Turner v. Duke University ( 1988 )

Judge Phillips

concurring in part and dissenting in part.

Though I do not believe that the trial judge’s failure to impose sanctions against Duke University and strike the last minute depositions of Drs. Scheerer and Havard constituted reversible error, the University’s patent evasiveness in regard to those witnesses is viewed by the majority with too tolerant an eye in my opinion. In this State discovery is not just a search for information relating to a case with it being immaterial where the information is obtained; litigants have the right to ascertain without quibble or evasion what their adversaries know about the facts in litigation, and that the inquirer may already know the same thing or can find out elsewhere is irrelevant. Thus, plaintiff had the right to have the University state under oath the names and addresses of the persons that it knew had treated the decedent, and its purported answer, “See medical records,” was no answer at all and can only be characterized as evasive; and the evasiveness was rendered frivolous by the fact that the hospital’s record is only a few pages long and most of the signatures are illegible.

On the other hand, the majority’s view of plaintiffs evidence is too narrow. Dr. Pace’s testimony that Dr. Friedman’s failure to examine his patient during the afternoon when her condition was obviously deteriorating violated the standard of care and proximately caused her death raised a question of fact for the jury; a question that was not eliminated by the contradictory testimony referred to in the opinion, since weighing contradictions in evidence is the jury’s function, not ours.

Furthermore, plaintiffs evidence also raised a question of fact as to whether Mrs. Turner’s death was proximately caused by Dr. Friedman’s negligent failure to diagnose and treat her dangerous state of constipation, as alleged in Paragraph 47(b) of the complaint. Though Dr. Friedman admitted that he was aware that she had been taking medicines that caused constipation and said he would have been surprised if she had not been constipated, the evidence indicates that neither he nor any of his many assistants did anything whatever to ascertain the extent,of her constipation before prescribing the enemas which literally blew out the wall of her colon. For the record that defendants made of the inquiries and examinations that were made of this patient contains no indication whatever that she or anyone else was asked when her last bowel movement was, or that any physician or anyone else felt her abdomen which then contained, as surgery soon revealed, “bucketsful of stool” that had been accumulating in her colon for a long time. This evidence, in my opinion, along with evidence that less than two days before her death decedent walked into the hospital seeking treatment and during the time she was there her husband tried on several occasions to get somebody to attend her for the intense abdominal pain she was suffering, is sufficient, even in the absence of expert testimony, to permit a jury to infer that the medical care Mrs. Turner received did not meet even the most rudimentary standards, much less those adhered to by nationally ranked medical centers, and that her death resulted therefrom. But there was expert testimony on this issue. In substance, Dr. Pace testified that: The applicable standard required a physician treating a patient known to be constipated to at least ask the patient when the last bowel movement was and to determine by carefully feeling the abdomen whether the colon was full of stool before prescribing the enemas; that such an examination would probably have disclosed Mrs. Turner’s condition since she was a frail woman and her abdomen then contained an enormous quantity of stool; and that neither of these steps was taken was a deviation from that standard.

Thus, my vote is not to disturb the judgment in favor of Duke University, but to grant the plaintiff a new trial against the other defendants.