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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
KEITH DANIELS, Administrator of
the Estate of LORREN ALAINE
DANIELS, TONYA KOONCE-DANIELS,
and KEITH DANIELS, Individually,
No. 99 CVS 679
DURHAM COUNTY HOSPITAL
CORPORATION d/b/a DURHAM
REGIONAL HOSPITAL; DOE
CORPORATIONS ONE THROUGH
FIVE; and DOE INDIVIDUALS
ONE THROUGH FIVE,
Appeal by plaintiffs from judgment entered 17 October 2002 by
Judge Orlando F. Hudson in Durham County Superior Court. Heard in
the Court of Appeals 16 February 2005.
Burford & Lewis, PLLC, by Robert J. Burford and James W.
Vaughan, for plaintiffs-appellants.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Timothy P. Lehan, Christopher G. Smith, and Kelly L.
Podger, for defendant-appellee.
Plaintiffs Keith Daniels and his wife Tonya Koonce-Daniels
brought suit against defendant Durham County Hospital Corporation
("the Hospital") for the death of their baby, Lorren Alaine
Daniels, due to injuries they contend were sustained during her
delivery. Plaintiffs have appealed from the trial court's order
granting the Hospital summary judgment, arguing that the Hospitalis liable based on (1) its nurses' failure to oppose the delivering
doctor's decision to perform a mid-forceps delivery, (2) the
nurses' failure to obtain plaintiffs' informed consent, and (3) the
Hospital's failure to adopt a policy governing mid-forceps
deliveries. We affirm the trial court's grant of summary judgment
in favor of defendant.
On 1 September 1995, Ms. Koonce-Daniels was admitted to the
Hospital by her private physician, Dr. James Dingfelder, for
induction of labor due to her elevated blood pressure. At
approximately 7:30 a.m. on 2 September 1995, Nurse Clara Butler
Sharpe, an employee of the Hospital, came on duty as Ms. Koonce-
Daniels' primary labor and delivery nurse. Nurse Sharpe had worked
with Dr. Dingfelder for 18 to 19 years.
At 10:30 a.m., Ms. Koonce-Daniels received an epidural to
address her labor pains. Her labor continued through the afternoon
without any signs of fetal distress or maternal compromise. At
3:55 p.m., Ms. Koonce-Daniels was in the second stage of labor, the
point at which she would normally push the baby down further into
the birth canal to complete a normal vaginal delivery. Nurse
Sharpe assessed Ms. Koonce-Daniels at this time and noted that her
vital signs were "stable" and that the baby's heart rate was
"normal." Dr. Dingfelder, however, performed a vaginal examination
of Ms. Koonce-Daniels and determined that the baby was in an
"occiput posterior" position, looking up at her mother's stomach,rather than in the normal position, looking down towards her
Dr. Dingfelder made the decision to perform a forceps delivery
rather than to allow Ms. Koonce-Daniels to begin pushing and
attempt a normal vaginal delivery. At this point, the baby was at
a "plus-two" station in the birth canal. In other words, she had
not yet proceeded far enough along in the birth canal for her head
to be visible during contractions. A forceps delivery performed
upon such a baby is known as a "mid-forceps" delivery. At 4:04
p.m., Dr. Dingfelder used forceps to rotate the baby 180 degrees to
the proper anterior position and then to deliver the baby. He was
assisted in the delivery by Nurse Sharpe and Nurse Kay Parker (also
an employee of the Hospital).
When Lorren was delivered at 4:18 p.m., she was unresponsive,
blue in color, and not breathing. Subsequent examination revealed
that she had been born with a cervical spine injury. She was
paralyzed from the neck down and unable to breathe on her own.
Lorren died from this spinal injury on 11 April 1996.
