No. 02 CVS 755
WILLIAM ARTHUR BRANNER, III,
M.D. and CHARLOTTE
OPHTHALMOLOGY CLINIC, P.A.,
Marsh & Marsh, by William A. Marsh, III, for plaintiff-
Golding Holden & Pope, L.L.P., by John G. Golding, for defendants-appellees.
Marvin Norman (plaintiff), a sixty-seven-year-old retired machinist, was mowing his lawn at approximately 4:00 p.m. on 20 September 1999, when an object flew out from the mower and struck him in the corner of his right eye. Plaintiff's cousin took plaintiff to Carolinas Medical Center, and plaintiff's wife (Mrs. Norman) soon arrived at the hospital. Plaintiff was first examined by a nurse, who informed plaintiff that a specialist would be coming in to see him. At some time after 7:00 p.m., defendant Dr. William Branner, III (Dr. Branner) examined plaintiff's eye.
Plaintiff waited for an estimated two hours before an x-ray wasmade of plaintiff's eye. After the x-ray was made, Dr. Branner operated on plaintiff's eye. Plaintiff woke up in intensive care, still feeling pain in his right eye. Plaintiff did not remember speaking to Dr. Branner after the surgery and did not remember Dr. Branner telling him what he found during surgery. At around 10:00 p.m., Dr. Branner spoke to Mrs. Norman and informed her that he was not able to find any objects in plaintiff's eye but had sewn up a "star-like cut" in plaintiff's eye.
After surgery, plaintiff informed Dr. Branner and other hospital staff that he was still in pain. Dr. Branner gave plaintiff some medication for the pain and told plaintiff that "everything was going to be all right." Plaintiff remained in the hospital until about 6:00 p.m. the next day, when Dr. Branner discharged him with prescriptions and instructions to come to his office on 23 September 1999.
After plaintiff returned home, his pain worsened and he had a fever. Mrs. Norman called Dr. Branner's office and informed the staff of plaintiff's symptoms. A staff member told Mrs. Norman to give plaintiff Tylenol and bring plaintiff in for his scheduled appointment on 23 September 1999. When plaintiff's symptoms continued, Mrs. Norman again called Dr. Branner's office, and Dr. Branner's staff repeated the same instructions.
Plaintiff went to Dr. Branner's office on 23 September 1999 for his scheduled appointment. Dr. Branner looked at plaintiff's eye and telephoned another doctor, Dr. Antoszyk. Mrs. Norman spoke with Dr. Antoszyk on the telephone. Dr. Antoszyk asked Mrs. Norman tobring plaintiff to Presbyterian Hospital, where Dr. Antoszyk would be waiting. Mrs. Norman took plaintiff to Presbyterian Hospital. Dr. Antoszyk removed an object from plaintiff's eye, and plaintiff's pain instantly subsided. However, Dr. Antoszyk was unable to save plaintiff's eye and the eye had to be removed.
Plaintiff filed a complaint for medical malpractice against defendants. In an order entered 12 February 2004, the trial court granted a directed verdict for defendants pursuant to Rule 50 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 50 (2003). Plaintiff appeals.
Plaintiff argues that the trial court erred by granting a directed verdict for defendants because the evidence shows that Dr. Branner's breach of the standard of care proximately caused plaintiff's injury. Plaintiff contends that the jury should have been allowed to decide if the alleged deviation from the standard of care was a proximate cause of plaintiff's injury. We disagree.
In order to withstand a motion for directed verdict, a plaintiff is required to supply evidence that establishes the following: "(1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages." Bridges v. Shelby Women's Clinic, P.A., 72 N.C. App. 15, 19, 323 S.E.2d 372, 375 (1984), disc. review denied, 313 N.C. 596, 330 S.E.2d 605 (1985) (citing Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570, disc. review denied, 304 N.C. 195, 291 S.E.2d 148 (1981)). If a plaintiff fails to present sufficient evidence to establish any one of these elements, a defendant is entitled to a directedverdict. Bridges, 72 N.C. App. at 19, 323 S.E.2d at 375.
In the case before us, defendants contend that proximate cause is lacking. "In a medical malpractice action, the plaintiff must prove that . . . the defendant's treatment proximately caused the injury." White v. Hunsinger, 88 N.C. App. 382, 383, 363 S.E.2d 203, 204 (1988) (citing Ballenger v. Crowell, 38 N.C. App. 50, 54, 247 S.E.2d 287, 291 (1978)). Further, the connection or causation between the negligence and the damage "must be probable, not merely a remote possibility." White, 88 N.C. App. at 387, 363 S.E.2d at 206 (citing Bridges, 72 N.C. App. at 20-22, 323 S.E.2d at 376).
Plaintiff specifically cites as breaches of the standard of care that were the proximate cause of plaintiff's injury: (1) Dr. Branner's failure to order a CT scan; (2) Dr. Branner's failure to prescribe certain antibiotics; and (3) Dr. Branner's failure to instruct plaintiff to come to his office after plaintiff called complaining of pain and fever. However, plaintiff's own expert, Dr. Stephen Katz (Dr. Katz) testified at trial that the object in plaintiff's eye "could be missed on a CT scan, but it is more likely to be picked up on a CT scan[,]" and that it was possible that plaintiff's eye could have been lost even if plaintiff had gone into Dr. Branner's office when he called Dr. Branner's office complaining of pain and fever. Dr. Katz stated that "if everything was done exactly right it's possible to lose that eye." He also stated that "[the] eye may have had a poor outcome with or without appropriate treatment."
Dr. Katz's testimony was the only evidence of malpracticesubmitted by plaintiff. The testimony shows that Dr. Katz was unable to conclude that Dr. Branner's actions were the proximate cause of plaintiff's injury. Thus, plaintiff did not put forth evidence that establishes proximate cause, and defendants were entitled to a directed verdict.
Plaintiff next argues that the trial court erred by finding that the evidence failed to show that plaintiff's damages would have been avoided or lessened by other or different examinations or treatments.
The dispositive issue in the present case is whether Dr. Branner's actions were the proximate cause of plaintiff's injury, and "proof of proximate cause in a malpractice case requires more than a showing that a different treatment would have improved the patient's chances of recovery." White, 88 N.C. App. at 386, 363 S.E.2d at 206 (citing Gower v. Davidian, 212 N.C. 172, 174, 193 S.E. 28, 29 (1937), and Bridges, 72 N.C. App. at 20-22, 323 S.E.2d at 376). Plaintiff must show that there is a probable connection or causation between the negligence and the loss of his eye, not just a possible connection or causation. See White, 88 N.C. App. at 387, 363 S.E.2d at 206.
Under White, plaintiff cannot prevail by merely showing that following Dr. Katz's recommended courses of action would have improved plaintiff's chances of keeping his eye. Dr. Katz testified that plaintiff's chances of keeping his eye would have increased if Dr. Branner had ordered a CT scan, prescribed a different course of antibiotics, and seen plaintiff immediately following plaintiff'scalls to Dr. Branner's office. However, Dr. Katz also testified that "if everything was done exactly right it's possible to lose that eye[,]" and "[t]he eye may have had a poor outcome with or without appropriate treatment." Plaintiff has not shown that the alleged negligence had a probable connection to the loss of his eye, only that it had a possible connection. The trial court did not err in granting a directed verdict for defendants.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).
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