Ever since the enactment of N.C.G.S. § 90-21.12, defense lawyers have argued that the common law duties owed by doctors to their patients to exercise best judgment and reasonable care and diligence have been supplanted by the statute which requires that the plaintiff prove a breach in the standard of care. However, the common law duties of best judgment and reasonable care and diligence are alive and well. Consequently, if you represent an injured patient, do not gloss over the common law duties. For example, I have had cases where my expert testified that, while he or she did not find a breach in the standard of care, they nevertheless felt the doctor failed to use his or her best judgment. It is important that you discuss the common law duties with your experts prior to giving deposition and trial testimony.
The scope of a physician’s duty to a patient was described in Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955), as follows:
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. [citations omitted]. 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 or damage, he is liable.
Hunt, 242 N.C. at 521-22, 88 S.E.2d at 765 (emphasis added). These duties have been subsequently reaffirmed by the appellate courts including the North Carolina Supreme Court. Wall v. Stout, 310 N.C. 184, 192-93, 311 S.E.2d 571, 576-77 (1984); O’Mara v. Wake Forest University Health Sciences, 646 S.E.2d 400, 404 (N.C. App. 2007).
N.C.G.S. § 90-21.12 was enacted in 1976. The plaintiff in Wall argued that G.S. § 90-21.12 supplanted common law. Wall, 310 N.C. at 191, 311 S.E.2d at 576. The Court wrote that the plaintiff sought to accomplish a “radical result,” saying, “[w]e simply cannot conceive that by passing this legislation, the General Assembly intended to eliminate the previously existing common law obligations of a physician to his patient.” Wall, 310 N.C. at 192, 311 S.E.2d at 576.
The Court concluded 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.” Id. The court continued:
Considering the statute’s limited purpose, we further disagree 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 Supreme Court reaffirmed the three common law standards enunciated in Hunt; further, the Court stated in Footnote 1 of the opinion that G.S. § 90-21.12 refines the common law duty which requires a degree of professional learning, skill and ability which others similarly situated ordinarily possess. Wall, 310 N.C. at 192-93, 311 S.E.2d at 576-77, FN.1. This interpretation was more recently recognized by the Court of Appeals in O’Mara v. Wake Forest University Health Sciences, 646 S.E.2d 400, 404 (N.C. App. 2007). See Bailey v. Jones, 112 N.C. App. 380, 386-88, 435 S.E.2d 787, 792-93 (1993)(holding that trial court’s instruction mirroring G.S. § 90-21.12 and refusal to instruct on the duty to exercise reasonable care and diligence where such evidence was introduced was error entitling the plaintiff to a new trial).
Some defense lawyers have argued that evidence regarding best judgment and reasonable care is permissible so long as a community standard is applied per the statute. However, such an argument ignores Wall and O’Mara, supra, which specifically provide that G.S. § 90-21.12 and its “same or similar communities” language only refines the common law duty which requires a degree of professional learning, skill and ability which others similarly situated ordinarily possess. Wall, 310 N.C. at 192-93, 311 S.E.2d at 576-77, FN.1; O’Mara v. Wake Forest University Health Sciences, 646 S.E.2d 400, 404 (N.C. App. 2007). Consequently, the “community standard” requirement does not apply to the common law duties to exercise best judgment and reasonable care.
Other defense lawyers have argued that expert testimony on best judgment and reasonable care invades the province of the jury. On the contrary, North Carolina medical negligence cases explicitly provide that expert testimony is required to establish failures to use best judgment and reasonable care where such failures would not be recognized by a layperson. Hunt, 242 N.C. at 524, 88 S.E.2d at 766; Bailey, 112 N.C. App. at 388, 435 S.E.2d at 792 (citations omitted); Clark v. Perry, 114 N.C. App. 297, 307, 442 S.E.2d 57, 62 (1994).
Consequently, while it is imperative that you prepare your experts with respect to the medical community at issue and the applicable standard of care, do not forget to cover the common law duties of reasonable care and diligence, and best judgment.
