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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.
NARINDRA NATH HANDA and his wife, YASHULA HANDA, Plaintiffs, v.
ALBERT R. MUNN, III, M.D. and CAPITAL EYE CENTER, P.A.,
Filed: 3 April 2007
1. Medical Malpractice--informed consent to medical treatment--summary judgment
The trial court erred in a medical negligence case by granting defendants' motion for
summary judgment based on the issue of lack of informed consent, because: (1) there are genuine
issues of material fact in regard to N.C. Gen. Stat. § 90-21.13(a), including whether plaintiff
patient had a general understanding of the usual and most frequent risks and hazards inherent in
the proposed procedure; and (2) there is an issue of material fact regarding how the consent was
2. Witnesses--expert qualifications-_standard of practice--informed consent
The trial court did not err in a medical negligence case by concluding that plaintiffs'
expert witness was qualified to offer opinions regarding the standard of practice for obtaining
proper informed consent, because: (1) plaintiffs' expert was a general ophthalmologist and
defendant Dr. Munn was a general ophthalmologist and an ophthalmologic surgeon; (2)
plaintiffs' expert stated he was familiar with the standard of practice in the southeast, and
although this statement could be interpreted as a regional standard and not a community standard,
Dr. Munn's expert stated that there is no difference in the standard between Raleigh and
Charlotte or any city in between; (3) Dr. Munn's expert stated that the standard is fairly universal
within North Carolina for non-emergency treatment; (4) plaintiff's expert was familiar with
Greensboro having had two cataract surgeries in Greensboro; (5) given the particular facts of this
case and the statement of Dr. Munn's expert, Greensboro is a similar community to Raleigh as
required by N.C. Gen. Stat. § 90-21.13(a), and plaintiffs' expert was qualified to discuss the
standard in Raleigh; and (6) contrary to Dr. Munn's assertion, plaintiffs' expert's professional
experience was sufficient.
Appeal by plaintiffs from an order entered 22 March 2006 by
Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard
in the Court of Appeals 7 February 2007.
Stroud Law Office, PLLC, by W. Randall Stroud, for plaintiff
Yates, McLamb & Weyher, LLP, by John W. Minier and William T.
Kesler, Jr., for defendant appellees.
Plaintiffs appeal from an order granting defendants' motion
for summary judgment. We reverse and remand for further
Narindra Nath Handa (Mr. Handa) and Yashula Handa (Mrs.
Handa), plaintiffs, are husband and wife. Mr. Handa and Mrs.
Handa filed a verified complaint against Albert R. Munn, III, M.D.
(Dr. Munn) and Capital Eye Center, P.A., defendants.
The complaint alleged the following: Beginning in 2000, Mr.
Handa was a patient of Dr. Munn and Capital Eye Center. At that
time, Mr. Handa's vision in his right eye was correctable to 20/20.
Mr. Handa's vision in his left eye was peripheral only. On his own
initiative, Dr. Munn recommended implantation of an artificial
intraocular lens in Mr. Handa's right eye. Dr. Munn advised Mr.
Handa that the surgery was very simple. Prior to the surgery, Mr.
Handa could drive a car, read books, play golf, use a computer, and
perform routine tasks that are a normal part of life for a person
with vision. During the surgery, Dr. Munn discovered that Mr.
Handa's posterior lens capsule had been partially removed in a
prior cataract surgery. Dr. Munn continued with the surgery and
stitched the artificial lens to the back of Mr. Handa's iris.
After the surgery, Mr. Handa did not recover his vision. Dr. Munn
performed a second surgery on Mr. Handa to remove retained cortical
pieces. During this procedure, Dr. Munn removed the artificial
lens and ultimately reinserted it. After the second surgery, Mr.
Handa's vision did not return to the level of its pre-surgicalcondition, therefore, Mr. Handa got an appointment to see Dr. Munn.
Dr. Munn examined Mr. Handa and told him his retina was detached
and arranged an appointment for Mr. Handa to go to Duke Eye Center.
