My last blog post addressed whether the common law duties of reasonable care and best judgment still existed in North Carolina in medical malpractice cases.  The blog post focused on the history of these common law duties.  This blog post focuses on my case – Swink v. Weintraub – which further cemented the notions that reasonable care and best judgment remain alive and well.

In Swink, the decedent had a pacemaker that required replacement.  The defendant doctor also elected to perform a “lead extraction.”  The doctor performed this procedure in a cath lab, as opposed to an operating room.  During the course of the lead extraction, a blood vessel was torn.  The patient died on the cath lab table.  Plaintiff alleged that the doctor breached the standard of care, failed to use reasonable care, and failed to use his best judgment in, among other things, performing the procedure in a cath lab, failing to ensure that immediate surgical support was available, failing to timely perform a pericardiocentesis and failing to properly monitor the status of the patient during the procedure.

The jury found in favor of the plaintiff.  Defendant appealed on many grounds, including the fact that the plaintiff’s experts were permitted to offer opinions that the defendant failed to use reasonable care and failed to use his best judgment with respect to various acts or omissions outside the context of the community standard required by the standard of care.  The Court of Appeals unanimously affirmed the jury’s decision.

Defendants’ argument hinged on their contention that Hunt v. Bradshaw, 242 N.C. 517, 522, 88 S.E.2d 762, 765 (1955), was superseded or altered by N.C. Gen.Stat. § 90-21.12. In Hunt, the Supreme Court set out the scope of a doctor’s duty to his or her patient, stating:

A physician or surgeon who undertakes to render professional services must meet these requirements:  (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess;  (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient’s case;  and (3) he must use his best judgment in the treatment and care of his patient.   If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences.   If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.

242 N.C. at 521-22, 88 S.E.2d at 765 (internal citations omitted).

In 1976, the General Assembly enacted N.C. Gen.Stat. § 90-21.12, which provides:

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.

Defendants asserted that “this statute effectively supplanted the common law because it stated that all actions alleging medical malpractice in this state are governed by the statutory community standard of care codified in G.S. 90-21.12.” The Court of Appeals stated that this contention was contrary to controlling Supreme Court authority.

The Court of Appeals noted that in Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984), the Supreme Court addressed a similar argument that N.C. Gen.Stat. § 90-21.12 supplanted the common law standards of care set out in Hunt. Like the defendants in Swink, the plaintiffs in Wall argued that “the common law standards of care enunciated in [the Supreme Court’s] prior cases were no longer relevant in a medical malpractice action” and “that all other standards and requirements defining a physician’s duty to a patient ․ are subsumed” within § 90-21.12. Wall, 310 N.C. at 191, 311 S.E.2d at 576.   The Supreme Court, however, held “that the adoption of the statute was not intended to accomplish the radical result contended by plaintiff[s].”  Id. at 192, 311 S.E.2d at 576.   The Court explained that it “simply [could not] conceive that by passing this legislation, the General Assembly intended to eliminate the previously existing common law obligations of a physician to his patient.”  Id. The Court, therefore, “conclude[d] that the intended purpose of G.S. 90-21.12 was merely to conform the statute more closely to the existing case law applying a ‘same or similar community’ standard of care.”  Wall, 310 N.C. at 191, 311 S.E.2d at 576.

Describing this purpose as a “limited” one, the Court then stressed that it “further disagree[d] with plaintiffs that it would be sufficient to instruct the jury that the sole issue relating to a physician’s alleged negligence is whether he complied with this statutory standard of care.   Our case law makes clear that this is not the extent of the physician’s duty to his patient.”   Id. The Court then quoted the three duties set out in Hunt, id. at 192-93, 311 S.E.2d at 576-77, specifically noting that the first duty-that a doctor “ ‘must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess’ ”, id. at 192, 311 S.E.2d at 577 (quoting Hunt, 242 N.C. at 521, 88 S.E.2d at 765)-had been “further refined by language in our later cases defining the ‘same or similar communities’ standard and by G.S. 90-21.12.” Wall, 310 N.C. at 192 n. 1, 311 S.E.2d at 577 n. 1. The Court concluded by holding:  “The applicable standard, then, is completely unitary in nature, combining in one test the exercise of ‘best judgment,’ ‘reasonable care and diligence’ and compliance 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.’ ”  Id. at 193, 311 S.E.2d at 577 (emphasis original).   The Court summarized its holding as “[h]aving determined that G.S. 90-21.12 did not abrogate the common law standards of care required of a physician and that an instruction combining elements of both the statute and phraseology from our earlier cases is necessary to fully explain the doctor’s duty․” Wall, 310 N.C. at 193, 311 S.E.2d at 577.

The Court then proceeded to analyze the jury instructions given in that case.   The Court specifically approved the trial court’s decision to instruct the jury first that the defendant physician was required to render health care in “ ‘accordance with the standards of practice exercised by like specialists with similar training and experience who are situated in the same or similar communities at the time the health care service was rendered’ ” followed by the additional instruction that it was “the duty of the defendant, [physician], to exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the plaintiff’s condition and to exert his best judgment in the treatment and care of the plaintiff.”  Id. at 194, 311 S.E.2d at 577-78 (holding that “[t]his was a complete and accurate summation of the defendant physician’s responsibilities to plaintiff”).