In 1997, plaintiffs filed suit against Dr. Dingfelder and the
Hospital and its agents, alleging joint and several liability for
negligence and medical malpractice arising out of Lorren's spinal
injury and death. Plaintiffs voluntarily dismissed their claims
against the Hospital in 1998 and later entered into a settlement
agreement with Dr. Dingfelder. On 19 February 1999, plaintiffs re-
filed their claims against the Hospital, asserting causes of actionfor negligence and negligent infliction of severe emotional
After filing an answer and after completion of discovery, the
Hospital moved for summary judgment. In response, plaintiffs
contended that the Hospital was liable based on respondeat superior
(1) for its nurses' failure to oppose the doctor's decision to
perform a mid-forceps delivery by either refusing to assist in the
procedure or by invoking the hospital chain of command policy and
(2) for its nurses' failure to obtain informed consent from
plaintiffs. Plaintiffs further contended that the Hospital was
directly negligent in failing to adopt a policy governing the
performance of mid-forceps deliveries. Following a hearing, Judge
Orlando Hudson entered summary judgment in favor of the Hospital.
Plaintiffs filed a timely appeal of that order.
Standard of Review
"It is well established that the standard of review of the
grant of a motion for summary judgment requires a two-part analysis
of whether, (1) the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material
fact; and (2) the moving party is entitled to judgment as a matter
of law." Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d
629, 630 (2000) (internal quotation marks omitted), aff'd per
curiam, 353 N.C. 445, 545 S.E.2d 210 (2001). The moving party has
the burden of establishing the absence of any genuine issue of
material fact and that it is entitled to judgment as a matter oflaw. Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572,
515 S.E.2d 438, 441 (1999). Both before the trial court and on
appeal, the evidence must be viewed in the light most favorable to
the non-moving party and all inferences from that evidence must be
drawn against the moving party and in favor of the non-moving
party. Id. We review the trial court's grant of summary judgment
de novo. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 167,
571 S.E.2d 849, 851 (2002).
The Nurses' Failure to Oppose the Doctor's Decision
With respect to plaintiffs' claim regarding the nurses'
failure to oppose the doctor's decision to deliver plaintiffs' baby
by way of a mid-forceps delivery, defendants initially contend that
the record contains insufficient evidence of proximate cause. We
need not, however, address that issue because we agree with
defendant's alternative contention that plaintiffs' evidence is not
sufficient to meet the standard set forth in Byrd v. Marion Gen.
Hosp., 202 N.C. 337, 162 S.E. 738 (1932).
Under Byrd, a nurse may not be held liable for obeying a
doctor's order unless "such order was so obviously negligent as to
lead any reasonable person to anticipate that substantial injury
would result to the patient from the execution of such order or
performance of such direction." Id. at 341, 162 S.E. at 740. The
Court stressed that "[t]he law contemplates that the physician is
solely responsible for the diagnosis and treatment of his patient.
Nurses are not supposed to be experts in the technique of diagnosisor the mechanics of treatment." Id. at 341-42, 162 S.E. at 740
Although these principles were set out more than 70 years ago,
they remain the controlling law in North Carolina. Blanton v.
Moses H. Cone Mem'l Hosp., Inc., 319 N.C. 372, 376, 354 S.E.2d 455,
458 (1987). Plaintiffs refer repeatedly to the responsibilities of
the "delivery team" and argue for a collaborative process with
joint responsibility. While medical practices, standards, and
expectations have certainly changed since 1932 and even since 1987,
this Court is not free to alter the standard set forth in Byrd and
In applying Byrd, this Court has stated: "While a nurse may
disobey the instructions of a physician where those instructions
are obviously wrong and will result in harm to the patient, the
duty to disobey does not extend to situations where there is a
difference of medical opinion." Paris v. Michael Kreitz, Jr.,
P.A., 75 N.C. App. 365, 380, 331 S.E.2d 234, 245 (internal
citations omitted), disc. review denied, 315 N.C. 185, 337 S.E.2d
858 (1985). In Paris, this Court noted that while the negligence
of the doctor was a question of fact, "it is clear that the
negligence was not so obvious as to require [the nurse] to disobey
an instruction or refuse to administer a treatment [because] . . .
[a]ny disagreement or contrary recommendation she may have had as
to the treatment prescribed would have necessarily been premised on
a separate diagnosis, which she was not qualified to render." Id.
at 381, 331 S.E.2d at 245. Here, although plaintiffs' expert witness affidavits list ten
functions that nurses perform in the course of a mid-forceps
delivery, plaintiffs do not contend that the defendant nurses were
negligent in performing those functions. Instead, plaintiffs
contend that the nurses should have challenged the doctor's
decision and, if unsuccessful in changing that decision, should
have "refused to participate as a part of Tonya Daniels's labor and
delivery team in the non-indicated and unconsented-to mid-forceps
rotation and delivery." (Emphasis omitted.)
