Haney v. Alexander

323 S.E.2d 430 (1984)

Herschel H. HANEY, Jr., Administrator of the Estate of Herschel H. Haney, Sr. v. Dr. J.B. ALEXANDER, Dr. H.N. Lee and Southeastern General Hospital, Inc.

No. 8416SC406.

Court of Appeals of North Carolina.

December 18, 1984.

*432 McLeod & Senter, P.A. by John Michael Winesette, Fayetteville, for plaintiff-appellant.

Harris, Cheshire, Leager & Southern by W.C. Harris, Jr., and Claire L. Moritz, Raleigh, for defendant-appellee Southeastern General Hosp., Inc.

HEDRICK, Judge.

Plaintiff's assignment of error raises the single question of whether the trial court properly directed a verdict for defendant under G.S. 1A-1, Rule 50(a). A directed verdict for defendant is proper only if plaintiff's evidence is insufficient as a matter of law to support his claim. In ruling on defendant's motion for directed verdict, the trial court must consider the evidence in the light most favorable to plaintiff and give plaintiff the benefit of every reasonable inference. Willoughby v. Wilkins, 65 N.C.App. 626, 631, 310 S.E.2d 90, 94 (1983), disc. rev. denied, 310 N.C. 631, 315 S.E.2d 697, 698 (1984). "[T]he court must consider even `incompetent' evidence in ruling on a motion for a directed verdict." Hart v. Warren, 46 N.C.App. 672, 678, 266 S.E.2d 53, 58, disc. rev. denied, 301 N.C. 89 (1980) (citing Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548 (1968)). "The reason for this rule is that the admission of such [incompetent] evidence may have caused the plaintiff to omit competent evidence of the same import." Huff v. Thornton, 23 N.C.App. 388, 390, 209 S.E.2d 401, 403 (1974), affirmed, 287 N.C. 1, 213 S.E.2d 198 (1975).

Plaintiff in the present case qualified two expert witnesses, Drs. LeBeau and Rein, with regard to the standard of basic nursing care defendant owed to plaintiff's father under the medical malpractice statute, G.S. 90-21.12. These expert witnesses testified that plaintiff's father died due to defendant's failure to meet the applicable standard of health care. This testimony is sufficient to create a jury issue as to whether defendant failed to provide plaintiff's father with health care in accordance with the standards of practice among nurses with similar training and experience situated in the same or similar communities at the time of the act giving rise to the alleged cause of action, and as to whether defendant's alleged failure to provide appropriate health care proximately caused the death of plaintiff's father. Thus the judgment directing a verdict for defendant will be reversed and the cause remanded for a new trial.

*433 By its two cross-assignments of error defendant contends the trial court erred in allowing Drs. LeBeau and Rein to give their opinions as to whether defendant's nurses violated the relevant standard of care and thereby proximately caused the death of plaintiff's father. Rule 10(d), North Carolina Rules of Appellate Procedure, provides that an appellee may cross-assign as error "any action or omission of the trial court ... which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken." Since, as pointed out above, there must be a new trial, it is not necessary for us to discuss these cross-assignments of error, but lest the parties misconstrue our failure to do so as a holding that the trial court erred in allowing the testimony in question, we hold the trial court did not err for the reasons that follow.

Defendant argues that plaintiff's expert witnesses, one of whom was an internist and cardiologist and the other of whom was a family practitioner, may have been medical experts in their respective fields but were not qualified as experts in the nursing standard of care applicable to defendant under G.S. 90-21.12, which provides:

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, dental, or other health 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 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.

