Beaver v. Hancock , 72 N.C. App. 306 ( 1985 )

324 S.E.2d 294 (1985)

Grady B. BEAVER and wife, Ruby Marlowe Beaver
v.
Richard P. HANCOCK, M.D.

No. 8422SC308.

Court of Appeals of North Carolina.

January 15, 1985.

Harris & Pressly by J. Pressly Mattox, Statesville, for plaintiffs.

Kennedy, Covington, Lobdell & Hickman by Charles V. Tompkins, Jr. and Kiran H. Mehta, Charlotte, for defendant.

WELLS, Judge.

Plaintiff failed to place any exceptions or assignments of error in the record. The appeal nonetheless constitutes an exception to the judgment, and presents the question of whether the judgment is supported by the conclusions of law. Rule 10(a) of the Rules of Appellate Procedure. A motion for summary judgment requires the court to rule on the legal sufficiency of the pleadings and evidence to raise issues of fact. See Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). The court finds issues of fact; it does not determine them. See Hotel Corp. v. Taylor, 301 N.C. 200, 271 S.E.2d 54 (1980); 73 Am. Jur.2d Summary Judgment § 1 (1974). In addition, summary judgment is a drastic measure, to be used with caution, particularly in negligence cases. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979). Accordingly, we hold that under Rule 10(a) plaintiff's appeal adequately presents the propriety of the grant of summary judgment.

On a motion for summary judgment, the evidence must be considered in the light most favorable to the non-moving party, with all favorable inferences therefrom. Rose v. Guilford Co., 60 N.C.App. 170, 298 S.E.2d 200 (1982). The moving party's papers are scrutinized carefully, while the non-movant's are treated indulgently. Vassey v. Burch, supra. Under these standards, the movant must forecast evidence which would entitle it to judgment as a matter of law. The opposing party has no duty to come forward until the movant has met its burden; if internal inconsistencies in the movant's evidence reveal a genuine issue of material fact, summary judgment should be denied. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). Once the movant has presented a sufficient showing, however, the non-movant cannot rest on conclusory allegations. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). Rather, it must come forward with specific facts showing a genuine issue for trial. Id.

Reluctant as we should be to allow the drastic remedy of summary judgment in negligence cases, see Williams v. Power & Light Co., supra, especially medical malpractice cases, Vassey v. Burch, supra; Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978), we nevertheless conclude that under the unusual circumstances presented to the trial court in this case, summary judgment for defendant was appropriately granted. One of the recognized purposes of summary judgment is to allow the moving party, by discovery or affidavits, to "pierce the pleadings," to show that the opposing party cannot produce an essential element of his claim. Lowe v. Bradford, supra.

Plaintiff's complaint asserts three principal aspects of defendant's negligence: (1) the use of wire sutures to close plaintiff's incision; (2) leaving a loose piece of wire suture in plaintiff's body; and (3) the failure to discover, diagnose, or remove loose sutures from plaintiff's body. It is clear that in order to establish any of these elements of negligence, plaintiff would have to rely in part on the testimony of other physicians who either diagnosed or treated plaintiff subsequent to his gall bladder operation.

Plaintiff's burden was to show that defendant was negligent in his care of plaintiff and that such negligence was the proximate cause of plaintiff's injuries and damage. Ballenger v. Crowell, supra. The defendant physician's negligence must be established by showing the standard of care owed to plaintiff and that defendant violated that standard of care. The standard owed is that standard which is in accordance with accepted standards of care in the community in which plaintiff was treated, or in similar communities. N.C. Gen.Stat. § 90-21.12 (1981), Ballenger v. Crowell, supra. Usually, but not in all cases, the accepted standard of care and its violation must be established by expert testimony. Powell v. Shull, 58 N.C.App. 68, 293 S.E.2d 259, cert. denied, 306 N.C. 743, 295 S.E.2d 479 (1982).

Based on the materials before the trial court at the summary judgment level, we cannot place this case in any exception to the general rule. Defendant having shown in his forecast of evidence that he did not violate the standard of care he owed plaintiff, it was then incumbent upon plaintiff to show by the affidavits of those other physicians who had treated plaintiff, or at least one of them, that defendant had violated the standard of care he owed plaintiff. In the process of discovery plaintiff furnished the names of fifteen medical people (radiologist, pathologist, physicians, and surgeons) who either diagnosed or treated plaintiff's problems following his gall bladder surgery, yet plaintiff not only did not furnish the affidavits of any of these persons, but clearly indicated he did not intend to rely on their testimony at trial. Given the nature of the medical problems set out in plaintiff's complaint, plaintiff's mere allegations as to his symptoms, pain, suffering, and treatment by others and conclusory allegations as to defendant's negligence was not sufficient to meet his burden on defendant's motion.

In approving the granting of summary judgment for defendant in this case, we deem it appropriate to emphasize the importance of paragraph (f) of Rule 56 of the Rules of Civil Procedure in this case and all similar cases. The Rule provides:

(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Before allowing summary judgment for a defendant in a medical malpractice case, the trial court should be satisfied that the plaintiff has had ample opportunity to obtain affidavits required to rebut a defendant's affidavits on the issues of standard of care and violation of the standard, it being clear that defending health care providers have an advantageous position with respect to developing affidavits in support of their position. In this case, plaintiff's own representation to the trial court made it clear that plaintiff was not seeking the aid of the Rule 56(f) provisions.

For the reasons stated, the judgment below is

Affirmed.

ARNOLD and BECTON, JJ., concur.