Based on our review of plaintiffs' evidence, even if there is
an issue of fact regarding the negligence of Dr. Dingfelder, that
evidence does not establish that the negligence was so obvious as
to require the nurses to refuse to obey the doctor. In arguing
that the nurses should have challenged the doctor's order,
plaintiffs discuss factual issues regarding "clinical indications,"
the level of the baby in the birth canal, the degree of maternal
and fetal distress, and the viability and appropriateness of
proceeding to stage two labor _ all factors underlying a medical
diagnosis and a decision regarding treatment. They argue that the
nurses, in considering all of these factors, should have concluded
that a mid-forceps delivery was not appropriate.
Thus, just as in Paris, plaintiffs present a medical dispute
regarding diagnosis and treatment that nurses are not qualified to
resolve. See N.C. Gen. Stat. § 90_171.20(7) (2003) (providing that
the "practice of nursing by a registered nurse" includes
"[c]ollaborating with other health care providers in determiningthe appropriate health care for a patient but, subject to the
provisions of G.S. 90_18.2 [governing nurse practitioners], not
prescribing a medical treatment regimen or making a medical
diagnosis, except under supervision of a licensed physician"). As
a result, under Byrd, Blanton, and Paris, plaintiffs' evidence
fails to establish a breach of duty by the nurses and accordingly
_ because the claim against the Hospital was based on respondeat
superior _ the trial court properly granted summary judgment to the
Hospital on this claim.
In addition, plaintiffs contend that the nurses and the
Hospital breached a duty to obtain proper informed consent from
plaintiffs even though Ms. Koonce-Daniels' delivery was performed
by her private physician. This Court is, however, bound by Cox v.
, 54 N.C. App. 328, 283 S.E.2d 392 (1981). In Cox
This Court has held that if circumstances
warrant, a physician has a duty to warn a
patient of consequences of a medical
procedure. The physician in this case was
[plaintiff's] own privately retained
physician. Any duty to inform [plaintiff] of
the risks of the procedures would have been on
the privately retained physician, not on the
Hospital or its personnel. Consequently, we
find that the Hospital had no duty to inform
[plaintiff] of the risks and procedures to be
used . . . or to secure his informed consent
when [plaintiff] hired his private physician
to perform the [procedures]. . . . Since we
find no duty on the part of the Hospital to
advise [plaintiff] of the risk involved in the
[procedure] and no duty to obtain his consent,
[plaintiff] could not recover under the facts
of this case, and summary judgment was
at 332-33, 283 S.E.2d at 395-96 (internal citations omitted).
The only contrary authority cited by plaintiffs is Campbell v.
Pitt County Mem'l Hosp., Inc.
, 84 N.C. App. 314, 352 S.E.2d 902
(1987). In Campbell
, two judges agreed, based on the evidence
presented, that the hospital could be held liable for failing to
obtain informed consent. Following an appeal based on the dissent
on that issue, the North Carolina Supreme Court was evenly divided
and accordingly affirmed the Campbell
opinion, but stripped it of
precedential value. Campbell v. Pitt County Mem'l Hosp., Inc.
N.C. 260, 265_66, 362 S.E.2d 273, 276 (1987).
In any event, plaintiffs' showing in this case does not rise
to the level found sufficient in Campbell
. The concurring opinion
clarified that the question before the panel was
"whether a court should instruct a jury regarding a duty which, the
evidence shows, the hospital had imposed on itself." Campbell
N.C. App. at 330, 352 S.E.2d at 911 (Becton, J., concurring). The
concurrence stressed: "Judicial enforcement of a duty that a
hospital imposes upon itself is significantly different than
judicial imposition of a new duty on a hospital." Id.
determined the following evidence to be sufficient to establish
that the hospital had assumed a duty of obtaining informed consent:
(1) expert testimony regarding a nurse's duty to ensure that a
patient is fully informed, and (2) evidence that the "hospital had
a policy requiring labor and delivery room nurses to obtain the
signature of patients on a hospital consent form before delivery."
