Elliott v. Owen

393 S.E.2d 347 (1990)

99 N.C. App. 465

Diane Kirby ELLIOTT, Plaintiff, v. Dr. Kenneth D. OWEN; Kenneth D. Owen, P.A.; Dr. W. Joseph Porter; Dr. Robert A. Herrin; and Porter, Barts, Herrin and Kirk, P.A., Defendants.

No. 8926SC1072.

Court of Appeals of North Carolina.

July 17, 1990.

*349 Collie and Wood by James F. Wood, III, Charlotte, for plaintiff-appellant.

R.C. Carmichael, Jr., Charlotte, for defendants-appellees Kenneth D. Owen and Kenneth D. Owen, P.A.

Golding, Meekins, Holden, Cosper & Stiles by John G. Golding, Charlotte, for defendants-appellees W. Joseph Porter, Robert A. Herrin and Porter, Barts, Herrin and Kirk, P.A.

EAGLES, Judge.

Plaintiff assigns as error the trial court's findings of fact that there existed no genuine issues of material facts and that defendants are entitled to judgment as a matter of law and the trial court's entry of judgment in favor of defendants dismissing plaintiff's action with prejudice. Plaintiff contends that several genuine issues of material fact are established in the record. First, plaintiff contends that an issue of fact exists concerning whether defendants rendered sufficient post-surgical follow-up care. We disagree and affirm.

Initially we note that

[i]n a medical malpractice action, the plaintiff must prove that the defendant breached the applicable standard of care and that the defendant's treatment proximately caused the injury. Summary judgment is rarely appropriate in negligence cases. On a motion for summary judgment, the moving party has the burden of establishing that no triable issue of fact exists and that he is entitled to judgment as a matter of law. Once the moving party meets this burden, the burden is then on the opposing party to show that a genuine issue of material fact exists. If the opponent fails to forecast such evidence, then the trial court's entry of summary judgment is proper.

White v. Hunsinger, 88 N.C.App. 382, 383, 363 S.E.2d 203, 204 (1988).

G.S. 90-21.12 provides that [i]n any action for damages for personal injury or death arising out of the furnishing *350 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 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.

"Our appellate courts have held that the standard of care adopted in G.S. 90-21.12 reflects the decisional law of our courts, and imposes a standard of care known as the `same or similar community rule.' Usually, expert testimony is required to establish the standard, to show its negligent violation, and to show that such negligent violation was the proximate cause of the injury complained of." Tice v. Hall, 63 N.C.App. 27, 28, 303 S.E.2d 832, 833 (1983), aff'd, 310 N.C. 589, 313 S.E.2d 565 (1984).

Here, plaintiff cites Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339 (1968) and Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973) in support of her contention that a surgeon's duty to his patient does not terminate upon the completion of surgery but a surgeon also has the duty to provide follow-up care commensurate with the case and must exercise reasonable diligence in the application of his knowledge and skill giving the patient such attention as required. Plaintiff argues that "the post-surgical care rendered to Plaintiff by the Defendants was inadequate and not commensurate with the duty owed to the Plaintiff." Plaintiff argues that neither defendant Owen nor defendant Porter did anything to follow-up her condition after removing the surgical splint and discovering that additional treatment was necessary. In support of their respective motions for summary judgment, defendants submitted affidavits stating that they conformed to the standard of care in the practice of orthodontics in their community. Both defendants Porter and Herrin submitted affidavits expressing their opinion that their examinations, operative procedures, post-operative care, treatment and examination of plaintiff met acceptable standards in their community. Dr. Martin D. Barringer, an orthodontist, stated in an affidavit that he knew the standard of practice of orthodontics in Mecklenburg County in 1982 and 1983 and that "all of Dr. Owen's treatment, procedures, models and cephlometric x-rays were entirely consistent with and met the standard of care." Dr. David E. Kelly, also an orthodontist, stated in an affidavit that the "orthodontic set-up made by Dr. Owen in this case was entirely consistent with and met the standard of care."

