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McLean v. Sale

Filed: November 17, 1981.

ELIZABETH KAY MCLEAN
v.
DR. PAUL SALE



Appeal by plaintiff from Ferrell, Judge. Judgment entered 15 October 1980 in Superior Court, Swain County. Heard in the Court of Appeals 20 October 1981.

Martin (Harry C.), Judge. Judges Hedrick and Clark concur.

Martin

Plaintiff submits that the trial court erred in its instructions to the jury. We agree. The court instructed the jury*fn1 that: of the charge, but it is necessary that other

An examination may take many forms. And various methods may be employed to examine a person. Such

methods may include an investigation into the background of a person, references to available information about such person; and inquiry of others familiar with such person and with the acts, occurrences and events which resulted in the issuance of an order for the examination.

Such examination also may include consultation with others who may have counseled with such person. And a research into medical histories available about such person. The law requires at least a personal examination, however cursory or brief, shall be conducted by the examining qualified physician prior to a finding by such physician that such person was mentally ill or an inebriate and imminently dangerous to himself or others.

If a physician charged with the duty of examining a person presented to him fails to, at least, personally examine such person, he has not then complied with the provisions of the law.

However, in order to recover for the breach of failure to perform this duty, the Plaintiff is required to prove from the evidence and by its greater weight that such failure was wrongful in the sense that it was intentional and willful, without reasonable or just cause. In determining whether such failure of the physician to personally examine an individual presented for examination was intentional and willful, you may consider all the facts and circumstances you find to have existed at the time in question, of which the Defendant had knowledge; the means by which he learned such information; the reasonableness of his conduct and the circumstances; the nature and extent of any investigation he may have conducted; the motive, if any, he may have had in executing a commitment document; and any other relevant fact arising upon the evidence.

If you find that the Defendant intentionally failed to personally examine the Plaintiff, and that such was willful and without reasonable or just cause, then the Defendant would have breached the duty he owed the Plaintiff; otherwise, not.

So then, Members of the Jury, as to this first issue, I instruct you that if you find from the evidence and by its

greater weight, the burden being upon the Plaintiff to so satisfy you, that on December 3, 1976, the Defendant, Dr. Paul Sale, executed a commitment document which resulted in the Plaintiff being confined and admitted to Broughton Hospital. And that when he did so, he intentionally; that is, willfully and without reasonable or just cause, failed to personally examine the Plaintiff prior to ...


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