While plaintiffs in this case presented expert testimony
regarding the nurses' duty, the record contains only two pertinent
policies of the hospital, including (1) a statement of patient's
rights providing that a patient has the right to obtain "[a]s much
information about any proposed treatment or procedure as [the
patient] may need in order to make a decision" and has a right to
"[a]ctive participation in decisions regarding medical care;" and
(2) a "Standard Care Statement: Labor Management" that with
respect to "Patient Education" provides that "[a]ll procedures are
explained and documentation noted." In contrast to Campbell
plaintiffs in this case did not offer any evidence that the
hospital required its nurses to obtain the signed consent of the
(See footnote 1)
Subsequently to Campbell
, this Court reiterated the holding in
after noting Campbell
's lack of precedential value: "[W]e have
expressly declined to . . . impose upon a hospital the duty to
obtain a patient's informed consent before treatment when, as here,
the patient is admitted by a private physician for surgery." Clark
, 114 N.C. App. 297, 315, 442 S.E.2d 57, 67 (1994). We are
not free to disregard Cox
. Any change must be
accomplished by the Supreme Court or the General Assembly. Thetrial court, therefore, properly granted summary judgment on the
informed consent claim.
Hospital Policy on Forceps Deliveries
Finally, plaintiffs contend that the Hospital may be held
directly liable because of its failure to have a policy in place
regarding mid-forceps deliveries. See Bost v. Riley
, 44 N.C. App.
638, 647, 262 S.E.2d 391, 396 (a hospital may be found negligent
for its failure to promulgate adequate rules or policies), disc.
, 300 N.C. 194, 269 S.E.2d 621 (1980). Plaintiffs
offered expert testimony that the hospital should have had such a
policy, but that witness declined to express any opinion as to what
a proper policy would say.
Plaintiffs offered no other evidence as
to the appropriate contents of a policy governing mid-forceps
In the present case, assuming arguendo
that the defendant
Hospital did breach a duty by failing to have proper policies in
place, plaintiffs would have had to present evidence that such a
breach was a "contributing factor" to the baby's injuries and
ultimate death. Id.
at 648, 262 S.E.2d at 397
("Where a hospital's
breach of duty is not a contributing factor to the patient's
injuries, the hospital may not be held liable."). Without,
however, evidence of what a proper policy would have stated, it is
impossible to determine whether such a policy would have precluded
the delivery in this case and thus whether the lack of a policy was
a contributing factor to the baby's injuries. Because of the lack of evidence as to the contents of any
required policy, the trial court properly granted summary judgment
as to this claim as well. Compare Reed v. Granbury Hosp. Corp.
117 S.W.3d 404, 411-13 (Tex. App. _ Fort Worth 2003) (holding that
the trial court properly granted summary judgment on a claim that
a hospital negligently failed to have a protocol on the
administration of a particular drug to stroke patients when the
expert witnesses demonstrated a complete lack of knowledge
regarding the specifics of any other hospitals' protocols
concerning administration of that drug) with Edwards v. Brandywine
, 438 Pa. Super. 673, 684_85, 652 A.2d 1382, 1387-88 (1995)
(holding that the trial court erred in directing a verdict on the
plaintiff's claim that the hospital's policies regarding moving
catheters were inadequate when the plaintiff "introduced evidence
that a 48-hour rule was appropriate, but the hospital had adopted
a different rule allowing catheters to be left in place for as long
as 72 hours").
(See footnote 2)
In sum, we hold that the trial court properly entered summary
judgment for the Hospital based on (1) the lack of evidence to meetthe Byrd
standards; (2) the lack of a duty under Cox
for a hospital or its nurses to obtain the informed
consent of a patient receiving care from a private physician; and
(3) the lack of evidence as to the contents of the policy that
plaintiffs contend the hospital negligently failed to adopt.
Judge HUNTER concurs.
Judge TYSON concurs in separate opinion.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
KEITH DANIELS, Administrator of
the ESTATE OF LORREN ALAINE
DANIELS, TONYA KOONCE-DANIELS,
and KEITH DANIELS, Individually,
No. 99 CVS 0679
DURHAM COUNTY HOSPITAL
CORPORATION d/b/a DURHAM REGIONAL
HOSPITAL; DOE CORPORATIONS ONE
THROUGH FIVE; and DOE INDIVIDUALS
ONE THROUGH FIVE,
TYSON, Judge concurring.