If, at that point in the opinion, any question remained whether N.C. Gen.Stat. § 90-21.12 related to the duty to exercise reasonable care and diligence and the duty to use best judgment, the Court definitively answered that question in addressing the portion of the jury instructions discussing the community standard of care:

We wish to emphasize again, however, that compliance with the “same or similar community” standard of care does not necessarily exonerate defendant from liability for medical negligence.   The doctor must also use his “best judgment” and must exercise “reasonable care and diligence” in the treatment of his patient.  Hunt v. Bradshaw, 242 N.C. 517, 521-22, 88 S.E.2d [sic] 762, 765 (1955).

If, however, the plaintiff proves a violation of the statutory standard of care which proximately caused her injury, this is sufficient to establish liability on the part of the attending health care professional for medical negligence.   It would similarly be sufficient to establish liability if the plaintiff were able to show that the defendant did not exercise his “best judgment” in the treatment of the patient or if the defendant failed to use “reasonable care and diligence” in his efforts to render medical assistance.   These three elements here described relate to the doctor’s duty to his patient, which is not necessarily synonymous with the plaintiff’s burden of proof in a medical malpractice case.  “If [the defendant] fails in any one particular [to fulfill his duty to the patient], and such failure is the proximate cause of injury or damage, he is liable.”  Id. at 522, 88 S.E.2d [sic] at 765.   (Emphasis added.)

Id. at 199 n. 2, 311 S.E.2d at 580 n. 2.

In short, our Supreme Court in Wall specifically rejected the argument made by the defendants in Swink.   The three duties set out in Hunt survived the enactment of N.C. Gen.Stat. § 90-21.12, with only the first duty implicating that statute.   Neither the duty to exercise reasonable care and diligence nor the duty to use the doctor’s best judgment are restricted by the “similar community” standard of care.   This holding of Wall has since been reiterated by the Supreme Court and this Court.   See Jackson v. Bumgardner 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) (holding that “[t]he scope of a physician’s duty to his patient” is set forth in Hunt, and only “[t]he first requirement is further refined by the ‘same or similar communities’ standard and N.C.G.S. § 90-21.12”);  O’Mara v. Wake Forest Univ. Health Scis., 184 N.C.App. 428, 435, 646 S.E.2d 400, 404 (“[Hunt’s ] first requirement is defined in N.C. Gen.Stat. § 90-21.12 (2005)[.]”), disc. review granted in part, disc. review denied in part, 362 N.C. 85, 659 S.E.2d 1 (2007) and 362 N.C. 468, — S.E.2d —-, 2008 N.C. LEXIS 641 (2008).

Defendants cited Bailey v. Jones, 112 N.C.App. 380, 435 S.E.2d 787 (1993), in support of their contention.  Bailey could not, however, overrule Wall. Nor was it apparent to the Court of Appeals, when the entire Bailey opinion was considered, that its holding in Bailey provided support for defendants’ position.   After pointing out that N.C. Gen.Stat. § 90-21.12 did not abrogate the common law duties set out in Hunt, but rather “provided a basis by which compliance with these duties could be determined,” Bailey, 112 N.C.App. at 386, 435 S.E.2d at 791, this Court used the language relied upon by defendants in this case:

Thus, the physician is required to (1) possess the degree of professional learning, skill, and ability possessed by others with similar training and experience situated in the same or similar communities at the time of the alleged negligent act;  (2) exercise reasonable care and diligence, 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 negligent act, in the application of his knowledge and skill to the patient’s case;  and (3) use his best judgment in the treatment and care of his patient.   Failure to comply with any one of these duties is negligence.

Id., 435 S.E.2d at 791-92 (emphasis added).   Defendants contended that this recitation of a physician’s duties indicates that testimony regarding the exercise of reasonable care and diligence must be in accordance with N.C. Gen.Stat. § 90-21.12. The Court stated that this language does not support defendants’ assertion that opinions regarding “best judgment” are limited by the standard of care set out in § 90-21.12.

Even, however, as to the “reasonable care and diligence” prong of Hunt, Bailey ultimately follows Wall. After determining that the plaintiff had presented expert testimony that the defendant doctor violated that duty, the Court held that the trial court erred in not instructing on that duty, stating:

The instructions given in this case are insufficient.   Our Supreme Court in specifically addressing this issue held that it was insufficient for the trial court to instruct the jury “that the sole issue relating to a physician’s alleged negligence is whether he complied with [N.C.G.S. § 90-21.12].” Wall, 310 N.C. at 192, 311 S.E.2d at 576.   In this instance the jury was instructed that Dr. Jones would be negligent if he “did not act in accordance with” “the standards of practice ․ among family practice physicians with similar training and experience, and who were situated in the same or similar communities at the time Dr. Jones examined the plaintiff in 1988.”   The use of only the precise language of N.C. Gen.Stat. § 90-21.12 was expressly prohibited by Wall, and therefore, the instruction was error requiring a new trial.

112 N.C.App. at 388, 435 S.E.2d at 792-93.   Thus, the Court of Appeals ultimately held in Bailey that compliance with the duty of reasonable care and diligence was separate from the standard of care set out in § 90-21.12.

Accordingly, the Court of Appeals in Swink stated it was bound by Wall and held that the community standard of care does not apply to the second and third prongs of Hunt. The Swink Court stated that concerns regarding the consequences of such a holding were immaterial here since only the Supreme Court could revisit its holding in Wall.

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