Johnson v. Wayne Mem'l Hosp., Inc.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-106
Filed: 5 July 2017
Wayne County, No. 13 CVS 1023
TRACIE JOHNSON, ADMINISTRATOR OF THE ESTATE OF MARIO JOHNSON,
Deceased, Plaintiff,
v.
WAYNE MEMORIAL HOSPITAL, INC., TERRY A. GRANT, M.D., IMMEDIATE
CARE OF GOLDSBORO, PLLC, GOLDSBORO EMERGENCY MEDICAL
SPECIALISTS, INC., DENNIS A. ISENHOWER, P.A., LLOYD SMITH, M.D.,
PHILIP D. MAYO, M.D., and EASTERN MEDICAL ASSOCIATES, P.A., Defendants.
Appeal by plaintiff from order entered 19 February 2016 by Judge Beecher R.
Gray in Wayne County Superior Court. Heard in the Court of Appeals 8 June 2017.
The Melvin Law Firm, P.A., by R. Bailey Melvin, for plaintiff-appellant.
McGuireWoods LLP, by Patrick M. Meacham and Kayla Marshall, for
defendant-appellee Wayne Memorial Hospital, Inc.
ZACHARY, Judge.
Tracie Johnson, Administrator of the Estate of Mario Johnson (plaintiff),
appeals from an order granting directed verdict in favor of Wayne Memorial Hospital,
Inc. (defendant, hereafter “the hospital”) on plaintiff’s claim of medical negligence.
Plaintiff alleged that the hospital’s process for review of X-ray over-read discrepancies
did not meet the standard of care for hospitals in the same or similar communities.
On appeal, plaintiff contends that the court erred by ruling that plaintiff failed to
present competent evidence of the relevant standard of care and by ruling that the
JOHNSON V. WAYNE MEM’L HOSP., INC.
Opinion of the Court
hospital was insulated from liability arising from its allegedly negligent policy for
review of X-ray over-read discrepancies by the subsequent intervening negligence of
the physicians who treated Mario Johnson (Mr. Johnson) prior to his death. After
careful review of plaintiff’s arguments in light of the record on appeal and the
applicable law, we conclude that the trial court did not err by granting directed
verdict for the hospital based on plaintiff’s failure to offer competent testimony as to
the standard of care or the hospital’s breach of that standard. Having affirmed the
court’s order on this basis, we find it unnecessary to reach plaintiff’s other argument.
I. Factual and Procedural History
At around 3:00 a.m. on 11 February 2011, Mr. Johnson came to the emergency
department of the hospital seeking treatment for pain. Mr. Johnson suffered from
sickle cell anemia, an inherited blood disorder that affects red blood cells. At the
emergency room, Mr. Johnson was treated by Dr. Terry Grant, M.D., who
administered pain medication and a saline solution, and ordered various tests for Mr.
Johnson, including blood tests, an EKG, a test for influenza, and a chest X-ray. The
results of these tests showed that Mr. Johnson’s temperature, respiration, blood
pressure, and blood oxygen level were normal. The blood test results indicated that
Mr. Johnson’s white blood cell count was elevated, which can be caused by a variety
of medical conditions; however, other blood tests indicated that Mr. Johnson’s red
blood cells were normal and that he was not showing signs of inflammation. Dr.
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Grant’s interpretation of the X-ray of Mr. Johnson’s chest was that the results were
normal. Dr. Grant concluded that because Mr. Johnson “did not appear overtly ill”
and that because his “vital signs were normal” he did not need to be admitted to the
hospital. Mr. Johnson was discharged from the hospital at around 5:00 a.m., with
instructions to return if his condition worsened. Mr. Johnson returned to the hospital
on 12 February 2011, at which time health care providers in the emergency room
determined that he was suffering from “acute chest syndrome,” a life-threatening
complication of sickle cell anemia. Mr. Johnson was admitted to the intensive care
department of the hospital. Despite further treatment, Mr. Johnson died during the
early morning hours of 13 February 2011.