I concur in the decision to affirm the trial court's judgment.
I write separately to further address the issues presented.
In addition to those facts set out in majority's opinion, it
is important to note: (1) Daniels accompanied his wife to the
Hospital and remained present with her at all times; (2) at the
time of delivery in September 1995, Nurse Sharpe, was licensed as
a registered nurse for more than twenty years and had worked with
Dr. Dingfelder for eighteen to nineteen years; (3) around 7:30 a.m.
on 2 September 1995, Nurse Sharpe was also assigned as nurse to
Mrs. Daniels; and (4) Nurse Parker had been a practicing nurse for
Plaintiffs assert the trial court erred by awarding summary
judgment to the Hospital based on finding and concluding as a
matter of law that no act or failure to act by the Hospital or its
agents proximately caused or contributed to the injury and death of
III. Summary Judgment
A. Standard of Review
A portion of our standard of review is set out in the
majority's opinion: summary judgment is proper 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)
In addition to that portion of our standard of review
previously stated, we have also held:
The moving party has the burden of
establishing the lack of any triable issue of
fact. A defendant may show entitlement to
summary judgment by[:] (1) proving that an
essential element of the plaintiff's case is
non-existent[;] or (2) showing through
discovery that the plaintiff cannot produce
evidence to support an essential element of
his or her claim[;] or (3) showing that the
plaintiff cannot surmount an affirmative
defense . . . . Once the party seeking summary
judgment makes the required showing, the
burden shifts to the nonmoving party to
produce a forecast of evidence demonstrating
specific facts, as opposed to allegations,
showing that he can at least establish a prima
facie case at trial.
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 708, 582
S.E.2d 343, 345 (2003), aff'd per curiam, 358 N.C. 137, 591 S.E.2d
520 (2004) (internal quotations and citations omitted) (emphasis
In order to survive a motion for summary judgment in a
negligence action, the plaintiff must show: (1) that defendant
failed to exercise proper care in the performance of a duty owed
plaintiff; (2) the negligent breach of that duty was a proximate
cause of plaintiff's injury; and (3) a person of ordinary prudence
should have foreseen that plaintiff's injury was probable under the
circumstances. Strickland v. Doe, 156 N.C. App. 292, 294, 577
S.E.2d 124, 128 (2003), disc. rev. denied, 357 N.C. 169, 581 S.E.2d
447 (quoting Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463
S.E.2d 567, 569 (1995), disc. rev. denied, 342 N.C. 656, 467 S.E.2d
IV. Nurses' Duties to a Patient
Plaintiffs argue that Nurse Sharpe and Nurse Parker were
negligent by following Dr. Dingfelder's instructions. In Byrd v.
Hospital, and as more recently followed in Blanton v. Moses H. Cone
Hosp., our Supreme Court stated:
nurses, in the discharge of their duties, must
obey and diligently execute the orders of the
physician or surgeon in charge of the patient,
unless, of course, such order was so obviously
negligent as to lead any reasonable person to
anticipate that substantial injury would
result to the patient from the execution of
such order or performance of such direction.
Certainly, if a physician or surgeon should
order a nurse to stick fire to a patient, no
nurse would be protected from liability for
damages for undertaking to carry out theorders of the physician. The law contemplates
that the physician is solely responsible for
the diagnosis and treatment of his patient.
Nurses are not supposed to be experts in the
technique of diagnosis or the mechanics of
Byrd v. Hospital, 202 N.C. 337, 341-42, 162 S.E. 738, 740 (1932)
(emphasis supplied), followed by Blanton v. Moses H. Cone Hosp.,
319 N.C. 372, 354 S.E.2d 455 (1987); see also Paris v. Kreitz, 75
N.C. App. 365, 381, 331 S.E.2d 234, 245 (1985) (it is clear that
the negligence was not so obvious as to require [the nurse] to
disobey an instruction or refuse to administer a treatment
[because] . . . [a]ny disagreement or contrary recommendation she
may have had as to the treatment prescribed would have necessarily
been premised on a separate diagnosis, which she was not qualified
to render. (citing Byrd, 202 N.C. at 337, 162 S.E. at 738).