The doctors at Duke Eye Center informed Mr. Handa that he did not
have a detached retina, but there was retinal damage, corneal
damage, and the intraocular pressure in his right eye had dropped
to zero. Mr. Handa began a long course of treatment at Duke Eye
Center, and his vision has never returned to normal. Mr. Handa
underwent a cornea transplant at Duke, and his vision has improved
slightly in the time since the surgery, but he still has no
functional vision in his right eye.
Mr. Handa claimed that because of defendants' negligence, he
is effectively blind and that he cannot drive a car, play golf,
read a book, use a computer, or perform may other ordinary tasks.
He claimed his blindness will continue indefinitely. He also
asserted that, although he signed an informed consent document, he
was physically unable to read it before signing and the action of
the health care provider in obtaining the consent was not in
accordance with the appropriate standards. Mrs. Handa claimed that
she has suffered the burden of significant time and work to care
for her blind husband, and has further suffered the loss of
companionship, affection, and his household services.
On 29 December 2005, Mr. and Mrs. Handa filed an amended
motion for partial summary judgment on the issue of negligence.
Defendants filed a motion for partial summary judgment on all
liability issues other than plaintiffs' allegations regarding thelack of informed consent. Both motions were heard and the trial
court entered an order granting defendants' motion.
On 10 February 2006, defendant filed a motion for summary
judgment on the remaining liability issue of informed consent.
On 22 March 2006, the trial court granted defendants' motion. From
this order, plaintiffs appeal.
 Plaintiffs contend the trial court erred in granting
defendants' motion for summary judgment. Specifically, plaintiffs
assert the evidence raised a genuine issue of material fact that
defendants failed to obtain Mr. Handa's informed consent before
performing elective surgery on Mr. Handa's one good eye. We agree
and reverse and remand.
Granting summary judgment is appropriate only 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) (2005). There is no genuine issue of material fact
where a party demonstrates that the claimant cannot prove the
existence of an essential element of his claim or cannot surmount
an affirmative defense which would bar the claim. Harrison v.
City of Sanford
, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc.
, 361 N.C. 166, ___ S.E.2d ___ (2006). On appeal froma grant of summary judgment, this Court reviews the trial court's
decision de novo
. Falk Integrated Tech., Inc. v. Stack
, 132 N.C.
App. 807, 809, 513 S.E.2d 572, 573-74 (1999). 'The moving party
has the burden of establishing the lack of any triable issue,' and
'[a]ll inferences of fact from the proof offered at the hearing
must be looked at in the light most favorable to the nonmoving
party.' Nelms v. Davis
, 179 N.C. App. 206, 209, 632 S.E.2d 823,
825 (2006) (citation omitted).
N.C. Gen. Stat. § 90-21.13(a) (2005), which governs informed
consent to medical treatment, provides:
(a) No recovery shall be allowed against
any health care provider upon the grounds that
the health care treatment was rendered without
the informed consent of the patient ... where:
(1) The action of the health care provider in
obtaining the consent of the patient ...
was 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; and
(2) A reasonable person, from the information
provided by the health care provider
under the circumstances, would have a
general understanding of the procedures
or treatments and of the usual and most
frequent risks and hazards inherent in
the proposed procedures or treatments
which are recognized and followed by
other health care providers engaged in
the same field of practice in the same or
similar communities; or
(3) A reasonable person, under all the
surrounding circumstances, would have
undergone such treatment or procedure had
he been advised by the health care
provider in accordance with theprovisions of subdivisions (1) and (2) of
To meet this statutory standard, the health
care provider must provide the patient with
sufficient information about the proposed
treatment and its attendant risks to conform
to the customary practice of members of the
same profession with similar training and
experience situated in the same or similar
communities. In addition, the health care
provider must impart enough information to
permit a reasonable person to gain a general
understanding of both the treatment or
procedure and the usual and most frequent
risks and hazards associated with the
treatment. The provider may not be held
liable, however, if a reasonable person, under
the surrounding circumstances, would have
undergone the treatment or procedure had he or
she been advised in accordance with G.S.
90-21.13(a)(1) and (2). G.S. 90-21.13(a)(3).
