima facie case for a medical malpractice theory of negligence. No allegations in the complaint or amended complaint relate to actions taken by defendants which fall outside their duties and special skills as health care providers. Therefore, as to all defendants, this assignment of error is overruled.

    Next plaintiffs contend the trial court erred in determining that the doctrine of res ipsa loquitur did not apply to plaintiffs' claims. We do not agree.
    The doctrine of res ipsa loquitur allows the finder of fact to draw an inference of negligence from the circumstances surrounding an injury when (1) “the injury is of a type that does notordinarily occur in the absence of some negligent act or omission,” (2) “direct proof of the cause of [the] injury is not available,” and (3) “the instrumentality involved in the accident is under the defendant's control.” Russell v. Sam Solomon Co., 49 N.C. App. 126, 130, 270 S.E.2d 518, 520 (1980), disc. review denied, 301 N.C. 722, 274 S.E.2d 231 (1981). An inference of negligence created by res ipsa will defeat a motion for summary judgment despite a defendant's forecast of evidence tending to establish absence of negligence. Mitchell v. Saunders, 219 N.C. 178, 183-84, 13 S.E.2d 242, 245-46 (1941). Regardless, the burden of proving negligence remains with plaintiff; accordingly, the finder of fact may reject the permissible inference of negligence even though the defendant presents no evidence. Schaffner v. Cumberland County Hosp. System, Inc., 77 N.C. App. 689, 691-92, 336 S.E.2d 116, 118 (1985), disc. reviews denied, 316 N.C. 195, 341 S.E.2d 578-79 (1986). However, Courts have applied the doctrine more strictly in medical malpractice claims.
        The precautions in applying res ipsa to a medical malpractice action stem from an awareness that the majority of medical treatment involves inherent risks which even adherence to the appropriate standard of care cannot eliminate. This, coupled with the scientific and technical nature of medical treatment, renders the average juror unfit to determine whether plaintiff's injury would rarely occur in the absence of negligence. Unless the jury is able to make such a determination plaintiff clearly is not entitled to the inference of negligence res ipsa affords. To allow the jury to infer negligence merely from an unfavorable response to treatment would be tantamount to imposing strict liability on health care providers. Once plaintiff's proof has addressed these concerns, however, no bar to application of res ipsa in medical malpractice actions exists.

Id. at 692, 336 S.E.2d at 118 (citations omitted). Thus, this Court has “'consistently reaffirmed that res ipsa loquitur is inappropriate in the usual medical malpractice case, where the question of injury and the facts in evidence are peculiarly in the province of expert opinion.'” Diehl v. Koffer, 140 N.C. App. 375, 380, 536 S.E.2d 359, 363 (2000) (quoting Bowlin v. Duke University, 108 N.C. App. 145, 149, 423 S.E.2d 320, 323 (1992)).
    In the case at bar, the question for the average juror is whether a stroke is an injury of a type that does not ordinarily occur in the absence of some negligent act or omission when conducting a hysterectomy. We believe the answer to this question is not in the province of the average juror's common knowledge and experience.
    The plaintiffs' expert, Dr. Young W. Ahn, testified to the following in a deposition:
        Q: Just from having a total abdominal          hysterectomy, she is at risk of having a stroke?

        A:    That's correct.

        Q: So that she may have had the stroke         totally independent and separate from the fact she got any transfusion, or she got any fluid? Isn't that fair?

        A: That is very rare, but it can happen,          sure.

        Q:    Yes, sir. That's why it's written in all
        the consent forms that you may have a stroke, isn't it?
        A:    That's right.

        Q:    And that's what he put--that's what he
        documented telling her, right?

        A:    That's right.

        Q:    And that's what you tell your patients?

        A:    That's right.

Dr. Ahn's testimony reveals some conflict as to what caused the injury to Ms. Bak, whether it was the surgery or it was an independent stroke. Additionally, this testimony reveals that a stroke may in fact be an injury that is of a type that ordinarily occurs in the absence of some negligent act or omission when conducting a hysterectomy. These are not determinations an average juror can make based on common knowledge and experience. Diehl, 140 N.C. App. at 378-79, 536 S.E.2d at 363 (The court did not believe the proper standard of care or surgical procedure for gallbladder removal nor its attendant risks were within the common knowledge or experience of a jury); c.f. Schaffner, 77 N.C. App. 689, 691-92, 336 S.E.2d 116, 118 (Res ipsa loquitur applied where a burn injury to plaintiff was caused by a malfunctioning medical instrument); c.f. Mitchell, 219 N.C. at 182, 13 S.E.2d at 245; Fox v. Green, 161 N.C. App. 460, 588 S.E.2d 899 (2003); Tice v. Hall, 310 N.C. 589, 313 S.E.2d 565 (1984); Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932); Hyder v. Weilbaecher, 54 N.C. App. 287, 283 S.E.2d 426 (1981), disc. review denied, 304 N.C. 727, 288 S.E.2d 804 (1982) (These Courts applied res ipsa loquitur to instances where foreign bodies, such as sponges, towels, needles,glass, etc., were introduced into the patient's body during surgical operations and left there). As to all defendants, this assignment of error is overruled.