In Byrd, our Supreme Court also recognized:
If the injury resulted from a peculiar
condition of plaintiff's body, producing
unusual or abnormal susceptibility to [the
treatment], then this was a matter of
diagnosis and lay exclusively within the duty
of the physician, unless, of course, as
hereinbefore indicated, the type of disease
was so pronounced and so well known as to lead
the nurse in the exercise of ordinary care to
202 N.C. at 342-43, 162 S.E. at 741.
In Byrd, as here, there was nothing to indicate to the
nurse[s] that the [procedure to] plaintiff with the acquiescence
and implied approval of the physician was obviously dangerous or
likely to produce harm. 202 N.C. at 343, 162 S.E. at 741.
Testimony in the depositions before the trial court on summaryjudgment show forceps deliveries are common. Nurse Parker
testified that she expected the procedure to be a regular routine
forcep[s] delivery for a first-time mom. Plaintiffs present no
forecast of evidence to show the forceps procedure chosen by Dr.
Dingfelder was obviously dangerous or likely to produce harm.
Id. at 342-43, 162 S.E. at 741.
The trial court did not err by concluding that plaintiffs
failed to show as a matter of law the nurses or the Hospital could
have reasonably anticipate[d] injury or death to Lorren. Id.
V. Act or Failure to Act
Plaintiffs contend the trial court erred by concluding they
failed to show the actions or inactions of the Hospital or its
agents contributed to or proximately caused Lorren's injuries based
on the affidavits of Drs. Dingfelder and Fried.
A. Respondeat Superior
Plaintiffs argue [t]he affidavits of Dr. Dingfelder and of
Dr. Fried do not address all of the negligent acts of the hospital
and its agents. In support of this argument, plaintiffs assert
the Hospital is jointly liable for the negligence of the labor and
delivery team under the theory of respondeat superior.
If an employee is negligent while acting in the course of
employment and such negligence is the proximate cause of injury to
another, the employer is liable in damages under the doctrine of
respondeat superior . . . . Johnson v. Lamb, 273 N.C. 701, 707,
161 S.E.2d 131, 137 (1968) (citing Gillis v. Tea Co., 223 N.C. 470,
27 S.E.2d 283 (1943); West v. Woolworth Co., 215 N.C. 211, 15S.E.2d 546 (1939)). Beyond their broad assertion, plaintiffs
neither presented nor forecasted any evidence to show: (1) that
any of the Hospital's employees were negligent; or (2) that even if
one of the Hospital's employees was negligent, that such negligence
contributed to or was the proximate cause of Lorren's death.
Johnson, 273 N.C. at 707, 161 S.E.2d at 137.
Plaintiff [as the nonmoving party] is required to offer legal
evidence tending to establish beyond mere speculation or conjecture
every essential element of negligence, and upon failure to do so,
[summary judgment] is proper. Young v. Fun Services-Carolina,
Inc., 122 N.C. App. 157, 162, 468 S.E.2d 260, 263, disc. rev.
denied, 344 N.C. 444, 476 S.E.2d 134 (1996) (alterations in
original) (quoting Roumillat v. Simplistic Enterprises, Inc., 331
N.C. 57, 68, 414 S.E.2d 339, 345 (1992)). Without evidence to show
the Hospital's employees were negligent or that such negligence was
the proximate cause of Lorren's death, the trial court did not err
in awarding summary judgment to the Hospital on plaintiffs' claims
for negligence or liability under the theory of respondeat
B. Informed Consent
Next, plaintiffs contend the Hospital negligently failed to
ensure that Mrs. Daniels gave informed consent to the forceps
procedure. Plaintiffs argue the lack of testimony in Drs.
Dingfelder's and Fried's depositions raise genuine issues of
material fact regarding Mrs. Daniels' informed consent. Our Supreme Court has long recognized that hospitals owe a
duty of care to their patients. They must exercise ordinary care
in the selection of their agents. They must make a reasonable
effort to monitor and oversee the treatment their staffs provide to
patients. Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 138,
472 S.E.2d 778, 781 (1996) (citations omitted). Horton, which
extended the continuing course of treatment doctrine to hospitals,
is instructive, but not controlling to the case at bar. 344 N.C.
at 139, 472 S.E.2d at 782.