On 11 February 2013, plaintiff filed suit against Wayne Memorial Hospital,
Inc.; Dr. Terry Grant; Dr. Paul Willman; Dennis Isenhower, P.A.; Dr. Lloyd Smith;
Dr. Philip Mayo; Immediate Care of Goldsboro, PLLC; Goldsboro Emergency Medical
Specialists, Inc.; Wayne Radiologists, P.A.; and Eastern Medical Associates, P.A. Dr.
Smith, Dr. Mayo, Dr. Willman, and Physician’s Assistant Isenhower1 were health
care providers who treated Mr. Johnson on 12 and 13 February 2011. Plaintiff’s
complaint alleged that (1) all of the individual defendants were agents or employees
of the hospital; (2) Dr. Grant was an agent, employee, or owner of Immediate Care of
Goldsboro, PLLC, and of Goldsboro Emergency Medical Specialists, Inc.; (3) Dr.
1 1 The term “PA” refers to a physician’s assistant. A PA, although not licensed to practice
medicine, has extensive training in providing health care to patients.
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Willman was an agent, employee, or owner of Wayne Radiologists, P.A.; (4) PA
Isenhower and Dr. Smith were agents or employees of Immediate Care of Goldsboro,
PLLC, and of Goldsboro Emergency Medical Specialists, Inc.; and (5) Dr. Mayo was
an agent, employee, or owner of Eastern Medical Associates, P.A. Plaintiff sought
damages for medical malpractice, based upon the alleged negligence of the individual
defendants as well as the derivative liability of the hospital and the medical practices
with which plaintiff alleged that the individual defendants were associated. With
respect to the individual defendants, plaintiff alleged that each had failed to provide
appropriate care to Mr. Johnson or to meet the relevant standard of care and that the
individual’s negligence was a proximate cause of Mr. Johnson’s death. Plaintiff
sought damages against the hospital based upon allegations of medical malpractice
arising from negligent treatment of Mr. Johnson, together with allegations that the
hospital was negligent in that its policy for review of discrepancies between an
emergency room physician’s interpretation of an X-ray and that of a radiologist did
not meet the relevant standard of care. The plaintiff later dismissed all claims
against defendants Immediate Care of Goldsboro, PLLC, Dr. Willman, and Wayne
Radiologists, P.A.
Plaintiff’s claims against the remaining defendants were tried before the trial
court and a jury beginning on 25 January 2016. The evidence offered at trial is
discussed below, as relevant to the issues raised on appeal. At the close of plaintiff’s
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evidence, the trial court granted directed verdict in favor of the hospital on plaintiff’s
allegations that the individual defendants were actual or apparent agents of the
hospital, and on plaintiff’s claims of clinical malpractice of the hospital arising from
the individual health care providers’ treatment of Mr. Johnson. The trial court did
not dismiss plaintiff’s negligence claim against the hospital based on the hospital’s
process for review of X-ray over-read discrepancies. At the close of all the evidence,
however, the trial court granted directed verdict in favor of the hospital on this claim
as well. As a result, the only claims submitted to the jury were the allegations of
negligence on the part of the individual defendants.
The jury returned verdicts finding that the individual defendants were not
negligent. The trial court signed an order on 8 February 2016, which was filed on 8
March 2016, dismissing all of plaintiff’s claims with prejudice. On 18 February 2016,
plaintiff filed a motion asking the trial court to reconsider its entry of directed verdict
in favor of the hospital on plaintiff’s claim that the hospital’s process for review of X-
ray over-read discrepancies did not meet the standard of care. The trial court denied
plaintiff’s motion on 8 March 2016. On the same day, plaintiff noted an appeal to this
Court “from the [trial court’s] Order for a Directed Verdict for [the hospital], entered
on February 10, 2016[.]” The directed verdict to which plaintiff’s notice of appeal
refers is the order directing a verdict in favor of the hospital on plaintiff’s claim
arising from the hospital’s policy for review of X-ray over-read discrepancies. Plaintiff
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has not appealed from the trial court’s order granting directed verdict for the hospital
on plaintiff’s claim for liability based on agency, from the verdicts finding the
individual defendants not negligent, or from the judgment entered by the trial court
after the trial. Therefore, the only issue before us on appeal is plaintiff’s challenge to
the order that effectively dismissed the claim that the hospital was negligent in its
X-ray over-read discrepancy review policy.
