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Johnson v. Wayne Memorial Hospital, Inc.

Court of Appeals of North Carolina

July 5, 2017

TRACIE JOHNSON, ADMINISTRATOR OF THE ESTATE OF MARIO JOHNSON, Deceased, Plaintiff,
v.
WAYNE MEMORIAL HOSPITAL, INC., TERRY A. GRANT, M.D., IMMEDIATE CARE OF GOLDSBORO, PLLC, GOLDSBORO EMERGENCY MEDICAL SPECIALISTS, INC., DENNIS A. ISENHOWER, P.A., LLOYD SMITH, M.D., PHILIP D. MAYO, M.D., and EASTERN MEDICAL ASSOCIATES, P.A., Defendants.

          Heard in the Court of Appeals 8 June 2017.

         Appeal by plaintiff from order entered 19 February 2016 by Judge Beecher R. Gray in Wayne County Superior Court. No. 13 CVS 1023

          The Melvin Law Firm, P.A., by R. Bailey Melvin, for plaintiff-appellant.

          McGuireWoods LLP, by Patrick M. Meacham and Kayla Marshall, for defendant-appellee Wayne Memorial Hospital, Inc.

          ZACHARY, Judge.

         Tracie Johnson, Administrator of the Estate of Mario Johnson (plaintiff), appeals from an order granting directed verdict in favor of Wayne Memorial Hospital, Inc. (defendant, hereafter "the hospital") on plaintiff's claim of medical negligence. Plaintiff alleged that the hospital's process for review of X-ray over-read discrepancies did not meet the standard of care for hospitals in the same or similar communities. On appeal, plaintiff contends that the court erred by ruling that plaintiff failed to present competent evidence of the relevant standard of care and by ruling that the hospital was insulated from liability arising from its allegedly negligent policy for review of X-ray over-read discrepancies by the subsequent intervening negligence of the physicians who treated Mario Johnson (Mr. Johnson) prior to his death. After careful review of plaintiff's arguments in light of the record on appeal and the applicable law, we conclude that the trial court did not err by granting directed verdict for the hospital based on plaintiff's failure to offer competent testimony as to the standard of care or the hospital's breach of that standard. Having affirmed the court's order on this basis, we find it unnecessary to reach plaintiff's other argument.

         I. Factual and Procedural History

         At around 3:00 a.m. on 11 February 2011, Mr. Johnson came to the emergency department of the hospital seeking treatment for pain. Mr. Johnson suffered from sickle cell anemia, an inherited blood disorder that affects red blood cells. At the emergency room, Mr. Johnson was treated by Dr. Terry Grant, M.D., who administered pain medication and a saline solution, and ordered various tests for Mr. Johnson, including blood tests, an EKG, a test for influenza, and a chest X-ray. The results of these tests showed that Mr. Johnson's temperature, respiration, blood pressure, and blood oxygen level were normal. The blood test results indicated that Mr. Johnson's white blood cell count was elevated, which can be caused by a variety of medical conditions; however, other blood tests indicated that Mr. Johnson's red blood cells were normal and that he was not showing signs of inflammation. Dr. Grant's interpretation of the X-ray of Mr. Johnson's chest was that the results were normal. Dr. Grant concluded that because Mr. Johnson "did not appear overtly ill" and that because his "vital signs were normal" he did not need to be admitted to the hospital. Mr. Johnson was discharged from the hospital at around 5:00 a.m., with instructions to return if his condition worsened. Mr. Johnson returned to the hospital on 12 February 2011, at which time health care providers in the emergency room determined that he was suffering from "acute chest syndrome, " a life-threatening complication of sickle cell anemia. Mr. Johnson was admitted to the intensive care department of the hospital. Despite further treatment, Mr. Johnson died during the early morning hours of 13 February 2011.