Here, plaintiffs do not contend the Hospital's actions were
unreasonable but argue the Hospital and its employees were
negligent in failing to obtain Mrs. Daniels' informed consent to
the forceps procedure. Addressing an issue similar to that at bar,
this Court stated:
We are urged to . . . impose a duty upon a
hospital to properly inform and advise a
patient of the nature of a medical procedure
to be performed on him when the patient is
admitted to the hospital for an operation
under the care of his privately retained
physician. We decline to do so.
Cox v. Haworth, 54 N.C. App. 328, 331, 283 S.E.2d 392, 394-95
Plaintiffs contend Sharpe v. Pugh, 270 N.C. 598, 155 S.E.2d
108 (1967), establishes a duty on the Hospital to obtain informed
consent. Sharpe involved an action only against the treating
physician and did not identify or join a hospital as party to that
action nor did the Supreme Court set forth any discussion regardinga hospital's liability. The reasoning in Sharpe is distinguishable
and not controlling to the facts here.
In Campbell v. Pitt County Memorial Hosp., this Court stated
in a split decision:
defendant, under the doctrine of corporate
negligence set forth in Bost v. Riley, 44 N.C.
App. 638, 262 S.E.2d 391, disc. rev. denied,
300 N.C. 194, 269 S.E.2d 621 (1980) as applied
to the specific facts and circumstances of
this case, did have a legal duty to insure
that plaintiffs' informed consent to a vaginal
delivery of a footling breech baby had been
obtained prior to delivery.
84 N.C. App. 314, 322, 352 S.E.2d 902, 907 (1987), aff'd, 321 N.C.
260, 362 S.E.2d 273, overruled on other grounds, Johnson v. Ruark
Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990). Judge Becton, the
authoring judge in Cox, distinguished the facts in Campbell from
those in Cox in his concurring in part, dissenting in part opinion
and explained, In Cox we were asked to determine if a court could
impose such a duty on a hospital. In the case sub judice, we are
asked to determine whether a court should instruct a jury regarding
a duty which, the evidence shows, the hospital had imposed on
itself. Campbell, 84 N.C. App. at 330, 352 S.E.2d at 911 (J.
Becton concurring in part, dissenting in part) (emphasis supplied).
Upon appeal of right based on the dissenting opinion, the
Supreme Court was equally divided in Campbell and ruled, [t]he
decision of the Court of Appeals on this issue is thus left
undisturbed and stands without precedential value. 321 N.C. 260,
266, 362 S.E.2d 273, 276 (1987) (citing Forbes Homes, Inc. v.
Trimpi, 313 N.C. 168, 326 S.E.2d 30 (1985)). This Court in Clarkv. Perry followed Cox and later held, we have expressly declined
to . . . impose upon a hospital the duty to obtain a patient's
informed consent before treatment when, as here, the patient is
admitted by a private physician for surgery. 114 N.C. App. 297,
315, 442 S.E.2d 57, 67 (1994) (citing Cox, 54 N.C. App. at 332-33,
283 S.E.2d at 395-96).
This appeal concerns a motion for summary judgment similar to
Cox and not an appeal addressing jury instructions based on
presentation of the evidence as the issues in Campbell. The dicta
in Campbell is without precedential value and does not address
the issue presented here. 84 N.C. App. at 330, 352 S.E.2d at 911.
Following this Court's holdings in Cox and Clark, plaintiffs
forecast no basis to impose a separate duty on the Hospital to
obtain informed consent without any evidence to support or a
finding to show the treating physician failed to do so. Cox, 54
N.C. App. at 331, 283 S.E.2d at 394-95; Clark, 114 N.C. App. at
315, 442 S.E.2d at 67.
C. Chain of Command
Plaintiffs also argue the Hospital should be held liable
because it failed to have an effective chain of command procedure
in place at the time of Lorren's delivery. Plaintiffs neither
present nor cite to any authority to support this argument. N.C.R.
