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Simons v. Georgiade

Filed: February 2, 1982.

JUDY W. SIMONS
v.
NICHOLAS GEORGIADE, DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, AND CARL QUILLEN



Appeal by plaintiff from Martin (John C.), Judge. Judgment entered 14 October 1980 as to defendants Duke University and Carl Quillen; judgment entered 16 October 1980 as to defendants Nicholas Georgiade and Private Diagnostic Clinic in Superior Court, Durham County. Heard in the Court of Appeals 12 November 1981.

Hill, Judge. Judges Vaughn and Whichard concur.

Hill

In 1972, plaintiff consulted her family doctor in Elizabeth City about discharges from her breasts. A biopsy by wedge resection was performed at that time, but plaintiff continued to have soreness and tenderness in her breasts along with a continued discharge. The family doctor referred plaintiff to Georgiade, a physician at Duke Medical Center.

On 16 April 1975, Georgiade examined plaintiff, diagnosed her condition as due to fibrocystic disease, and prescribed treatment by a surgical procedure known as a bilateral subcutaneous mastectomy. Georgiade explained to plaintiff that the procedure "was the only way [she] would ever get rid of [her] problem." Surgery was performed on 20 May 1975 at which time the diseased tissue was removed. A prosthesis was inserted to replace tissue removed from each breast.

Plaintiff left the hospital on 27 May 1975 and "was doing pretty good." She eventually returned to work as a hairdresser but found that she could no longer manage all of the physical requirements of dressing hair. Plaintiff's condition improved until December when she began "having a lot of pain again and the left prosthesis, or the left breast had gotten very hard."

Georgiade saw plaintiff again on 2 March 1976. He diagnosed plaintiff's malady as a capsular formation, or scar tissue buildup around the left prosthesis, which should be surgically released. The capsular release was scheduled for 17 March 1976, with plaintiff as an outpatient. Quillen assisted Georgiade in the procedure by anesthetizing plaintiff's breast area. Fourteen injections were made around the circumference of the breast, which was opened at the old incision. The prosthesis was removed, then the scar tissue, and the prosthesis was replaced. Plaintiff checked out of the hospital after the surgery and went with her husband to a local motel.

At about 8:00 p.m. the same evening, plaintiff awakened thinking her bandage "was cutting [her] breath off." Plaintiff's breathing difficulty grew progressively worse, and her husband carried her to the emergency room at Duke Medical Center. Plaintiff's lungs were X-rayed, and it was determined that greater than 50% of both her lungs had collapsed. Emergency room physicians

reinflated plaintiff's lungs without anesthesia because "[t]ime was a great elements." Following the emergency room treatment, plaintiff "point-blank asked Dr. Quillen did he puncture my lungs with those needles when he gave me the needles the day of the surgery. He told me that they try to be very careful to avoid those things but sometimes they happen anyway." Plaintiff eventually was discharged from the hospital on 24 March 1976.

Plaintiff returned home to Elizabeth City but continued to have trouble with her breasts and her chest. A few months later the right prosthesis began exhibiting symptoms similar to that of the left breast prior to the capsular release. Plaintiff refused to see Georgiade again and sought treatment at Durham County General Hospital, where additional surgery on both breasts was performed.

I

Plaintiff's first argument assigns error in the trial judge's exclusion of her expert witness's opinion on the nature of the cause of the collapsed lungs. During the voir dire examination of Dr. Gerald Golden, tendered as plaintiff's expert witness, plaintiff asked two hypothetical questions. First, Golden was asked, based on certain assumed facts, "do you have an opinion within a reasonable medical certainty as to the cause of the bilateral pneumothoracies [collapsed lungs]?" Defendants' objection was sustained, but the record shows that the answer would have been, "It came from a needle puncture of the lung." Second, Golden was asked, based on certain assumed facts, "do you have an opinion as to whether the causing of the bilateral pneumothoracies was a deviation from standard practice?" Defendants' objection again was sustained, but the record shows that Golden's answer would have been, "It is a deviation from accepted standard of care."

Plaintiff offered further "qualifying questions" which the trial judge deemed to relate back to the first hypothetical question. The questions to Golden sought to elicit further evidence that plaintiff's lung collapse was not spontaneous. Under a continuing, sustained objection, Golden stated that "the likelihood of anybody having a spontaneous pneumothorax bilaterally is almost nil." Nevertheless, defendants' objection to the first hypothetical question again was sustained.