In response plaintiff submitted an affidavit in which she alleged that Dr. Porter failed to tell her that she needed immediate treatment to avoid movement of her teeth. Plaintiff also submitted an affidavit from Dr. John G. Edwards, an orthodontist who treated plaintiff after defendants, which did not mention the standard of care with respect to this case. During deposition, Dr. Edwards testified that he had reviewed defendant Owen's records concerning the diagnosis, treatment plan, and surgical prescription of plaintiff and that defendant Owen's treatment conformed with the standard of care in the practice of orthodontics in Mecklenburg County in 1981 and 1982. Dr. Edwards also testified that presurgery treatment and the surgery itself also conformed to the standard of care. Dr. Edwards further testified during deposition that he did not "expect to offer any expert testimony that either Dr. Owen or Dr. Porter breached any acceptable standard of care."

Here plaintiff has failed to show that a genuine issue of material fact exists concerning whether defendant had breached the applicable standard of care in their treatment of plaintiff including post-operative care. Accordingly this contention has no merit.

Secondly, plaintiff contends that there are significant issues of fact regarding the applicability of the doctrine of res ipsa loquitur to this case. We disagree.

*351 Generally, "[r]es ipsa applies when direct proof of the cause of an injury is not available, the instrumentality involved in the accident is under the defendant's control, and the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission." ... [T]he North Carolina Supreme Court has long recognized that where proper inferences may be drawn by ordinary men from proved facts which give rise to res ipsa loquitur without infringing this principle, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things....

Parks v. Perry, 68 N.C.App. 202, 205-6, 314 S.E.2d 287, 289, disc. rev. denied, 311 N.C. 761, 321 S.E.2d 142; 311 N.C. 761, 321 S.E.2d 143 (1984). "The test of the applicability of res ipsa loquitur in medical malpractice cases is twofold: (1) the injurious result must rarely occur standing alone and (2) the result must not be an inherent risk of the operation." Id. 68 N.C.App. at 206, 314 S.E.2d at 290.

Here, under the first prong of the res ipsa test plaintiff's own orthodontist, Dr. Edwards, testified during deposition that relapse was a known risk or possible result of the surgical procedure performed on plaintiff. Dr. Edwards testified that he did not think that plaintiff had suffered a relapse but he did not give an opinion as to what had happened to plaintiff. Further Dr. Barrington testified that while he did not know what happened in this particular case, relapse could in fact occur and that he had seen many of his own cases relapse. Dr. Barrington stated that one of his own patients returned to his office one or two weeks post-treatment and the patient's jaw was forward six millimeters and open six millimeters. He stated that the patient's condition was corrected within two weeks after wearing rubber bands. To explain why plaintiff's jaw was forward of its original position, defendant Owen testified that plaintiff's lower jaw had relapsed and dragged the upper jaw with it. Defendant Porter also testified that plaintiff's lower jaw had relapsed but he felt that plaintiff's problem could have been treated orthodontically. On this record there is ample evidence that relapse was an inherent risk of this type of surgery and that at the earliest detection of movement plaintiff was urged to return to defendant Owen to treat the relapse and prevent further movement. Accordingly this contention must also fail.

Finally, plaintiff contends that the record establishes genuine issues of material fact regarding whether Defendants obtained plaintiff's informed consent prior to performing the surgery in question. At the outset we note that plaintiff has failed to raise this contention either in her complaint or otherwise before the trial tribunal. Accordingly this contention is not properly before this court. See In re Bruce, 97 N.C.App. 138, 387 S.E.2d 82 (1990).

In summary, plaintiff has failed to produce a forecast of evidence that defendants were negligent in their treatment of her condition. Accordingly, the decision of the lower court is affirmed.

Affirmed.

WELLS and GREENE, JJ., concur.

WELLS, Judge, concurring:

As the opinions of our appellate courts have made clear, the battle of experts begins very early in the usual medical malpractice case. See e.g., Beaver v. Hancock, 72 N.C.App. 306, 324 S.E.2d 294 (1985).

In this case, defendants, through their forecast, were able to show by expert witnesses that they had not violated any standard of care owed by them to plaintiff. This forecast required plaintiff to forecast through an expert witness that defendants had violated such a duty, which plaintiff simply failed to do.