         On 11 February 2013, plaintiff filed suit against Wayne Memorial Hospital, Inc.; Dr. Terry Grant; Dr. Paul Willman; Dennis Isenhower, P.A.; Dr. Lloyd Smith; Dr. Philip Mayo; Immediate Care of Goldsboro, PLLC; Goldsboro Emergency Medical Specialists, Inc.; Wayne Radiologists, P.A.; and Eastern Medical Associates, P.A. Dr. Smith, Dr. Mayo, Dr. Willman, and Physician's Assistant Isenhower[1] were health care providers who treated Mr. Johnson on 12 and 13 February 2011. Plaintiff's complaint alleged that (1) all of the individual defendants were agents or employees of the hospital; (2) Dr. Grant was an agent, employee, or owner of Immediate Care of Goldsboro, PLLC, and of Goldsboro Emergency Medical Specialists, Inc.; (3) Dr. Willman was an agent, employee, or owner of Wayne Radiologists, P.A.; (4) PA Isenhower and Dr. Smith were agents or employees of Immediate Care of Goldsboro, PLLC, and of Goldsboro Emergency Medical Specialists, Inc.; and (5) Dr. Mayo was an agent, employee, or owner of Eastern Medical Associates, P.A. Plaintiff sought damages for medical malpractice, based upon the alleged negligence of the individual defendants as well as the derivative liability of the hospital and the medical practices with which plaintiff alleged that the individual defendants were associated. With respect to the individual defendants, plaintiff alleged that each had failed to provide appropriate care to Mr. Johnson or to meet the relevant standard of care and that the individual's negligence was a proximate cause of Mr. Johnson's death. Plaintiff sought damages against the hospital based upon allegations of medical malpractice arising from negligent treatment of Mr. Johnson, together with allegations that the hospital was negligent in that its policy for review of discrepancies between an emergency room physician's interpretation of an X-ray and that of a radiologist did not meet the relevant standard of care. The plaintiff later dismissed all claims against defendants Immediate Care of Goldsboro, PLLC, Dr. Willman, and Wayne Radiologists, P.A.

         Plaintiff's claims against the remaining defendants were tried before the trial court and a jury beginning on 25 January 2016. The evidence offered at trial is discussed below, as relevant to the issues raised on appeal. At the close of plaintiff's evidence, the trial court granted directed verdict in favor of the hospital on plaintiff's allegations that the individual defendants were actual or apparent agents of the hospital, and on plaintiff's claims of clinical malpractice of the hospital arising from the individual health care providers' treatment of Mr. Johnson. The trial court did not dismiss plaintiff's negligence claim against the hospital based on the hospital's process for review of X-ray over-read discrepancies. At the close of all the evidence, however, the trial court granted directed verdict in favor of the hospital on this claim as well. As a result, the only claims submitted to the jury were the allegations of negligence on the part of the individual defendants.

         The jury returned verdicts finding that the individual defendants were not negligent. The trial court signed an order on 8 February 2016, which was filed on 8 March 2016, dismissing all of plaintiff's claims with prejudice. On 18 February 2016, plaintiff filed a motion asking the trial court to reconsider its entry of directed verdict in favor of the hospital on plaintiff's claim that the hospital's process for review of X-ray over-read discrepancies did not meet the standard of care. The trial court denied plaintiff's motion on 8 March 2016. On the same day, plaintiff noted an appeal to this Court "from the [trial court's] Order for a Directed Verdict for [the hospital], entered on February 10, 2016[.]" The directed verdict to which plaintiff's notice of appeal refers is the order directing a verdict in favor of the hospital on plaintiff's claim arising from the hospital's policy for review of X-ray over-read discrepancies. Plaintiff has not appealed from the trial court's order granting directed verdict for the hospital on plaintiff's claim for liability based on agency, from the verdicts finding the individual defendants not negligent, or from the judgment entered by the trial court after the trial. Therefore, the only issue before us on appeal is plaintiff's challenge to the order that effectively dismissed the claim that the hospital was negligent in its X-ray over-read discrepancy review policy.

         II. Standard of Review

         Plaintiff has appealed from an order granting directed verdict for the hospital. "The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Green v. Freeman, 367 N.C. 136, 140, 749 S.E.2d 262, 267 (2013) (internal quotation omitted).

When considering a motion for a directed verdict, a trial court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference arising from the evidence. Any conflicts and inconsistencies in the evidence must be resolved in favor of the non-moving party. If there is more than a scintilla of evidence supporting each element of the non-moving party's claim, the motion for a directed verdict should be denied. . . . Because the trial court's ruling on a motion for a directed verdict addressing the sufficiency of the evidence presents a question of law, it is reviewed de novo.

