Robinson v. Duszynski

243 S.E.2d 148 (1978)

Ronald ROBINSON, Administrator of the Estate of Doris V. Robinson v. Dr. Arnold DUSZYNSKI, Sea Level Hospital, Duke University Medical Center and Duke University, Inc.

No. 773SC455.

Court of Appeals of North Carolina.

April 18, 1978.

*150 McNeill, Graham, Coyne & Kirkman by Kenneth M. Kirkman, Morehead City, for plaintiff.

Wheatly, Mason, Wheatly & Davis by Warren J. Davis, Beaufort, and Smith, Anderson, Blount & Mitchell by James D. Blount, Jr., Raleigh, for defendant Dr. Arnold J. Duszynski.

Newsom, Graham, Strayhorn, Hedrick, Murray, Bryson & Kennon by E. C. Bryson, Jr., Durham, for defendant Duke University.

MARTIN, Judge.

The sole question before this Court is whether the trial court erred in granting summary judgment dismissing plaintiff's claim for punitive damages against the respective defendants.

Under the provisions of Rule 56 of the North Carolina Rules of Civil Procedure, the party moving for summary judgment has the burden of clearly establishing that there is no genuine issue as to any material fact and that as a result, he is entitled to a judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). In previewing the pleadings, affidavits and other papers which constitute the record before the court on the motion for summary judgment, the court should carefully scrutinize the materials filed by the moving party, while indulgently regarding those filed by the opposing party. 6 Moore's Federal Practice, § 56.15[8] (2d ed. 1976); accord, Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

Our courts have generally held that punitive damages are recoverable where the tortious conduct which causes the injury is accompanied by an element of aggravation, as when the wrong is done wilfully or under circumstances of rudeness or oppression, or in a manner evincing a wanton and reckless disregard of the plaintiff's rights. Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976). In cases where plaintiff's action was grounded on negligence, our courts have referred to gross negligence as the basis for recovery of punitive damages, using that term in the sense of wanton conduct. Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956). In Hinson, the Court explained that "[c]onduct is wanton when conscious and intentional disregard of and indifference to the rights and safety of others."

In light of these principles, we must first determine whether defendant Dr. Duszynski carried his burden of proof so as to entitle him to summary judgment on the issue of punitive damages.

Pertinent to this issue, plaintiff made allegations summarized as follows:

(1) Dr. Duszynski did wilfully and with gross negligence prescribe certain drugs including Tandearil, Prednisone and Celestone dangerous to the health of the intestate because of their tendency to induce the hemorrhaging of ulcers and retard blood clotting.

*151 (2) Dr. Duszynski was grossly negligent in his supervision of the administration of these drugs to the intestate in that he did not perform sufficient blood analysis prior to prescribing said drugs; he did not perform or cause to be performed any blood analysis during the administration of the drugs despite his awareness of the intestate's vaginal bleeding; he did not warn the intestate or her attending nurses of the dangers and possible effects of the drugs; and he failed to adhere to the warnings and recommendations published by the manufacturers of the drugs.

(3) Dr. Duszynski did wilfully and wantonly, in complete disregard of the intestate's health, fail to respond for some seven hours to the emergency situation created by the intestate's bleeding.

In support of these allegations, and in opposition to defendants' respective motions, plaintiff submitted the affidavits of two doctors who worked closely with Dr. Duszynski on the staff of Sea Level Hospital and a summary of relevant portions of other depositions. These affidavits established that several doctors at Sea Level Hospital had expressed concern over Dr. Duszynski's improper and unusual drug prescriptions and that in the local medical community, Dr. Duszynski had a general reputation of misprescribing medications to his patients.

The evidence contained in the summary of other depositions tended to show that Dr. Duszynski was notified sometime shortly after 1:30 a. m. on 7 February 1976 that the intestate's blood pressure was low and her pulse very weak, that her stool contained fresh blood and that there was a small amount of blood on the bed on her pillow and under her buttocks. She had been already placed in shock position and had been put on nasal oxygen because she appeared "shocky." Ann Styron, a registered nurse, went on duty about 8:00 a. m. on 7 February and became alarmed at the intestate's condition. Shortly thereafter, she called Dr. Duszynski and informed him of the intestate's condition. After attempting, without success, to find the proper blood type for a transfusion, Styron again called Dr. Duszynski around 8:45 a. m. When it finally became apparent that the intestate should be transferred to another hospital, Styron again called Dr. Duszynski. Dr. Duszynski arrived at the intestate's hospital room between 9:00 a. m. and 9:45 a. m. In the opinion of Dr. Rick Moore, an expert in hematology and internal medicine, the drugs given the intestate were improperly administered by Dr. Duszynski, with respect to the manner in which they were combined and the duration of dosage. It is his belief that these drugs, because of their ulceragenic characteristics, in fact caused the intestate's death.

The affidavits and deposition summaries filed by defendant Dr. Duszynski in support of his motion for summary judgment tended mainly to conflict with plaintiff's evidence relative to the apparent seriousness of the intestate's condition and Dr. Duszynski's knowledge thereof during the early morning hours of 7 February 1976. In view of the strong factual showing made by plaintiff's opposing materials, we find the evidence offered by defendant Dr. Duszynski inconsequential on the issue at hand. His factual showing does not reveal that plaintiff is wholly unable to sustain his allegations with proof. See Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976).

Thus, we conclude that defendant Dr. Duszynski has failed to carry his burden of establishing that plaintiff cannot prove entitlement to punitive damages. The trial court erred in granting summary judgment for defendant Dr. Duszynski dismissing plaintiff's claim for punitive damages.

Turning to defendant Duke University's motion for summary judgment and applying the same principles discussed above, we find that the motion was properly allowed. Although plaintiff's complaint alleged that Duke was grossly negligent in failing adequately to investigate Dr. Duszynski's credentials before allowing him to join the staff at Sea Level Hospital, defendant Duke's evidence effectively pierced this allegation so as to reveal the lack of any *152 genuine factual controversy thereon. Duke's evidence showed that it retained a reputable agency, the Corson Group, to locate a qualified physician to practice in Sea Level. That agency's investigation revealed that Dr. Duszynski was of good moral character and a very competent practicing physician in New York State. Duke's evidence further showed that Dr. Stuart Sessoms, Director of Duke Hospital, received an informal complaint regarding Dr. Duszynski's competency and upon contacting the State Board of Medical Examiners, determined that Dr. Duszynski's file was complete and satisfactory. Plaintiff's factual showing merely reiterates the instances in which complaints were made regarding Dr. Duszynski's drug prescription practices. From this preview of the proof, we agree with the trial court that it affirmatively appears that plaintiff cannot prove entitlement to punitive damages against defendant Duke University.

Accordingly, the order granting summary judgment for defendant Dr. Duszynski is reversed. We find no error in the order granting summary judgment for defendant Duke University.

Reversed in part.

Affirmed in part.

MORRIS and ARNOLD, JJ., concur.