{ "id": 8520626, "name": "HAYWOOD HARRIS, in his capacity as Administrator of the Estate of ETTA HARRIS v. GEORGE J. MILLER, M.D.", "name_abbreviation": "Harris v. Miller", "decision_date": "1991-07-02", "docket_number": "No. 902SC336", "first_page": "312", "last_page": "331", "citations": [ { "type": "official", "cite": "103 N.C. App. 312" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "37 ALR3d 420", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "46 ALR3d 275", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "12 ALR3d 1017", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "197 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553027 ], "year": 1973, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0632-01" ] }, { "cite": "367 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "no error in excluding nurse's testimony as to the standard of care required of a surgeon or anesthesiologist where there was no foundation that nurse was familiar with those standards" } ], "opinion_index": 0 }, { "cite": "322 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516320, 2516257, 2517703, 2518312, 2513983 ], "year": 1988, "pin_cites": [ { "parenthetical": "no error in excluding nurse's testimony as to the standard of care required of a surgeon or anesthesiologist where there was no foundation that nurse was familiar with those standards" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0116-05", "/nc/322/0116-01", "/nc/322/0116-03", "/nc/322/0116-02", "/nc/322/0116-04" ] }, { "cite": "362 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "88 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357991 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/88/0183-01" ] }, { "cite": "327 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "physicians competent to testify to standard of care for nurses" } ], "opinion_index": 0 }, { "cite": "313 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718689, 4718243, 4721833, 4725486, 4720539 ], "year": 1985, "pin_cites": [ { "parenthetical": "physicians competent to testify to standard of care for nurses" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0329-05", "/nc/313/0329-01", "/nc/313/0329-04", "/nc/313/0329-02", "/nc/313/0329-03" ] }, { "cite": "323 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "434", "parenthetical": "where standard is same across the country, expert familiar with standard may testify despite no familiarity with defendant's community" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 731", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526323 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "736", "parenthetical": "where standard is same across the country, expert familiar with standard may testify despite no familiarity with defendant's community" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0731-01" ] }, { "cite": "303 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575232, 8575267, 8575242, 8575255, 8575295 ], "year": 1981, "pin_cites": [ { "parenthetical": "general/plastic surgeon competent to testify to standard of care of neurosurgeon" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0711-01", "/nc/303/0711-04", "/nc/303/0711-02", "/nc/303/0711-03", "/nc/303/0711-05" ] }, { "cite": "278 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "general/plastic surgeon competent to testify to standard of care of neurosurgeon" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170131 ], "year": 1981, "pin_cites": [ { "parenthetical": "general/plastic surgeon competent to testify to standard of care of neurosurgeon" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0234-01" ] }, { "cite": "363 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "obstetrician-gynecologist competent to testify as to referral practices of pediatrician" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358281 ], "year": 1988, "pin_cites": [ { "parenthetical": "obstetrician-gynecologist competent to testify as to referral practices of pediatrician" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0382-01" ] }, { "cite": "221 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "28 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549685 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/28/0418-01" ] }, { "cite": "67 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "parenthetical": "an earlier appeal of the same case" } ], "opinion_index": 0 }, { "cite": "234 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621029 ], "year": 1951, "pin_cites": [ { "parenthetical": "an earlier appeal of the same case" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0222-01" ] }, { "cite": "72 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1952, "pin_cites": [ { "page": "591" }, { "page": "591" } ], "opinion_index": 0 }, { "cite": "236 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624615 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0259-01" ] }, { "cite": "97 A.2d 59", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1953, "opinion_index": 0 }, { "cite": "373 Pa. 593", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1240343 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/pa/373/0593-01" ] }, { "cite": "129 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "618", "parenthetical": "quoting Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953)" }, { "page": "616", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "259 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559112 ], "year": 1963, "pin_cites": [ { "page": "28", "parenthetical": "quoting Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0016-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "139-40", "parenthetical": "setting forth eight factors which are, among others, useful in determining whether a right of control exists" } ], "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "year": 1944, "pin_cites": [ { "page": "15", "parenthetical": "setting forth eight factors which are, among others, useful in determining whether a right of control exists" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "678 F.2d 485", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1470496 ], "year": 1982, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/f2d/678/0485-01" ] }, { "cite": "262 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548285 ], "year": 1980, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0260-01" ] }, { "cite": "361 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572852 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0078-01" ] }, { "cite": "393 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308738, 5306498, 5305879, 5304824, 5309148 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0598-05", "/nc/326/0598-01", "/nc/326/0598-02", "/nc/326/0598-04", "/nc/326/0598-03" ] }, { "cite": "389 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522767 ], "year": 1990, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0648-01" ] } ], "analysis": { "cardinality": 1350, "char_count": 43070, "ocr_confidence": 0.772, "pagerank": { "raw": 2.7176517842824375e-07, "percentile": 0.8298858350428925 }, "sha256": "7c3c60536fcb1f193a4e10416054b6166971d4c9088c5c3dadfac81b46c6c47c", "simhash": "1:35076db2f2ab946a", "word_count": 7007 }, "last_updated": "2023-07-14T17:27:13.805826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ORR concurs.", "Judge PHILLIPS dissents with separate opinion." ], "parties": [ "HAYWOOD HARRIS, in his capacity as Administrator of the Estate of ETTA HARRIS v. GEORGE J. MILLER, M.D." ], "opinions": [ { "text": "GREENE, Judge.