Maxwell v. Michael P. Doyle, Inc., 164 N.C.App. 319, 322-23, 595 S.E.2d 759, 761 (2004) (citations omitted). "A motion for directed verdict 'tests the legal sufficiency of the evidence to take the case to the jury and support a verdict' for the nonmovant." Scarborough v. Dillard's, Inc., 363 N.C. 715, 720, 693 S.E.2d 640, 643 (2009) (quoting Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)).

         On appeal, plaintiff challenges certain findings of fact made by the trial court in its directed verdict order. "However, this Court, in reviewing trial court rulings on motions for directed verdict and judgment notwithstanding the verdict, has held that the trial court should not make findings of fact, and if the trial court finds facts, they are not binding on the appellate court. . . . [T]hese findings are not binding on the appellate court even if unchallenged by the appellant." Scarborough, 363 N.C. at 722-23, 693 S.E.2d at 644 (citation omitted). As a result, our review of the propriety of the trial court's directed verdict order is not dependent upon the evidentiary support for or the legal relevance of the court's findings of fact.

         III. Medical Malpractice Claim Against the Hospital

         A. Legal Principles

         In reviewing a trial court's ruling on a motion for directed verdict, "our de novo inquiry is whether the evidence, taken in a light most favorable to plaintiff, provides more than a scintilla of evidence to support each element of plaintiff's claim. If that burden is satisfied, the motion for directed verdict should be denied[.]" Heller v. Somdahl, 206 N.C.App. 313, 314, 696 S.E.2d 857, 860 (2010) (citation omitted).

         "Evidence of medical negligence or malpractice adequate to withstand a motion for directed verdict must establish each of the following elements: '(1) the standard of care [duty owed]; (2) breach of the standard of care; (3) proximate causation; and (4) damages.' Failure to make a prima facie evidentiary showing in support of even one element is fatal." Clark v. Perry, 114 N.C.App. 297, 304-05, 442 S.E.2d 57, 61 (1994) (quoting Lowery v. Newton, 52 N.C.App. 234, 237, 278 S.E.2d 566, 570 (1981) (other citation omitted).

         "One of the essential elements of a claim for medical negligence is that the defendant breached the applicable standard of medical care owed to the plaintiff." Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999). "Plaintiffs must establish the relevant standard of care through expert testimony." Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009) (citations omitted). "To meet their burden of proving the applicable standard of care, plaintiffs must satisfy the requirements of N.C. G.S. § 90-21.12[.]" Id. At the time that plaintiff's claim arose, [2] N.C. Gen. Stat. § 90-21.12(a) provided that:

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 . . . 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.

         B. Discussion

         Plaintiff alleges that the hospital was negligent in its process for review by a radiologist of X-rays that were originally interpreted by an emergency room physician and subsequent communication of any discrepancy in the radiologist's interpretation to emergency room personnel. The dispositive issue is whether plaintiff produced evidence that the hospital's policy or practice "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(a) (2011). We conclude that plaintiff failed to offer any evidence of either (1) the standard of care to which a hospital in the same or similar community should adhere in its process for the review of X-rays, or (2) the hospital's breach of the standard of care.

         The hospital policy at issue becomes relevant in the following circumstances. When a patient, such as Mr. Johnson, is treated in the hospital's emergency room, the physician who is treating the patient may order an X-ray. The emergency room physician reviews, or "reads, " the X-ray as part of the physician's determination of the appropriate treatment for the patient. The X-ray is later provided to a radiologist, who is a physician specializing in the interpretation and analysis of X-rays and other scans. The radiologist's review of the X-ray that was originally interpreted by the emergency room physician is referred to as an "over-read." If the radiologist's interpretation of the X-ray differs from that of the emergency room physician, this difference is termed a "discrepancy." Plaintiff alleges that the hospital's process for informing emergency room personnel about a discrepancy observed by the radiologist in the over-read did not meet the applicable standard of care.

         The general structure of the hospital's policy at the time of Mr. Johnson's treatment at the hospital in regard to communication about discrepancies detected in a radiologist's over-read is set out in the ...


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