Foard v. Jarman
, 326 N.C. 24, 26-27, 387 S.E.2d 162, 164-65 (1990)
(citation omitted). Under subsection (b) [of N.C. Gen. Stat. §
90-21.13], a signed consent ... is presumed valid only if it 'meets
the foregoing standards,' clearly those of subsection (a). The
consent form itself is not conclusive. Estrada v. Jaques
, 70 N.C.
App. 627, 645, 321 S.E.2d 240, 251 (1984).
In the instant case, the trial court erred by granting
defendants' motion for summary judgment. For example, we believe
there are genuine issues of material fact in regard to N.C. Gen.
Stat. § 90-21.13(a) which should be decided by the jury. There is
an issue as to whether Mr. Handa had a general understanding of the
usual and most frequent risks and hazards inherent in the proposed
procedure. Mr. Handa testified that Dr. Munn told him that therewas hardly any risk involved in the surgery, and that Dr. Munn
did not describe any of the risks. Although Mr. Handa admits
signing a consent form, he testified that he could not read it
because his vision was blurry due to procedures that took place in
Dr. Munn's office prior to signing the form. Mr. Handa testified
that no one in Dr. Munn's office reviewed the consent form with him
and no one offered to read it to him. He believed he was only
consenting to the surgery by signing the form because he believed
the surgery was risk free. In addition, during Mrs. Handa's
deposition, she was asked to explain the meeting she and Mr. Handa
had with Dr. Munn regarding the surgery. Mrs. Handa testified that
Dr. Munn spent no more than five minutes with her and Mr. Handa,
and that all Dr. Munn said was that the surgery was a very simple
procedure and that Mr. Handa will be very happy with the results,
and he can throw away his reading glasses.
In addition, there is an issue of material fact regarding how
the consent was obtained. N.C. Gen. Stat. § 90-21.13(b) states
that if a consent is evidenced in writing, signed by the patient or
other authorized person, and meets the standards found under
subsection (a) of N.C. Gen. Stat. § 90-21.13, then the consent is
presumed to be valid. N.C. Gen. Stat. § 90-21.13(b). However,
[t]his presumption ... may be subject to rebuttal ... [on] proof
that such consent was obtained by fraud, deception or
misrepresentation of a material fact. N.C. Gen. Stat. § 90-
21.13(b). Accordingly, summary judgment was not proper.  In his brief on appeal, Dr. Munn asserts several reasons
why he believes that plaintiffs' expert witness is not qualified to
offer opinions regarding the standard of practice for obtaining
proper informed consent. Dr. Munn argues (1) that plaintiffs'
expert has no knowledge of Dr. Munn's training and experience, (2)
that plaintiffs' expert has no knowledge of the Raleigh medical
community, and (3) that plaintiffs' expert's professional
experience is deficient. We disagree with Dr. Munn. Plaintiffs'
expert is a general ophthalmologist and he understood Dr. Munn to
be a general ophthalmologist and an ophthalmologic surgeon. In
addition, plaintiffs' expert stated he is familiar with the
standard of practice in the southeast including Virginia, North
Carolina, Georgia and Alabama. Although this could be interpreted
as a regional standard and not a community standard, here Dr.
Munn's expert stated that there is no difference in the standard
between Raleigh and Charlotte or any city in between. Dr. Munn's
expert also stated that the standard is fairly universal within
North Carolina for non-emergency treatment. Here, plaintiff's
expert was familiar with Greensboro having had two cataract
surgeries in Greensboro, one before the incident being litigated,
and one after litigation commenced. Therefore, given the particular
facts of this case and the statement of Dr. Munn's expert, we
believe Greensboro is a similar community to Raleigh as required
by N.C. Gen. Stat. § 90-21.13(a) and plaintiffs' expert was
qualified to discuss the standard in Raleigh. Finally, we disagreewith Dr. Munn's assertion that plaintiffs' expert's professional
experience is deficient.
Accordingly, we agree with plaintiffs.
Reversed and remanded for further proceedings.
Judges BRYANT and LEVINSON concur.
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