II. Standard of Review
Plaintiff has appealed from an order granting directed verdict for the hospital.
“The standard of review of directed verdict is whether the evidence, taken in the light
most favorable to the non-moving party, is sufficient as a matter of law to be
submitted to the jury.” Green v. Freeman, 367 N.C. 136, 140, 749 S.E.2d 262, 267
(2013) (internal quotation omitted).
When considering a motion for a directed verdict, a trial
court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of every
reasonable inference arising from the evidence. Any
conflicts and inconsistencies in the evidence must be
resolved in favor of the non-moving party. If there is more
than a scintilla of evidence supporting each element of the
non-moving party’s claim, the motion for a directed verdict
should be denied. . . . Because the trial court’s ruling on a
motion for a directed verdict addressing the sufficiency of
the evidence presents a question of law, it is reviewed de
novo.
Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 322-23, 595 S.E.2d 759, 761
(2004) (citations omitted). “A motion for directed verdict ‘tests the legal sufficiency of
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the evidence to take the case to the jury and support a verdict’ for the nonmovant.”
Scarborough v. Dillard’s, Inc., 363 N.C. 715, 720, 693 S.E.2d 640, 643 (2009) (quoting
Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)).
On appeal, plaintiff challenges certain findings of fact made by the trial court
in its directed verdict order. “However, this Court, in reviewing trial court rulings on
motions for directed verdict and judgment notwithstanding the verdict, has held that
the trial court should not make findings of fact, and if the trial court finds facts, they
are not binding on the appellate court. . . . [T]hese findings are not binding on the
appellate court even if unchallenged by the appellant.” Scarborough, 363 N.C. at 722-
23, 693 S.E.2d at 644 (citation omitted). As a result, our review of the propriety of
the trial court’s directed verdict order is not dependent upon the evidentiary support
for or the legal relevance of the court’s findings of fact.
III. Medical Malpractice Claim Against the Hospital
A. Legal Principles
In reviewing a trial court’s ruling on a motion for directed verdict, “our de novo
inquiry is whether the evidence, taken in a light most favorable to plaintiff, provides
more than a scintilla of evidence to support each element of plaintiff’s claim. If that
burden is satisfied, the motion for directed verdict should be denied[.]” Heller v.
Somdahl, 206 N.C. App. 313, 314, 696 S.E.2d 857, 860 (2010) (citation omitted).
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“Evidence of medical negligence or malpractice adequate to withstand a motion
for directed verdict must establish each of the following elements: ‘(1) the standard of
care [duty owed]; (2) breach of the standard of care; (3) proximate causation; and (4)
damages.’ Failure to make a prima facie evidentiary showing in support of even one
element is fatal.” Clark v. Perry, 114 N.C. App. 297, 304-05, 442 S.E.2d 57, 61 (1994)
(quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570 (1981) (other
citation omitted).
“One of the essential elements of a claim for medical negligence is that the
defendant breached the applicable standard of medical care owed to the plaintiff.”
Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999). “Plaintiffs must
establish the relevant standard of care through expert testimony.” Crocker v.
Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009) (citations omitted). “To meet
their burden of proving the applicable standard of care, plaintiffs must satisfy the
requirements of N.C.G.S. § 90-21.12[.]” Id. At the time that plaintiff’s claim arose, 2
N.C. Gen. Stat. § 90-21.12(a) provided that:
In any action for damages for personal injury or death
arising out of the furnishing or the failure to furnish
professional services in the performance of medical . . .
care, the defendant shall not be liable for the payment of
damages unless the trier of the facts is satisfied by the
greater weight of the evidence that the care of such health
care provider was not in accordance with the standards of
2 N.C. Gen. Stat. § 90-21.2 was amended effective 1 October 2011, and “apply[ing] to causes of
action arising on or after that date.” Because plaintiff’s claim arose in February, 2011, it is governed
by the earlier version of N.C. Gen. Stat. § 90-21.2.
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practice among members of the same health care
profession with similar training and experience situated in
the same or similar communities at the time of the alleged
act giving rise to the cause of action.