App. P. 28(b)(6) (2004) (Assignments of error . . . in support of
which no . . . authority [is] cited, will be taken as abandoned.).
Additionally, plaintiffs argue the Hospital made no showing
before the trial court as to why these negligent failures on itspart were not proximate causes of Lorren's death. This argument
is misplaced. Plaintiffs, not the Hospital, carry the burden of
establish[ing] beyond mere speculation or conjecture every
essential element of negligence, including the element of
proximate cause. Young, 122 N.C. App. at 162, 468 S.E.2d at 263
(quoting Roumillat, 331 N.C. at 68, 414 S.E.2d at 345). Without a
forecast of evidence to support this element, plaintiffs cannot
shift their burden to defendants. Summary judgment for the
Hospital on this issue is proper. Id.
D. Interested Parties
Finally, plaintiffs contend the trial court erred in
considering the affidavits and depositions of Drs. Dingfelder and
Fried presented by the Hospital in support of its motion for
summary judgment. Plaintiffs argue that Drs. Dingfelder's and
Fried's testimony were biased because they both were employed by
the Hospital at the time of the alleged negligent acts and have a
personal stake in the outcome. Their argument asserts both doctors
were interested in the outcome of the case which requires a jury,
not the trial court, to act as the fact finder to resolve questions
regarding credibility. State Farm Life Ins. Co. v. Allison, 128
N.C. App. 74, 77, 493 S.E.2d 329, 330 (1997), disc. rev. denied,
347 N.C. 584, 502 S.E.2d 616 (1998).
Plaintiffs fail to identify any specific testimony by the
doctors or any other evidence considered by the trial court to
support their argument. Plaintiffs also fail to forecast any
evidence to contradict the doctors' testimony. Without a forecastof disputed testimony or evidence to create a genuine issue of
material fact, consideration and resolution of any credibility
issues of an alleged interested witness does not deprive the trial
court of its ability to rule on a motion for summary judgment. Id.
Although the facts at bar are tragic, plaintiffs settled and
dismissed their claims with prejudice against the treating
physician, Dr. Dingfelder, without any admission or finding of
liability by him. In asserting claims against the Hospital and its
nurses, plaintiffs have failed to forecast evidence to show a
separate duty imposed on the nurses' or the Hospital's alleged
negligence proximately caused Lorren's injuries.
Plaintiffs also failed to show the trial court erred by
considering the affidavits of Drs. Dingfelder and Fried. Although
the majority's opinion rests on plaintiffs' failure to establish
any genuine issue of material fact of defendants owing a duty or
breach of that duty, the trial court alternatively did not err by
concluding that plaintiffs failed as a matter of law to produce a
forecast to show that the Hospital's or its agents' acts, or
failure to act, contributed to and proximately caused Lorren's
injury or death. Draughon
, 158 N.C. App. at 708, 582 S.E.2d at 345
(quoting Gaunt v. Pittaway
, 13 N.C. App. 778, 784-85, 534 S.E.2d
660, 664 (2000)).
Having carefully reviewed the record and evidence before the
trial court on the Hospital's motion for summary judgment, as wellas plaintiffs' briefs and oral arguments on appeal, I concur to
affirm the trial court's judgment.
Plaintiffs also refer to excerpts from the Joint Commission
on the Accreditation of Hospitals ("JCAH") standards applicable to
the Hospital. Our Supreme Court has held that evidence a hospital
failed to follow JCAH safety standards is "some evidence of
, 319 N.C. at 376, 354 S.E.2d at 458.
Nothing, however, in the provided excerpts purports to place a duty
on nurses, in addition to the private physician, to obtain informed
Plaintiffs have also contended that the trial court erred in
considering the affidavits and depositions of Drs. Dingfelder and
Fried that were submitted by the Hospital in support of its motion
for summary judgment because both doctors were interested in the
outcome of this case. See State Farm Life Ins. Co. v. Allison
N.C. App. 74, 77, 493 S.E.2d 329, 330 (1997), disc. review denied
347 N.C. 584, 502 S.E.2d 616 (1998). We need not, however, address
these arguments since our opinion affirming summary judgment in
favor of defendants does not rely on the content of those
affidavits and depositions.
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