    Plaintiff's final assignments of error relate to the lower courts' grant of summary judgment on the grounds that plaintiffs failed to provide expert testimony to establish defendants' proper standard of care in accordance with the North Carolina's medical malpractice statute and rules of evidence.
    N.C. Gen. Stat. § 90-21.12 (2003), relating to the standard of care to be proved in a medical malpractice claim, provides that:
            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.

Id. (emphasis added). In addition to the “same or similar communities” requirement for establishing the proper standard of care for medical malpractice claims, our rules of evidence require:
            (b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state 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.

N.C. Gen. Stat. § 8C-1, Rule 702(b) (2004) (emphasis added). The law is clear that to comply with N.C. Gen. Stat. § 90-21.12 by establishing the relevant standard of care of a specialist, the plaintiffs' expert testimony must be admissible under Rule 702(b) as being a specialist in the same field, or whose speciality includes performance of the procedure at issue.
    Although it is not necessary for the witness testifying as to the standard of care to have actually practiced in the same community as the defendant, see Warren v. Canal Industries, 61 N.C. App. 211, 215-16, 300 S.E.2d 557, 560 (1983), the witness must demonstrate that he is familiar with the standard of care in the community where the injury occurred, or the standard of care of similar communities. See, e.g., Henry v. Southeastern OB-GYN Assocs., P.A., 145 N.C. App. 208, 210, 550 S.E.2d 245, 246-47, aff'd per curiam, 354 N.C. 570, 557 S.E.2d 530 (2001); Tucker v. Meis, 127 N.C. App. 197, 198, 487 S.E.2d 827, 829 (1997). The “same or similar community” requirement was specifically adopted to avoid the imposition of a national or regional standard of care for health care providers. See Henry, 145 N.C. App. at 210, 550 S.E.2dat 246; Page v. Hospital, 49 N.C. App. 533, 535, 272 S.E.2d 8, 10 (1980).
    In the case at bar, the deposition of defendant Dr. Barefoot taken by plaintiffs establishes that he is a board-certified specialist as an obstetrician and gynecologist (OB-GYN) and practiced at CFVMC in Cumberland County for the relevant time period.
    The deposition of plaintiffs' expert Dr. Ahn, established that he is an OB-GYN specialist, who practiced and taught at Emory University Medical Center's University Clinic during the relevant time period. He testified that, by a national standard of care, plaintiff was not treated properly for her anemic condition before the surgery, that the surgery should have been postponed, and that not properly preparing the patient for surgery was one of the causes of her stroke. However, Dr. Ahn's testimony revealed the following:
        Q:    Okay. Now, Dr. Ahn, today you have spoken
        about standard of care, and you have told Mr. Cooper, the Plaintiffs' lawyer, that by standard of care you are referring to a national standard of care; is that correct?

        A:    Yes.

        Q: And is it also correct that you are not         licensed to practice medicine in the State of North Carolina?

        A:    That's correct.

        Q: And you have never practiced in North          Carolina because that would be unlawful; is that correct?

        A:    That's correct.
        Q:    And you have never been to the Cape Fear
        Valley Hospital; is that correct?

        A:    That's correct.

        Q: And you have never been to any other          medical facility in the State of North Carolina; is that correct?

        A:    That's correct.

        ****

        Q:    And so when you give your opinions about
        standard of care, you are making the assumption that the standard of care is the same all over the United States? That there is a national standard of care, correct?

        A:    That's correct.