B. Discussion
Plaintiff alleges that the hospital was negligent in its process for review by a
radiologist of X-rays that were originally interpreted by an emergency room physician
and subsequent communication of any discrepancy in the radiologist’s interpretation
to emergency room personnel. The dispositive issue is whether plaintiff produced
evidence that the hospital’s policy or practice “was not in accordance with the
standards of practice among members of the same health care profession with similar
training and experience situated in the same or similar communities at the time of
the alleged act giving rise to the cause of action[.]” N.C. Gen. Stat. § 90-21.12(a)
(2011). We conclude that plaintiff failed to offer any evidence of either (1) the
standard of care to which a hospital in the same or similar community should adhere
in its process for the review of X-rays, or (2) the hospital’s breach of the standard of
care.
The hospital policy at issue becomes relevant in the following circumstances.
When a patient, such as Mr. Johnson, is treated in the hospital’s emergency room,
the physician who is treating the patient may order an X-ray. The emergency room
physician reviews, or “reads,” the X-ray as part of the physician’s determination of
the appropriate treatment for the patient. The X-ray is later provided to a radiologist,
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who is a physician specializing in the interpretation and analysis of X-rays and other
scans. The radiologist’s review of the X-ray that was originally interpreted by the
emergency room physician is referred to as an “over-read.” If the radiologist’s
interpretation of the X-ray differs from that of the emergency room physician, this
difference is termed a “discrepancy.” Plaintiff alleges that the hospital’s process for
informing emergency room personnel about a discrepancy observed by the radiologist
in the over-read did not meet the applicable standard of care.
The general structure of the hospital’s policy at the time of Mr. Johnson’s
treatment at the hospital in regard to communication about discrepancies detected
in a radiologist’s over-read is set out in the hospital’s Policy Number ED-019, which
states, in relevant part, that:
Purpose: To provide a system for follow up of diagnostic
tests. . . . To provide guidelines for contacting patients
when additional or alternative treatment is necessary
following an Emergency Department visit.
...
Policy:
A. Follow up of diagnostic tests will be done in the
Emergency Department under the direction of a physician.
B. The Emergency Department Supervisor will review all .
. . radiologist interpretations[.] . . . Discrepancies will be
reported to the Emergency Department physician/PA.
...
E. The Emergency Department physician/PA will review
the corresponding patient’s record to decide whether the
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variance is clinically significant and requires contacting
the patient, or whether a variance exists, but [is] not
clinically relevant to the Emergency Department visit and
requires no further treatment.
Radiology:
1. X-rays ordered by an Emergency Department physician
or PA are initially interpreted by the Emergency
Department physician with final interpretation by a
radiologist.
...
4. The ED supervisor compares the Emergency
Department physician’s preliminary findings . . . with the
final radiologist interpretation. If a discrepancy exists, the
“Emergency Department Radiology Follow-up Form” will
be completed.
Plaintiff’s negligence claim against the hospital is not based upon a challenge
to the general parameters of the hospital’s policy for review of discrepancies. Nor
does plaintiff allege that the hospital failed to implement its policy in this case.
Plaintiff instead contends that that the hospital’s negligence “is not based upon the
policy itself but on the timeframe established by the hospital to carry out the policy.”
Thus, plaintiff does not allege that the hospital was negligent for utilizing a sequence
of successive reviews by the emergency room physician, the radiologist, a nurse, and
then emergency room personnel. Plaintiff’s claim is narrowly focused upon the fact
that, unless the radiologist determined that the emergency room should be contacted
immediately, it typically took about 24 hours after an emergency room physician’s
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initial read of an X-ray before the emergency room staff would be informed of the
radiologist’s differing interpretation.
The schedule or timeline of the hospital’s process for review of X-ray over-read
discrepancies was established through the testimony of Nurse Laura Bruce, the
Clinical Director of the hospital’s emergency department, and Dr. Paul Willman, the
radiologist who reviewed Mr. Johnson’s X-ray. Dr. Willman testified that the
radiologist would contact the emergency department directly if, in the opinion of the
radiologist, the X-ray revealed a life-threatening situation or a medical condition for
which a patient required immediate attention. Nurse Bruce described the hospital’s
process for the further review of X-rays that had been read by an emergency room
physician and subsequently reviewed by a radiologist in situations in which the
radiologist did not find it necessary to contact the emergency room immediately.
