Rucker v. High Point Memorial Hospital, Inc.

206 S.E.2d 196 (1974)

285 N.C. 519

Burt E. RUCKER v. HIGH POINT MEMORIAL HOSPITAL, INC., and Horace Henry Stovall, M.D.

No. 81.

Supreme Court of North Carolina.

July 1, 1974.

*200 Schoch, Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, and Ellis I. Kahn, Charleston, S.C., for plaintiff-appellee.

Sapp & Sapp by Armistead W. Sapp, Jr., Greensboro, for defendant-appellant High Point Memorial Hospital, Inc.

Perry C. Henson and Sammy R. Kirby, Greensboro, for defendant-appellant Horace Henry Stovall, M.D.

W. C. Harris, Jr. and Randolph L. Worth, Raleigh, for North Carolina Hospital Association, amicus curiae.

*201 HIGGINS, Justice.

We agree with the conclusion of the North Carolina Court of Appeals that a new trial should be awarded in this case. However, we are of the opinion that the trial court committed error in excluding from the jury the testimony of Dr. Levy. Dr. Levy admitted that he was not familiar with the facilities of the defendant hospital and was not familiar with the members of its staff or with their qualifications. He testified he was familiar with the standards of practice and procedures in duly accredited hospitals and that they were essentially the same throughout the United States. However, the plaintiff alleged and both defendants admitted that the defendant High Point Memorial Hospital was engaged, at all times herein mentioned, in operating and maintaining "a fully accredited hospital" in the City of High Point. (Emphasis added.)

Dr. Levy testified that he is familiar with fully accredited hospitals and the standards and practices of such hospitals are essentially the same throughout the United States in the treatment of gunshot wounds; that the treatment of such wounds is standard; that x-ray examination is required to determine the extent of the injury and to determine what, if any, operative procedures should be followed.

The testimony that the treatment is essentially the same is by no means surprising. All shotguns are smooth bore. They perform uniformly as to range and penetration. The ammunition provided for shotguns is practically uniform throughout the United States. To his knowledge acquired through service, seminars, personal consultations, journals and periodicals, gunshot wounds and their treatment are not essentially different in any section of the United States. Insofar as applicable to a local doctor, the rules are stated in Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440; Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393; Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793; Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788; Murphy v. Little, 112 Ga.App. 517, 145 S.E.2d 760; Geraty v. Kaufman, 115 Conn. 563, 162 A. 33; McElroy v. Frost, 268 P.2d 273 (Okl. 1954); Riley v. Layton, 329 F.2d 53 (10th Cir.).

In this case, however, we are not dealing with a local country doctor. We are dealing with a duly accredited hospital and a member of its staff who was in charge of its emergency department. To begin with, a country doctor (Dr. Armstrong) gave first aid and sent the plaintiff to the defendant Hospital where he knew facilities were available for proper treatment of gunshot wounds.

Clearly the plaintiff's injury required facilities more advanced than were available in a country doctor's office. Dr. Armstrong knew this and sent the plaintiff to the hospital where proper facilities were available. Sound reason supports the view that gunshot wounds of the lower leg lend themselves most readily to uniform medical and surgical treatment without regard to locality. Not all injuries are so uniform and the treatment so generally well known and followed. The medical profession in Alaska, for example, would be informed and knowledgeable on the treatment of snow blindness, frozen feet, and frostbitten lungs, but they would be without experience in the treatment of rattlesnake bites. A Florida doctor would know about the snake bites, but not about frozen feet. A gunshot wound would require the same treatment whether in Florida or Alaska.

Dr. Armstrong made the first examination, performed the functions of giving first aid and of sending the plaintiff to the hospital. There Dr. Stovall took over instead of calling a specialist who by x-ray could examine and determine the extent of the plaintiff's injury and determine what should be done in the treatment. Instead, Dr. Stovall looked at the wound, instructed the nurse to give a shot, and sent the plaintiff back to a country doctor. Dr. Stovall's duty as a staff doctor in the *202 emergency department, as disclosed by the contract with the defendant Hospital, required him to "diagnose and treat all conditions except those requiring the services of a specialist. When the illness or injury is such that the services of a specialist is required, the Physician will provide emergency care . . . pending the arrival of the specialist on back-up call, who shall be called promptly."

Judge Lupton refused to permit Dr. Levy to testify as an expert witness. The Court of Appeals agreed with that ruling. Hence, in order that the ruling may not become the law of the case, we hold that Judge Lupton committed error in refusing to permit Dr. Levy to testify as an expert witness for the plaintiff.

The Court of Appeals correctly held that the contract of employment between the High Point Memorial Hospital and Dr. Horace Henry Stovall established the relationship of employer and employee. The answer of the hospital alleged that Dr. Stovall was an independent contractor. Here quoted are pertinent parts of the contract of employment which was identified and offered in evidence as plaintiff's Exhibit No. 11.

"It is the intention of the Hospital to engage a staff of four full time Physicians to provide professional coverage for the Hospital Emergency Department. To this end it is the desire of the above parties to enter into an agreement whereby the above named Physician will provide professional services, as hereinafter set forth, for the Emergency Department of the Hospital. The Hospital hereby engages the services of the above named Physician who by the execution of this agreement accepts an appointment as a member of the four man Emergency Department Staff. "It is mutually understood that each Physician member of the group, when on duty, will see all patients who present themselves to the Emergency Department for professional care. The Physician on duty will diagnose and treat all conditions except those requiring the services of a specialist. When the illness or injury is such that the services of a specialist is required the Physician will provide emergency care as indicated by the condition of the patient pending the arrival of the specialist on back-up call, who shall be called promptly. All services of the Emergency Department Physicians are to be performed in a manner as to further the best interest of the hospital including the best possible care and treatment of the patient with special emphasis on the maintenance of good public relations. "Physicians appointed to this service are required to be licensed to practice medicine in the state of North Carolina and prior to appointment they must become a member of the Medical Staff of the Hospital in the same manner as all other medical staff members."

Our writ of certiorari brought the record here for the review. The office of the writ "extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of . . . ." Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897; Chambers v. Board of Adjustment, 250 N.C. 194, 108 S.E.2d 211; Russ v. Board of Education, 232 N.C. 128, 59 S.E.2d 589. For that reason we have discussed matters not stressed by the Court of Appeals. We hold the pleadings, the evidence admitted, and that which was erroneously excluded, raise issues of fact to be resolved by the jury.

The decision of the Court of Appeals awarding a new trial is

Affirmed.