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Weatherford v. Glassman

June 02, 1998


The opinion of the court was delivered by: Walker, Judge.

Appeal by plaintiff from judgment entered 15 April 1997 by Judge Raymond A. Warren in Henderson County Superior Court. Heard in the Court of Appeals 17 March 1998.

In December of 1989, plaintiff consulted defendant regarding recurring right upper quadrant abdominal pains. After an examination, defendant performed an exploratory surgery of plaintiff's abdomen on 15 December 1989. Following surgery, plaintiff remained in the hospital for five days before being released by defendant on 20 December 1989. Later that week, upon plaintiff's request, defendant permitted plaintiff to travel to Charleston, South Carolina to visit her daughter.

While in Charleston, plaintiff began experiencing pain and was admitted to the hospital. Upon examination, it was determined that plaintiff was suffering from streptococcus, a bacterial infection, and peritonitis, an inflammation of the abdominal wall caused by infection or irritation.

On 15 February 1995, plaintiff filed a complaint against defendant in which she alleged the following:

5. At the time of her discharge from the hospital and medical care of Defendant, Plaintiff was heavily infected with streptococcus, and had peritonitis and her infections were clearly ascertainable [from] nurses notes and written hospital records but Defendant did not read said records as he later admitted to Plaintiff, and did not properly examine Plaintiff prior to such discharge, which examination, if properly done, would have revealed the true condition of Plaintiff.

6. Defendant's acts in discharging Plaintiff from the hospital and from his medical care amounted to abandonment of Plaintiff.

8. As the direct and proximate result of the said abandonment, negligence and medical malpractice of Defendant, Plaintiff had to be hospitalized, had to undergo surgery, came close to death and suffered bodily pain and mental anguish and pain and was painfully and permanently damaged and disabled and had to undergo expenses for doctors, hospitals and medicine including a permanently disabling condition known as Fibromyalgia all to her great damage in an amount exceeding Ten Thousand ($10,000.00) Dollars.

After answering, defendant filed a motion for summary judgment, which the trial court granted on 15 April 1995.

At the outset, we note that plaintiff has failed to comply with Rule 26(g) of the Rules of Appellate Procedure, which requires that "[t]he body of text shall be presented with double spacing between each line of text." N.C.R. App. P. 26(g). Further, Appendix B to the Rules of Appellate Procedure provides that "[t]he body of the document of petitions, notices of appeal, responses, motions, and briefs should be double-spaced, with captions, headings, and long quotes single-spaced." N.C.R. App. P. Appendix B. A failure to comply with Rule 26(g) could result in the imposition of appropriate sanctions, including dismissal of the appeal, in accordance with Rules 25(b) and 34(b) of the Rules of Appellate Procedure. Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 147-148, 468 S.E.2d 269, 273 (1996). However, pursuant to our discretionary authority under Rule 2 of the Rules of Appellate Procedure, we nevertheless choose to consider the merits of plaintiff's appeal. See N.C.R. App. P. Rule 2.

In a medical malpractice action, a plaintiff must show (1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff. See Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570, disc. review denied, 303 N.C. 711, ___ S.E.2d ____, petition for reconsideration denied, 304 N.C. 195, 291 S.E.2d 148 (1981). N.C. Gen. Stat. § 90-21.12 provides the applicable standard of care in medical malpractice actions:

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.

N.C. Gen. Stat. § 90-21.12 (1997). Further, this Court has announced that:

Usually [the question of] what is the standard of care required of a physician or surgeon is one concerning highly specialized knowledge with respect to which a layman can have no reliable information. As to this, both the court and jury must be dependent on expert testimony. Ordinarily there can be no other guide.

Mazza v. Huffaker, 61 N.C. App. 170, 175, 300 S.E.2d 833, 837, disc. review denied, 309 N.C. 132, 305 S.E.2d 734 (1983), petition for reconsideration ...

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