Later, before the jury, plaintiff asked Golden the following hypothetical question:

Please assume that a 34 year old female suffering from fibrocystic disease of both breasts, assume that the patient on or about May 20, 1975 had a bilateral subcutaneous mastectomy with prosthesis being implanted and that subsequent to that bilateral subcutaneous mastectomy being performed that it was determined that capsular scarring had taken place and that replacing of the breast prosthesis should be performed, and that capsular release surgery was performed March 17, 1976. Doctor, I ask you to assume further that in the performance of this surgery, that is the replacement of the breast prostheses and the capsular release the anesthesia was injected as follows: assume that approximately 14 injections were made around the circumference of each breast injecting into the patient .5% Xylocaine, and assume further that after the surgery was performed the patient left the hospital and went to a local motel and then approximately 2 hours later the patient began to experience shortness of breath and chest pain, and assume further that the patient was immediately rushed to the emergency room of the hospital and that there it was discovered that she had bilateral pneumothoracies greater than 5% in each lung. Making those assumptions, do you have an opinion as to whether the surgical procedure performed in 1976 could or might have caused the bilateral pneumothoracies?

(Emphasis added.)

Defendants' objection to this question was overruled, and Golden was permitted to answer that his opinion was, "Yes." However, defendants' objection to the following question was sustained: "Doctor, I ask you in the causing of the bilateral pneumothoracies you've just testified about, if causing that there was a deviation from standard medical practice?" Golden's answer for the record was, "YEs, it was (Whispered)."

Plaintiff argues that the exclusion of the above answers and of Golden's voir dire testimony concerning the possibility of a spontaneous cause of plaintiff's collapsed lungs are the bases for his assignment of error. However, we note that although the answer to the first hypothetical question was excluded, the same

question was asked again, and the answer allowed, apparently upon plaintiff's rephrasing in the emphasized portion of the question quoted supra. We fail to see how plaintiff was prejudiced by the trial judge's first ruling under these circumstances.

Defendants cross-assign error to the trial judge's ruling, which allowed Golden to answer the hypothetical question quoted supra, on the ground "that without the crucial fact of entry into the lung by a needle, there was an insufficient predicate so as to allow the basing of an opinion thereon." We therefore must discuss the propriety of the judge's ruling on the hypothetical question quoted supra from defendants' perspective. In addition, we will discuss plaintiff's exceptions to the judge's rulings on the hypothetical questions concerning whether the cause of plaintiff's collapsed lungs was a deviation from standard medical practice.

Hypothetical Questions As To The Cause Of Plaintiffs collapsed Lungs

Defendants argue that the hypothetical question quoted supra provides no basis, except for speculation and conjecture, from which a negligent act can be shown.

When an expert witness testifies as to the facts based upon his personal knowledge, he may testify directly as to his opinion, . . . and when the facts are not within the knowledge of the witness himself, the opinion of an expert must be based upon facts supported by evidence stated in a proper hypothetical question,. . . . If the expert witness has personal knowledge of some of the facts but not all, a combination of these two methods may be employed.

In asking a hypothetical question, it is customary to incorporate in the question the relevant facts in evidence which counsel hopes will be accepted as true by the jury and to ask the witness his opinion based on such facts, if the jury shall believe them to be facts.

{PA}

Page 489} Taylor v. Boger, 289 N.C. 560, 564-65, 223 S.E.2d 350, 353 (1976) (emphasis added). See also Todd v. Watts, 269 N.C. 417, 152 S.E.2d 448 (1967). In light of these general principles, the question is whether an expert witness may make additional inferences from the facts assumed in a hypothetical question to form the basis of his opinion.

The function of an expert witness is to utilize his superior skill in a particular field to form an opinion which will be helpful to the jury. Such an opinion is admissible "where the witness is better qualified than the jury to draw appropriate inferences from the facts." 1 Stansbury's N.C. Evidence (Brandis rev. 1973) ยง 132, p. 425. "An inference is nothing more than a permissible deduction from the evidence . . ." Cogdell v. Wilmington & Weldon Railroad Co., 132 N.C. 852, 854, 44 S.E. 618, 619 (1903). Thus, a medical expert must use his "education and training . . . to deal with and express [his] ...


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