Each morning the nurse supervisor reviewed the X-rays that were taken between
midnight the day before until midnight of that day. If there was a discrepancy
between the X-ray interpretation of the emergency department physician and that of
the radiologist, the nurse supervisor would complete a form detailing the situation.
The form would then be reviewed by an emergency room PA or physician, who would
determine what, if anything, should be done in response to the discrepancy. Thus, if
the radiologist did not perceive the need for immediate intervention, it would
typically be at least 24 hours between the emergency room physician’s initial reading
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of an X-ray and the opportunity for a physician to compare that review with the
results of the radiologist’s reading of the X-ray.
In this case, X-rays were taken between 3:00 and 5:00 a.m. on 11 February
2011, and Mr. Johnson was discharged from the emergency room at around 5:30 a.m.
At approximately 8:00 a.m. that morning, Mr. Johnson’s X-ray was reviewed by Dr.
Paul Willman, a radiologist who practiced at the hospital and testified at trial as an
expert in radiology. In February 2011, Dr. Willman’s duties included a review each
morning of the X-rays taken during the previous night. On 11 February 2011, Dr.
Willman reviewed the X-ray of Mr. Johnson’s chest and lungs and observed a “very
subtle” abnormality, which he characterized as a “left lobe infiltrate.” Because Dr.
Willman did not consider this finding to be “dangerous, ominous, or concerning,” he
did not report it directly to the emergency department. The discrepancy was provided
to the nurse supervisor about 14 hours later, just after midnight on 12 February 2011.
She shared the results with the emergency room PA when he arrived for work on the
morning of 12 February 2011. However, Mr. Johnson had already returned to the
emergency room during the morning of 12 February 2011, “before it got to [the] stage
of the process” in which a PA would conduct further review.
Plaintiff contends that the hospital’s process for communication of
discrepancies in review of X-rays failed to meet the proper standard of care in regard
to the “timeframe” within which such discrepancies should be brought to the
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attention of an emergency room physician. Specifically, plaintiff alleges that the
hospital breached the standard of care because, unless the radiologist found a
discrepancy that appeared to require urgent treatment, it could be 24 hours between
the time that an emergency room physician reviewed an X-ray and the time that
emergency room personnel received a copy of the radiologist’s description of the over-
read showing a discrepancy.
In order to meet the standard for recovery enunciated in N.C. Gen. Stat. § 90-
21.12, plaintiff was required to establish that the hospital’s policy did not meet “the
standards of practice among [other hospitals] . . . situated in the same or similar
communities at the time of the alleged act giving rise to the cause of action.”
Accordingly, to establish the standard of care, plaintiff was required to produce
evidence showing whether the hospital met the standard of care for similar hospitals
in regard to the timely communication of information about over-read discrepancies
between the radiologist and the emergency room personnel. This Court held in Tripp
v. Pate, 49 N.C. App. 329, 333, 271 S.E.2d 407, 409-10 (1980), a case bearing some
factual similarity to the present case, that the failure to produce such evidence
supported entry of directed verdict in favor of the hospital:
First, plaintiff argues she presented evidence the hospital
was negligent in not reporting promptly the results of
certain tests ordered by plaintiff’s doctors after her
surgery, thereby causing a delay in the diagnosis of
plaintiff’s condition. In order to withstand a motion for
directed verdict on this issue, however, plaintiff was
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required by N.C. Gen. Stat. § 90-21.12, supra, to offer some
evidence that the care of the defendant hospital was not in
accordance with the standards of practice among other
hospitals in the same or similar communities. Plaintiff
failed to present any evidence of the standard of care for a
hospital in Kinston or similar communities regarding time
necessary to report test results. (Emphasis added).
In the instant case, plaintiff offered the testimony of Dr. Brian Quigley to
establish the standard of care for a hospital’s policy for communication of
discrepancies found in a radiologist’s over-read, and the hospital’s breach of that
standard. On appeal, the parties have offered arguments as to whether Dr. Quigley
was qualified to offer expert testimony on the standard of care for timely
communication between the radiologist and the emergency room staff of an X-ray
over-read discrepancy. Upon review of the transcript, however, we conclude that Dr.
