Rucker v. High Point Memorial Hospital, Inc. , 20 N.C. App. 650 ( 1974 )

202 S.E.2d 610 (1974) 20 N.C. App. 650

Burt E. RUCKER
v.
HIGH POINT MEMORIAL HOSPITAL, INC., and Horace Henry Stovall, M.D.

No. 7418SC20.

Court of Appeals of North Carolina.

February 20, 1974. Certiorari Allowed April 2, 1974.

Schoch, Schoch, Schoch & Schoch by Arch K. Schoch, Jr., High Point, for plaintiff appellant.

Henson, Donahue & Elrod by Perry C. Henson, Greensboro, for defendant Stovall appellee.

Sapp & Sapp by Armistead W. Sapp, Jr., Greensboro, for defendant High Point Memorial Hospital, Inc., appellee.

Certiorari Allowed by Supreme Court April 2, 1974.

MORRIS, Judge.

Plaintiff argues, by his assignment of error No. 2, that the trial court committed reversible error in excluding the testimony of Dr. Levy.

There is certainly no question but that Dr. Levy is eminently qualified. He is certified by the American Board of Surgery, a Fellow of the American College of Surgeons, the International College of Surgeons, and the American College of Gastroenterology. He was visiting surgeon at Charity Hospital in New Orleans, and consultant at Alexandria, Louisiana, Veterans' Memorial Hospital, Charity Hospital in Alexandria, Louisiana, Lallie Kemp Charity Hospital in Independence, Louisiana, and Keesler Air Force Base Hospital in Biloxi, Mississippi. At the time of the trial he practiced at Touro Infirmary, East Jefferson General Hospital, and Sara Mayo Hospital, all in New Orleans. He had written 12 papers on various aspects of surgery which had appeared in the American Journal of Surgery, Southern Medical Association Journal, Journal of Louisiana State Medical Association, and Journal of Surgery. He was an Associate Professor of Surgery on a part-time basis at Tulane University Medical School and since 1965 had continued his private practice in New Orleans and his association with the University.

Dr. Levy testified, on the qualifying examination of defendants, that he had no knowledge with respect to High Point; that he did not know whether Memorial Hospital was accredited; that he had never been there; did not know how many Board certified surgeons practiced in High Point; did not know how many surgeons, doctors, or residents practiced in High Point; knew nothing of the nature and extent of the library in High Point Memorial Hospital or the nature and extent of a medical library available to surgeons practicing in High Point within a 25-mile radius; that he did not know whether High Point Memorial Hospital was approved for medical care.

During his testimony out of the presence of the jury, Dr. Levy testified that he came to High Point to testify as to his observations from some facts concerning one patient and was not prepared to discuss standards of medical practice until the night before he took the stand. He testified: "To the best of my knowledge, the treatment of gunshot wounds of the extremities is standard throughout the United States, among qualified surgeons", and "The standards for the treatment of gunshot wounds are dictated not by local custom, but by national publications and national organizations, and by training in medical schools and residency programs, which are standardized by various agencies throughout the Country." Further, "I do not know of any variations of the standards of the management of gunshot wounds of the lower extremities from any one community to another, not within the United States. To the best of my knowledge, the standards of care are the same from one community to the other."

Dr. Levy unequivocally testified that when plaintiff first came to the emergency room he should have been referred to a surgeon with admitting privileges and that if a physician without admitting privileges undertook to care for the wound as described, "if that circumstance existed, then I would say that he was not living up to the standards demanded by the medical profession in this Country. I am saying if the medical staff of that hospital said that is all right, then they were not living up to the standards all over this Country. Just to clarify that . . . I don't think the medical staff of a hospital sets the medical standards in a community. It is set by a much greater area than one tiny locality. In a community of this size, with qualified people in it, qualified surgeons in it, if the doctors who serve the community don't live up to the standards I have described, then they shouldn't be practicing medicine." He further testified: "I am saying a standard for a metropolitan community of this sort; and I again reiterate in a community of this size, this sort, in a hospital with a qualified medical staff, they should live up to the standards dictated around the Country; and if everyone doesn't live up to those standards, then everyone in that group is guilty."

It is obvious that Dr. Levy has set very high standards for himself and would like for all practicing physicians to set high standards for themselves. We cannot disagree with this desire. Practically, however, this is a theoretical optimum impossible of achievement.

In Dickens v. Everhart, 284 N.C. 95, 100, 199 S.E.2d 440 (1973), Justice Lake, quoting from Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762, and citing other cases to the same effect, set out the basis of liability of a physician or surgeon for negligence in the care of his patients as follows:

"A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case, and (3) he must use his best judgment in the treatment and care of his patient. [Citations omitted.] If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.