Nurses fall within the definition of "health care provider." G.S. 90-21.11. In order for plaintiff's medical witnesses to qualify as experts with regard to the nursing standard of care applicable to defendant, plaintiff was required under G.S. 90-21.12 to lay a foundation showing the witnesses were familiar with the standard of practice (1) among nurses with similar training and experience, (2) who were situated in the same or similar communities, (3) at the time plaintiff's father died. The trial court expressly qualified plaintiff's medical witnesses as experts, and implicitly qualified them as experts on the nursing standard of care applicable to this case by letting them testify on that subject over objection. "The competency of a witness to testify as an expert in the particular matter at issue is addressed primarily to the sound discretion of the trial court, and its determination is not ordinarily disturbed by the reviewing court." Food Town Stores v. City of Salisbury, 300 N.C. 21, 37, 265 S.E.2d 123, 133 (1980) (citation omitted). We find that the trial court acted within its discretion in allowing plaintiff's medical witnesses to testify on the nursing standard of care at issue in this case for the reasons set forth below.

Plaintiff established the elements of his foundation for expert testimony when his first medical witness, Dr. LeBeau, testified that he was familiar with the standard of care of registered nurses in accredited hospitals in communities similar to Lumberton, where defendant is situated, during July of 1977. Dr. LeBeau gained familiarity with the duties and functions of registered nurses in day-to-day dealings with them. He taught nursing students in a clinical setting. He stated that the nurses who treated plaintiff's father while in the employ of defendant had comparable training and experience to the nurses with whom he regularly dealt because they had the same degree qualifications. More specifically, Dr. LeBeau testified that he was familiar with the basic duty of all nurses in accredited hospitals across the nation to take vital signs when a patient exhibits unusual or new symptoms. He related his familiarity with this particular standard of care to the particular facts of this case; namely, the failure of defendant's nurses to completely *434 monitor vital signs such as blood pressure when the condition of plaintiff's father worsened.

Similarly, plaintiff's other medical witness, Dr. Rein, testified that he had taught and worked with nurses. He too stated that there was no variation in the nursing standard of care for all nurses in accredited hospitals across the country in July of 1977 with respect to the basic duties at issue in this case. Like Dr. LeBeau, he satisfied the "similar training and experience" part of G.S. 90-21.12 with testimony that the nurses he worked with had the same degree requirements and similar training to those who cared for plaintiff's father.

In the context of the basic nursing duties at issue in this case, plaintiff's medical witnesses demonstrated sufficient knowledge of the relevant standard of care to be deemed expert witnesses. The testimony of plaintiff's witnesses should not be barred merely because they are doctors while defendant's agents are nurses. Clearly, defendant's suggestion that only nurses can qualify as experts to testify as to nursing standards of care is, in our opinion, not contemplated by G.S. 90-21.12. Defendant's cross-assignments of error are without merit.

Defendant also contends that plaintiff's medical witnesses were not qualified to testify because they were unfamiliar with the community standards for nursing care in Lumberton. However, Drs. LeBeau and Rein did testify that the standard of care for taking and reporting vital signs of a deteriorating patient was the same for nurses in accredited hospitals across the country. Where the standard of care is the same across the country, an expert witness familiar with that standard may testify despite his lack of familiarity with the defendant's community. Rucker v. Hospital, 285 N.C. 519, 206 S.E.2d 196 (1974); Howard v. Piver, 53 N.C.App. 46, 279 S.E.2d 876 (1981).

Defendant finally argues that plaintiff's evidence was merely speculative on the issue of proximate cause and therefore could not overcome the hurdle of a motion for directed verdict. Plaintiff's experts testified that defendant's nurses were negligent in not monitoring their patient's blood pressure after 11:00 p.m. when his condition worsened, in not reporting to Dr. Lee the rise in pulse to 120, and in erroneously telling Dr. Lee that the patient had not been given Librium when in fact he had. Plaintiff's experts positively stated that these acts of negligence proximately caused the death of plaintiff's father. The double dose of Librium may have prevented him from complaining of the sudden downturn in his condition, thereby preventing him from obtaining the medical assistance necessary to save his life. Even more likely, the failure to monitor blood pressure and report the 120 pulse rate kept Dr. Lee from learning that heart failure was imminent and that the patient was about to die without new treatment. This evidence was sufficient to create an issue of proximate cause for the jury.

Reversed and remanded.

WHICHARD and EAGLES, JJ., concur.