Quigley did not offer testimony establishing either the standard of care or the
hospital’s breach of the standard. As a result, we find it unnecessary to address the
parties’ arguments concerning whether he would have been qualified to give such
testimony.
Dr. Quigley, who testified as an expert in emergency medicine, testified that
he had reviewed information about Goldsboro and about Wayne Memorial Hospital
and specifically its emergency room, and was “familiar with the type of policies and
procedures that hospitals like Wayne Memorial should have in their emergency
room.” When asked by plaintiff’s counsel, Dr. Quigley agreed that a hospital should
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“have a system set up to make sure there’s good communication between radiology
and emergency medicine when there’s this kind of discrepancy between the
[physicians’ interpretation of X-rays].” Dr. Quigley testified as follows when asked by
plaintiff’s counsel to “explain the system, the policy that Wayne Memorial had set up
regarding these over, over -- X-Ray over-reads and the discrepancies.”
[DR. QUIGLEY]: Well, a discrepancy policy means that
there is a discrepancy between . . . an emergency
physician’s reading versus what the radiologist’s is, and
from what I understand, the policy was that they collected
the X-rays from one midnight to the next midnight, and
then they matched up what the radiologist’s reading was
with what the emergency physician’s reading was, and if
there was a discrepancy between the two, then they
brought those up to the emergency department, they’re
pulled by the nurse supervisor, and brought up to the
emergency department, and then the physician assistant
would review these discrepancies, look at the chart, look at
the over-read of the radiologist, and then make a
determination whether clinically they were of concern,
whether or not to call the patient back or have them come
back to the emergency department.
Dr. Quigley’s testimony reflects a general understanding of the hospital’s
policy, with one significant omission: Dr. Quigley did not acknowledge that, in the
event that the radiologist determined that a discrepancy indicated a medical
condition requiring urgent attention, he would contact the emergency room staff
directly.
On direct examination, Dr. Quigley indicated that he was generally “familiar
with the standard of care in February of 2011 in Goldsboro, North Carolina or similar
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communities as it applies to the type of care and treatment that Mario Johnson
received.” However, when he was questioned specifically about the X-ray over-read
discrepancy policies or practices of hospitals in the same or similar communities in
2011, Dr. Quigley conceded that he had no information on the subject:
Q. Do you agree that Wayne Memorial Hospital followed
their discrepancy policy as it was written?
A. As it was written, yes.
...
Q. Yesterday I believe, when you were answering Mr.
Melvin’s questions, you said something to the effect that
the Wayne Memorial discrepancy policy was an archaic
system as it existed in February of 2011. Do you recall that?
A. Yes, sir.
Q. Now, did you make any effort to call around to any
hospitals other than Rex to find out what type of systems
they were using for discrepancies?
A. No, I didn’t make any specific phone calls.
Q. Okay. So you don’t know if this Rex policy is similar to
the type of policies that are being used in other hospitals
throughout Eastern North Carolina?
A. Well, I think every hospital operates a little differently.
I can only speak for the fact that we have 24 hour coverage
currently, and in 2011.
...
Q. Okay? You cannot say, as you sit here today, whether
the policy that Wayne Memorial Hospital had in February
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of 2011 is similar to that of other hospitals similarly
situated in Eastern North Carolina at that same time.
A. No, I would have had to go back in time in 2011 and call
each specific Emergency Department and find out what
their policies were.
Q. Well, you could have done that in advance of your
deposition two years ago. Correct?
A. Yes.
Q. You did not.
A. No, I didn’t make any calls.
Q. And you haven’t made any such calls or made any
inquiry since May 13, 2014. Correct?
A. That’s correct.
Dr. Quigley did not offer any testimony at trial that could establish the
standard of care applicable to the policies or practices of hospitals in similar
communities in 2011 concerning the time frame for communication of an over-read
discrepancy between a radiologist and the emergency room staff. The absence of any
testimony on the standard of care is consistent with Dr. Quigley’s admission that he
had not made any inquiries to determine the practices of other hospitals in 2011. We
conclude that Dr. Quigley failed to offer evidence on the relevant standard of care and
that, because Dr. Quigley was plaintiff’s only witness on this issue, the trial court did
not err by granting directed verdict in favor of the hospital.
