Bullard v. North Carolina National Bank , 31 N.C. App. 312 ( 1976 )

229 S.E.2d 245 (1976) 31 N.C. App. 312

Bryon Allen BULLARD, Jr., minor, by his guardian ad litem, Bryon Allen Bullard
v.
NORTH CAROLINA NATIONAL BANK, Executor of the Estate of William D. Wright, Deceased, et al.

No. 7618SC352.

Court of Appeals of North Carolina.

November 3, 1976.

Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., and Charles M. Tate, Greensboro, for plaintiff appellant.

Henson & Donahue by Perry C. Henson and Richard L. Vanore, Greensboro, for defendant appellees.

HEDRICK, Judge.

Plaintiff contends the court erred in granting defendants' motion for a jury trial made some two years and ten months after the time for requesting a jury trial under G.S. 1A-1, Rule 38(b) had expired. The trial court has discretion to grant a jury trial under G.S. 1A-1, Rule 39(b) even though jury trial has been waived pursuant to G.S. 1A-1, Rule 38(b). Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976). Plaintiff has shown no abuse of discretion by the trial judge in granting defendants' motion for a jury trial.

Plaintiff next contends the court erred by allowing into evidence answers to hypothetical questions asked by defendants of their expert witnesses as to whether the treatment administered by Drs. Wright and Carter was in conformity with approved medical practices "in said community and similar communities." Citing Rucker v. Hospital, 285 N.C. 519, 206 S.E.2d 196 (1974), the plaintiff argues that the "similar locality" rule is no longer applicable in situations in which the particular medical problem confronting the physician lends itself to uniform standards of medical treatment without regard to locality. We do not agree. In Rucker the plaintiff alleged that the defendant doctor and the defendant hospital, an accredited hospital in High Point, were negligent in the treatment of his shotgun wound. Plaintiff's expert witness, a physician from Louisiana, testified that he was familiar with standards of practice and procedure in accredited hospitals and that such standards and procedures were essentially the same throughout the United States with regard to gunshot wounds. Even though plaintiff's expert was not familiar with that particular hospital or its staff, the Supreme Court held that the trial court erred in refusing to allow his testimony into evidence. Rucker simply stands for the proposition that all localities are similar with respect to standards of medical care when the particular medical problem lends itself to uniform standards of treatment, and that a physician familiar with those uniform standards is a qualified expert witness. Obviously defendants' witnesses whose testimony is challenged by this assignment of error were familiar with approved medical practices and procedures in the treatment of compound fractures, and the court did not err in allowing them to answer hypothetical questions that included the phrase, "in this community or similar communities."

Citing Ingram v. McCuiston, 261 N.C. 392, 134 S.E.2d 705 (1964), plaintiff contends the court erred in allowing two of defendants' expert witnesses to answer hypothetical questions that included, as facts assumed to be found by the jury, the opinion of another physician. Plaintiff's contention has no merit. The witnesses were asked to assume that, "Dr. Lee was of the impression that there was vascular impairment in the left forearm secondary to fracture with swelling . . . ." Upon the plaintiff's readmission to the hospital on 25 August 1971, Dr. Wright consulted with Dr. Lee, a specialist in vascular surgery, who examined the plaintiff and reported back to Dr. Wright with the above quoted opinion. Thus Dr. Lee's opinion was one of the circumstances that confronted Dr. Wright and was properly considered by defendants' witnesses in stating their opinions as to whether the treatment rendered by Dr. Wright conformed to approved medical practices and procedures.

In response to defendants' proper hypothetical questions as to whether the treatment rendered by Drs. Wright and Carter conformed to approved medical practices and procedures, defendants' expert witnesses characterized the treatment by such phrases as "entirely appropriate" and "good medical care." Plaintiff contends the court erred in allowing the witnesses to use these expressions in characterizing Drs. Wright's and Carter's treatment of the plaintiff because the legal test of medical negligence is not whether the treatment is "entirely appropriate" or "good," but whether the treatment is in conformity with approved medical practices and procedures. Plaintiff did not object to the use of these expressions or move to have them stricken from the record. Therefore, this assignment of error is not based upon a proper exception in the record. N.C. Rules of Appellate Procedure, 10(b), 287 N.C. 669, 699 (App.1975). Nevertheless, considering plaintiff's contention on the merits, we find no prejudicial error in the use of such expressions since when considered in context, the responses were synonymous to "approved medical practices and procedures" and were so understood by the jury.

The depositions of Dr. Wright and Dr. Samuel A. Sue, Jr., a partner of Dr. Wright in the Greensboro Orthopedic Associates, P.A., were offered into evidence at trial by the plaintiff. Portions of these depositions were excluded by the court upon defendants' objections. Assignments of error 2 and 4, based upon numerous exceptions in the record, relate to the portions of the depositions excluded. We find no prejudicial error in the several rulings challenged by these exceptions. The excluded portions of Dr. Wright's deposition related to whether Dr. Wright agreed with statements taken from an unidentified medical treatise. The excluded questions attempted to elicit from Dr. Wright on adverse examination medical standards in the treatment of compound fractures. Assuming arguendo that some of the excluded testimony was proper, we perceive no prejudicial error since there was plenary evidence in the record before the jury establishing the same approved medical practices in the treatment of compound fractures as plaintiff was attempting to establish by the excluded testimony. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968); State v. Forehand, 17 N.C.App. 287, 194 S.E.2d 157 (1973). Moreover practically all of the substance of the excluded testimony of Dr. Sue challenged by these exceptions was testified to by Dr. Sue himself in other portions of his deposition which were not excluded from evidence. In addition the evidence was properly excluded as responses to improper hypothetical questions.

Plaintiff assigns as error several other evidentiary rulings of the court. We have carefully examined each contention and find them to be without merit.

By his sixth assignment of error plaintiff contends the court erred in directing a verdict for the defendant Greensboro Orthopedic Associates, P.A. Since plaintiff alleged no independent wrongful acts on the part of the defendant corporation, its liability could be based only upon the doctrine of respondeat superior. The jury verdict of no liability on the part of the agent doctors also relieved the principal corporation of any liability, and renders moot any question of error by the court in directing a verdict for the defendant corporation.

Finally plaintiff contends the court erred in portions of its instructions to the jury. Some of the exceptions merely raise again questions already discussed. We have carefully examined all exceptions challenging the court's instructions to the jury and find no prejudicial error.

The voluminous record before us depicts a tragic situation which has left the plaintiff with a major permanent physical impairment, but the jury has determined that this tragedy did not result from the actionable negligence of the defendants in a fair trial we find free from prejudicial error.

No error.

MORRIS and ARNOLD, JJ., concur.