Justice Lake, writing for a unanimous Court, continued:

"In Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393, this Court rejected the ``locality rule' to the effect that, in order to recover on the ground of failure to possess or use the requisite professional skill and ability, the injured patient must prove that the defendant failed to possess or use the skill and ability customary in the community in which the service was rendered. We there reaffirmed the rule that the physician or surgeon must possess the degree of learning, skill and ability which other similarly situated ordinarily possess. Thus, the general practitioner is not liable by reason of his failure to possess the degree of knowledge and skill ordinarily possessed by a specialist in the field of his speciality. Similarly, the character of the community in which the defendant practices is a circumstance to be considered in determining the degree of skill and ability to be required of him. Prosser on Torts, 3rd ed., Negligence, p. 166. He is, however, held to the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice. Thus, in Wiggins v. Piver, we held that an expert witness, otherwise qualified, may state his opinion as to whether the treatment and care given by the defendant to the particular patient came up to the standard prevailing in similar communities, with which the witness is familiar, even though the witness be not actually acquainted with actual medical practices in the particular community in which the service was rendered at the time it was performed."

It is obvious that Dr. Levy testified with respect to national standards. Plaintiff asked a hypothetical question in the absence of the jury and asked Dr. Levy whether he had an opinion satisfactory to himself and to a reasonable medical certainty as to whether the "diagnosis and treatment afforded by Dr. Stovall to the plaintiff were in conformity with the approved practice and principles of the medical profession in this community or similar communities". Dr. Levy answered that he had an opinion which was "That the diagnosis and treatment as afforded by Dr. Stovall were not in conformity with the usual practices of this community or similar communities."

We agree with the trial court that Dr. Levy had not testified to any knowledge which would qualify him to compare the treatment and diagnosis afforded by defendant Stovall to the community of High Point or any similar community, nor had he qualified himself to testify with respect to the standard of care in High Point or any similar community.

We think that what was said in Lockhart v. MacLean, 77 Nev. 210, 361 P.2d 670 (1961), is applicable. There an operation took place in Reno, Nevada. Infection of the bone developed. A malpractice suit was brought and, in support of motion for summary judgment, plaintiff sought to use the deposition of a surgeon from Oakland, California. The trial court refused to consider it; and on appeal, the Court said:

"We are in accord with the views expressed by the trial court that, in the instant case, there was no sufficient showing in Dr. Tepper's affidavit to qualify him to give an opinion admissible in evidence that the diagnosis, preoperative, operative and postoperative procedures taken and followed by defendants were not in accordance with the standard of conduct of surgeons and orthopedic surgeons practicing in Reno, Nevada. Dr. Tepper's affidavit showed that such procedures on the part of respondents were not in accordance with those standards throughout the United States in the particulars mentioned in his affidavit. His affidavit shows that, with the exception of training had by him in Denver, Colorado in 1943 and in Kansas City the following year, the affiant had received all of his other education and training and had conducted his practice solely within the state of California. Under the argument advanced by appellants, based upon the background referred to, Dr. Tepper would be competent to testify concerning the standards of surgeons in communities of all sizes, urban or rural, accessible or isolated, without regard to the relative medical facilities of the same or how widely separated from each other, so long as within the United States. Neither practice nor presence at any time in the community would be a prerequisite to the competency of the witness.

Under the present facts we consider that the liberalizing of the rule pertaining to competency, based upon knowledge of standards of surgeons and orthopedic surgeons, to the extent of making the locality the entire geographic United States would, in effect, constitute such an extensive and unjustifiable relaxation of the locality rule as to amount to an abandonment of the same. Even though under certain circumstances and in the furtherance of justice the trial court might, in the exercise of its discretion, relax the locality rule so as to permit competency of an expert witness to be established by a showing of knowledge of standards in a similar rather than the same locality, this would in no way constitute a recognition of the principle here contended for by the appellant." 361 P. 2d, at 673-674.

In oral argument, plaintiff advanced the theory that Dr. Levy was competent to express his opinion as he did in the absence of the jury because he and defendant Stovall were similarly situated. This, he argued meant medical education, preparation for specialty, size and type of medical school attended, size and type of hospitals with which each was associated, etc. Even if we were to agree with plaintiff's interpretation of the meaning of the phrase "similarly situated" as used in Dickens v. Everhart, supra, and we do not, it is obvious from the record that Dr. Levy and Dr. Stovall are not similarly situated. We do not deem it necessary to list the dissimilarities; suffice it to say, they are numerous. The trial court properly refused to allow Dr. Levy's testimony to be heard by the jury.

