Tice v. Hall , 63 N.C. App. 27 ( 1983 )

Judge BECTON

dissenting.

While I have not hesitated to hold doctors to the appropriate standard of care when that standard has been clearly established, see Howard v. Piver, 53 N.C. App. 46, 279 S.E. 2d 876 (1981); Powell v. Skull, 58 N.C. App. 68, 293 S.E. 2d 259, pet. for disc. rev. denied, 306 N.C. 743, 295 S.E. 2d 479 (1981); and Hyder v. Weilbaecher, 54 N.C. App. 287, 283 S.E. 2d 426, disc. rev. denied, 304 N.C. 727, 288 S.E. 2d 804 (1981), I am not persuaded that the evidence in this case shows that Dr. Hall violated the standard of practice among surgeons with similar training and experience in similar communities when he relied on the sponge count given him by the nurses. Dr. Hall clearly violated Dr. Newman’s standard of practice of making “a systematic search before closing the incision in an operation,” but Dr. Newman’s standard is not the applicable standard.

Because the evidence shows that the standard of practice is for the surgeon to rely on the sponge counts provided by operating room nurses and that Dr. Hall did that in the case sub judice, I believe the trial court correctly granted the defendant’s motion for a directed verdict.