Brawley v. Heymann

191 S.E.2d 366 (1972) 16 N.C. App. 125

James O. BRAWLEY
v.
Dr. Robert C. HEYMANN.

No. 7221SC491.

Court of Appeals of North Carolina.

September 20, 1972. Certiorari Denied December 5, 1972.

White & Crumpler by James G. White and Michael J. Lewis, Winston-Salem, for plaintiff appellant.

Hudson, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant appellee.

Certiorari Denied by Supreme Court December 5, 1972.

GRAHAM, Judge.

The party moving for summary judgment has the burden of positively and clearly showing that there is no genuine issue as to any material fact. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400. The court must view the record in the light most favorable to the party opposing the motion, Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1, and any doubt as to whether a triable issue exists must be resolved in his favor. Miller v. Snipes, 12 N.C.App. 342, 183 S.E.2d 270, cert. denied, 279 N.C. 619, 184 S.E.2d 883. Summary judgment will not usually be feasible in a negligence case where the standard of the prudent man must be applied. Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147, cert. denied, 279 N.C. 395, 183 S.E.2d 243.

Upon considering the record in this case in the light most favorable to plaintiff, we are of the opinion, and so hold, that a genuine issue exists as to defendant's actionable negligence. It is true that plaintiff offered no evidence to rebut defendant's affirmative showing that he possesses the degree of professional learning, skill and ability which others similarly situated possess and that he exercised care and diligence in performing the biopsy, which is a simple surgical procedure. Defendant's duty to plaintiff did not end, however, with the successful performance of the surgical procedure. He remained under a duty to give, or see that plaintiff was given, such care as the necessity of the case required. Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339; Nash v. Royster, 189 N.C. 408, 127 S.E. 356.

The evidence would permit a jury to find that defendant unnecessarily left plaintiff unsecured and unattended on a narrow examining table at a time when plaintiff had not fully regained consciousness after suffering neurogenic shock and fainting; that it was reasonable foreseeable that a person in plaintiff's condition was likely to fall from the table unless secured or attended, and that plaintiff did fall and sustain injuries. A jury could reasonably conclude from such findings that defendant failed to give, or see that plaintiff was given, such care as a reasonably prudent physician in the same or similar circumstances would have provided, and that this negligence was a proximate cause of plaintiff's injuries.

Defendant points to the affidavits of the neurosurgeons and calls attention to plaintiff's failure to offer testimony of any physician to rebut the opinions expressed in these affidavits. In doing so, defendant treats this as the type of medical malpractice case which involves matters peculiarly within the domain of expert scientific knowledge. We do not view it as such. Laymen are not so lacking in common knowledge and experience as to be unable to pass upon the questions of reasonable care and proximate cause which arise from the facts here involved. See Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553.

Reversed.

PARKER and VAUGHN, JJ., concur.