Plaintiff next assigns as error the court's refusal to admit into evidence certain exhibits. The court excluded plaintiff's exhibit 4 as to defendant Hospital, but admitted it as to defendant Stovall. This was the emergency room record. For reasons discussed hereinafter, the court should have admitted the exhibit as to defendant Hospital. The court also admitted one page of exhibit No. 7 as to defendant Stovall but not as to defendant Hospital. This page was the laboratory reports. For the same reasons, the court erred in refusing to admit this exhibit as to defendant Hospital. The remainder of the exhibits tendered and refused were in patient records at High Point Hospital. Plaintiff introduced the records as primary substantive evidence for use in framing a proper hypothetical question. He relies on Sims v. Insurance Co., 257 N.C. 32, 125 S.E.2d 326 (1962). There the records were used for impeachment purposes. Plaintiff here did not, technically, adhere to the rules laid down in Sims for laying the foundation for the introduction of hospital records. We think the court properly excluded the exhibits. We note, however, that plaintiff was able to frame a proper and adequate hypothetical question without the use of the exhibits. That his hypothetical question was proper and adequate is conceded by defendant Stovall in his brief.

Plaintiff's assignment of error No. 4 is addressed to the court's refusal to allow plaintiff to call Dr. Thomas Wood as a witness. We think plaintiff's position is well taken. We do not know what Dr. Wood's testimony would have been because the court refused to allow plaintiff to put it in the record. We cannot know, therefore, whether Dr. Wood's evidence would have been sufficient to carry plaintiff's case to the jury. Although he was not listed as a witness for plaintiff on the pretrial order, defendants' argument that they were not prepared to cross-examine him on just overnight notice is fallacious in view of their expert cross-examination of other medical witnesses for plaintiff. Their argument that the jury had not been examined as to this witness also fails in view of plaintiff's offer at trial to agree for defendants to examine the jury with respect to this witness before he testified and further, if it appeared to defendants that one or more should be excused, the court could declare a mistrial. Dr. Wood was a partner of a witness who had testified for plaintiff and about whom the jury had been questioned. The witness's evidence could not have been merely cumulative. Plaintiff informed the court that the witness would testify with respect to standards of care in High Point. No evidence as to this had been elicited at that time as the court had properly refused to allow Dr. Levy to testify as to standards and defendant Stovall's violation of them. Plaintiff was taken by surprise when it appeared that the testimony of his expert witness would not be submitted to the jury. We are of the opinion that, under the circumstances of this case, the trial court should have exercised his discretion in favor of allowing plaintiff to bring in another witness to testify conditioned upon defendants' examining the jury with respect to the witness and plaintiff's submitting to a mistrial if prejudice to defendants appeared.

One further question must be discussed. The court in its order directed a verdict for defendant Hospital on the basis that plaintiff had failed to show that defendant Stovall was the agent, servant, or employee of defendant Hospital, but, on the contrary, all the evidence showed that defendant Stovall was an independent contractor. We disagree.

Plaintiff's exhibit 11, introduced into evidence without objection by defendants (with the exception of objection to an insurance provision), is a contract between defendant Hospital and defendant Stovall. Under the contract, defendant Stovall is employed at a guaranteed salary of $24,000 per year as a member of a four-man team to work in the emergency room. The 12-hour shifts seven days per week were to be worked out by Stovall and the other three. The hospital was to collect all fees; and, in the event of collection of fees exceeding the guaranteed salaries, any excess would be divided among the emergency room doctors. They were to see all patients coming to the emergency room. When services of a specialist were required, the emergency room doctor was to call a specialist on backup call. The contract specifically provided: "All services of the Emergency Department Physicians are to be performed in a manner as to further the best interest of the hospital including the best possible care and treatment of the patient with special emphasis on the maintenance of good public relations." The contract further provided for one month's vacation for each year of service with the hospital responsible for securing temporary replacement. Further, each physician was allowed three days per year to attend scientific meetings and 12 days per year sick leave which could be cumulative for a period of three years or a total of 36 days. The hospital was to arrange for replacement in event of illness but reserved the right to compensate the group for doubling up. The physicians were allowed one year to phase out their private practice, and they agreed that they would not accept other work in their off duty hours which would amount to going into private practice in competition with the members of the active medical staff. It appears to us that this clearly creates an employment relationship and not an independent contractor. We, therefore, hold that the court erred in directing a verdict against plaintiff in favor of defendant Hospital.

For the reasons stated, there must be a new trial.

BROCK, C. J., and CARSON, J., concur.