In urging us to reach a different conclusion, plaintiff asserts that:
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Dr. Quigley testified that he was familiar with the
standard of care in Goldsboro, N.C. and similar
communities and that Wayne Memorial had violated the
standard of care by having a system that allowed for a 28-
hour delay in informing the emergency department that
the X-ray had been misread. Dr. Quigley testified that in
order to comply with the standard of care Wayne Memorial
needed a system where the radiologist’s interrogation [sic]
of the X-ray needed to be brought to the attention of the
emergency department within 4-5 hours.
Plaintiff’s appellate brief cites pages 15, 55, and 61 of the trial transcript as
the sources for these contentions. Plaintiff accurately cites page 15 for the statement
that Dr. Quigley testified to his familiarity with the standard of care in Goldsboro
and similar communities. However, the testimony presented on the other pages cited
by plaintiff does not support plaintiff’s position. Following is the testimony to which
plaintiff refers:
Q. Now this system that Wayne Memorial has about
getting this information from Radiology to the Emergency
Room, in your opinion, is that system within the standard
of care for a hospital emergency room?
A. No, especially not in 2011.
Q. Why not?
A. Well, if you look at the record it was actually read by the
radiologist . . . [Mr. Johnson] was discharged early morning
on the 11th, and was discharged home at that time at about
5 a.m. The radiologist over-read the film and had a report
in the system electronically at 7:58 a.m. . . . [B]ut then
there’s a delay with this process with the midnight to
midnight, then no one sees the discrepancy on the over-
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read for 24, 28 hours. And this makes a difference
clinically.
...
Q. . . . Now, to have a system or a policy that meets the
standard of care, in your opinion, how long can the delay
be? We've got about a 28 to 30 hour in Mario’s case. If
they’re going to have a system that meets the standard of
care, how long should the delay be?
A. I would say that, in 2011, with the electronic dictations
into the chart, maybe 4 or 5 hours.
Q. All right. And that would -- I’m sorry.
A. Roughly. Roughly.
Q. Okay.
A. That’s a guess.
Q. And that would mean, in Mario’s case, that should have
come to somebody’s attention by what time?
A. Well, if you -- if you go by this system, if they read at
7:58 and someone’s ongoingly pulling up these
discrepancies, it should have occurred earlier on February
11.
Q. All right.
A. Sometime maybe early morning, late morning, early
afternoon.
We conclude for several reasons that Dr. Quigley’s testimony did not constitute
competent evidence of the relevant standard of care or of the hospital’s breach of that
standard. First, Dr. Quigley offered no testimony or other evidence as to the policies
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JOHNSON V. WAYNE MEM’L HOSP., INC.
Opinion of the Court
in effect at other hospitals in similar communities in 2011. In fact, as discussed
above, Dr. Quigley admitted that he had never tried to obtain information on the
subject. Dr. Quigley was asked how long the delay “should be,” and not how long the
delay actually was in comparable hospitals. As a result, the jury would have had no
way to compare the time frame of this hospital’s policy to that of other hospitals.
Secondly, when asked how long the delay should be, Dr. Quigley candidly admitted
that he could only guess. He estimated that the emergency room should be made
aware of the radiologist’s over-read within “roughly, roughly” “maybe 4-5 hours,”
which he conceded was “a guess.” Taking into consideration Dr. Quigley’s admitted
lack of information about the pertinent standard of care, the absence of testimony
establishing the standard, and Dr. Quigley’s characterization of an appropriate time
frame as a rough guess, we conclude that Dr. Quigley did not offer competent evidence
on the standard of care or the hospital’s breach of that standard.
IV. Conclusion
Having reached this conclusion, we find it unnecessary to reach the parties’
other arguments. We conclude that the trial court did not err by granting directed
verdict in favor of the hospital and that its order should be
AFFIRMED.
Judges DILLON concurs.
Judge BERGER, JR. concurs in result only.
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