We have recognized very few medical procedures to which a national standard may apply, and to which an expert may testify. Henry, 145 N.C. App. at 211, 550 S.E.2d at 247. See Haney v. Alexander, 71 N.C. App. 731, 736, 323 S.E.2d 430, 434 (1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985) (allowing expert medical witness to testify that taking and reporting vital signs of a deteriorating patient was the same for nurses in accredited hospitals across the country); Page, 49 N.C. App. at 536, 272 S.E.2d at 10 (“[N]ursing practices in connection with patients' use of a bedpan are so routine and uncomplicated that the standard of care should not differ appreciably between . . . neighboring counties[.]”). Plaintiffs have not cited a case in which this Court has recognized a national standard of care for an OB-GYN's conducting hysterectomies, nor to the more specific particularities of pre-operative and post-operative treatment of a hysterectomy patient with an anemic condition.
    Therefore, Dr. Ahn's testimony is insufficient to raise an issue of fact as to whether Dr. Barefoot breached his standard of care in Fayetteville, North Carolina, during the relevant time period. Dr. Ahn's testimony reveals he was applying a national standard of care, and was thus insufficient under N.C. Gen. Stat. § 90-21.12 and its “same or similar community” requirement. Furthermore, a hysterectomy is a procedure not of the kind which fits within the narrow exception of procedures so uniform, routine, and uncomplicated, that a national standard of care can be applied.
    Additionally before the trial court was the deposition of plaintiffs' expert Dr. Edward Feldman. At the time of his testimony, Dr. Feldman was certified by the Board of Psychiatry and Neurology, an area of practice he testified was different from that of an OB-GYN. He testified that he was not knowledgeable with respect to the standards of practice for an OB-GYN practicing in Fayetteville.
    For their contention that Dr. Feldman's testimony is not admissible as that of an expert under Rule 702, defendants cite Allen v. Carolina Permanente Med. Grp., P.A., 139 N.C. App. 342, 533 S.E.2d 812 (2000). In Allen, the Court held that a general surgeon did not qualify as an expert witness in a medical 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 816-17. Thus, the general surgeon admitted he did not specialize in the same or similar specialty as that of the defendant family practitioner. See c.f. Sweatt v. Wong, 145 N.C. App. 33, 38, 549 S.E.2d 222, 225 (2001) (where we held an emergency room physician was qualified to testify against a general surgeon (defendant) as evidence showed they engaged in some of the same diagnostic procedures).
    We agree that the principles of Allen govern this case. There is nothing to suggest that Dr. Feldman, as a certified neurologist, specialized in the same or similar practice of an OB-GYN. N.C. Gen. Stat. § 8C-1, Rule 702(b)(1)(b). Alternatively, there is no forecast of evidence that Dr. Feldman “[s]pecialize[s] in a similar speciality which includes within its specialty the performance of a [hysterectomy].” Id.
    The gravamen of plaintiffs' argument is that Dr. Feldman, as a neurologist, is an expert as to the standard of care applied by other specialists, such as an OB-GYN, when these other specialists are on notice or should be on notice that a patient is suffering from a latent neurological condition. We cannot agree. What is at issue in this case is determining at what point an OB-GYN or adoctor whose specialty includes hysterectomies, applying the standard of care in Fayetteville or one of a similar community, should actually be on notice of a latent neurological condition. We believe that only an OB-GYN or a doctor whose specialty includes hysterectomies and who practices in conformance to the standard of care of the local specialist in the same field of medicine, are capable of articulating the relevant standard of care. To allow a neurologist to testify as an expert on this issue would hold an OB- GYN to a standard of care beyond that of their own specialty.
    Finally, as to defendants Nurses McLaurin and Hardle, plaintiffs have offered no expert testimony for the standard of care of a practicing nurse in Fayetteville in 1997. As we held in section (I) of this opinion, this is a medical malpractice action as defined by N.C. Gen. Stat. § 90-21.11. Therefore, plaintiffs must demonstrate by the testimony of a qualified expert that the treatment administered by defendant nurses was in negligent violation of the accepted standard of medical care in the same or similar communities. Tripp v. Pate, 49 N.C. App. 329, 332, 271 S.E.2d 407, 409 (1980). In instances where plaintiffs failed to offer expert testimony demonstrating this standard of care, we have denied plaintiffs' ability to carry the issue to a jury. Id. (directed verdict upheld against a plaintiff who failed to present any evidence of the standard of care for a hospital in her town or similar communities regarding the time necessary for nurses to report test results); see also Moore v. Reynolds, 63 N.C. App. 160, 165, 303 S.E.2d 839, 842 (1983) (where plaintiff relied on thedefendant doctor's testimony to establish negligence in regard to the relevant standard of care, the lower court's directed verdict upheld in favor of the doctor when his testimony did not establish negligence); Clark v. Perry, 114 N.C. App. 297, 312, 313, 442 S.E.2d 57, 65-66 (1994) (where we upheld a directed verdict in favor of a defendant hospital when plaintiff attempted to rely on the decedent's religious beliefs as establishing the relevant standard of care without putting on expert testimony).
    Defendants Nurses McLaurin and Hardle have forecast evidence that the performance of their duties was in accord with the proper standard of care. In the record is the affidavit of Nurse Debra Coston, stating the following:
            4. By virtue of my training and experience, I am familiar with the standard of practice applicable to nurses with training and experience the same or similar to that of the nurses treating Susan Bak, practicing in Fayetteville, Cumberland County, North Carolina, or similar communities.

            5. Based upon my personal familiarity with the standards of practice, my own training and experience, and my review of the materia of record in this matter, it is my opinion that the nurses at Cape Fear Valley Medical Center fully complied with the standard of care with regard to their treatment of Susan Bak between June 10 and June 14, 1997.

As plaintiffs offered no evidence to rebut this testimony, we can find no issue of material fact that defendant nurses failed to conform to the proper standard of care in their care of Ms. Bak. Furthermore, despite plaintiffs' contention, we find the recorddevoid of statements by Dr. Barefoot that defendant nurses failed to provide the requisite standard of care.
    After a close reading of the briefs, record, and depositions, we find that the lower court orders granting summary judgment in favor of Dr. Barefoot and Nurses McLaurin and Hardle were proper. Furthermore, as defendants Women's Wellness Center and CFVMC were made party to this case under principles of agency, summary judgment as to those defendants was also proper. Those orders are hereby
    Affirmed.
    Judges HUDSON and LEVINSON concur.
    Report Per Rule 30(e).

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