\nEtta Harris and her husband, Haywood Harris, filed this medical malpractice action on 1 April 1983 against George J. Miller, M.D. (an orthopedic surgeon), William Hawkes (a certified registered nurse anesthetist), and Beaufort County Hospital. On 21 October 1986, Mr. and Mrs. Harris settled with nurse Hawkes and Beaufort County Hospital and released them from liability.\nOn 8 November 1987, Mrs. Harris died from injuries sustained during her operation. Mr. Harris, as administrator of the estate of Etta Harris, was substituted as plaintiff and the complaint was amended to allege Mrs. Harris\u2019 wrongful death. Dr. Miller was the only defendant named in the amended complaint. The complaint alleges that Dr. Miller was negligent in treating Mrs. Harris, negligent in the supervision of nurse Hawkes, and vicariously liable for the negligence of nurse Hawkes in that Hawkes was Dr. Miller\u2019s agent.\nTrial began on 28 November 1988. At the close of plaintiff\u2019s evidence, the trial court granted defendant\u2019s motion for a directed verdict on the issue of vicarious liability on the ground there was insufficient evidence of an agency relationship between Dr. Miller and nurse Hawkes and on the ground that the release of Hawkes relieved Dr. Miller of any vicarious liability. The jury returned a verdict in favor of defendant on the issue of defendant\u2019s own negligence. Plaintiff appeals.\nPlaintiff\u2019s evidence tends to show that in 1981, Mrs. Harris experienced severe back pain and was referred by her physician to Dr. Miller. Dr. Miller diagnosed a ruptured disc requiring a laminectomy. On 26 May 1981, Mrs. Harris was admitted to Beaufort County Hospital and on 31 May 1981 she signed a consent form authorizing \u201cDr. Miller and/or such assistants as may be selected by him\u201d to perform the operation.\nMrs. Harris underwent surgery on 1 June 1981. Dr. Miller performed the surgery and nurse anesthetist Hawkes administered the anesthesia. At the time, Beaufort County Hospital did not employ a staff anesthesiologist. The hospital\u2019s Anesthesia Manual provided that \u201c[a]nesthesia care shall be provided by nurse anesthetists working under the responsibility and supervision of the Surgeon doing the case.\u201d Nurse Hawkes was employed by the hospital as a certified registered nurse anesthetist. Dr. Miller, on the other hand, was in private practice and was not on the hospital staff. Nor was he in any way under contract with the hospital. He had applied for and obtained privileges to use the hospital facilities in the treatment of his patients.\nPlaintiff introduced the testimony of an expert in anesthesiology who had reviewed Mrs. Harris\u2019 medical records and the depositions of Dr. Miller and nurse Hawkes. Based upon the anesthesia record maintained by nurse Hawkes throughout Mrs. Harris\u2019 operation, upon Hawkes\u2019 deposition, and upon his own expertise, the expert testified that after Mrs. Harris was put to sleep there was a small drop in her blood pressure. This drop is a normal reaction to the anesthetic agents used on patients. Generally, however, the blood pressure goes back up once the operation begins as a result of surgical stimulation. Mrs. Harris\u2019 blood pressure never went up.\nAt 8:05 a.m., approximately the time the surgery began, the blood pressure dropped lower and the heart rate rose to an abnormally high rate. Nurse Hawkes thought at the time these abnormalities resulted because Mrs. Harris was not deeply asleep. He increased the anesthetic. At 9:15 a.m., the blood pressure dropped lower. The anesthesia record indicates that by 9:30 a.m. the blood pressure had dropped so low it was no longer audible and the heart rate had risen higher. The expert testified that, based on the anesthesia record, Hawkes was continuing to give Mrs. Harris 33% oxygen, 66% nitrous oxide, and V2 % ethrane. He further testified that in such a situation it was common knowledge that the proper measure is to cut off everything going to the patient except oxygen which is turned up to 100%, and that in his opinion Mrs. Harris suffered from brain damage due to hypoxia, or insufficient oxygenation, during the operation.\nPlaintiff introduced the testimony of another expert in anesthesiology who had also reviewed the medical records and depositions. He testified that when nurse Hawkes became concerned that Mrs. Harris was not getting enough anesthesia he gave her a dose of innovar, a combination of a narcotic and tranquilizer which tends to decrease blood pressure. He testified that the low blood pressure and high heart rate which prompted Hawkes to give more anesthesia was not a result of insufficient anesthesia as Hawkes thought, but was a result of Hawkes\u2019 improper placement of the endotracheal tube. A post-operative x-ray revealed that the tube was ventilating only one lung. The expert stated his opinion that Mrs. Harris suffered brain damage between 9:15 and 10:30 a.m. due to prolonged low blood pressure and an improperly placed endotracheal tube.\nPlaintiff read into evidence Dr. Miller\u2019s deposition which established that preparation for Mrs. Harris\u2019 surgery began at 7:30 a.m. on 1 June 1981. Dr. Miller began the operation at 8:05 a.m. At approximately 8:40 a.m., Dr. Miller noticed an unusual amount of bleeding which he began to control by direct pressure. Between 8:50 and 9:00 a.m., Dr. Miller noted the bleeding had not stopped as he would normally expect. At 9:00 a.m., when Mrs. Harris had lost three to four hundred cc\u2019s of blood, approximately twice the normal amount, Dr. Miller told nurse Hawkes to begin giving blood to Mrs. Harris. Dr. Miller stated he did not recall any response from Hawkes, though other evidence indicates that Hawkes responded that blood volume was \u201cokay.\u201d After requesting blood, Dr. Miller returned to his attempts to control the bleeding and was unaware that blood was not started immediately. As a precautionary measure, two units of blood had been cross-matched to Mrs. Harris\u2019 blood before the operation began, and were in refrigeration in the hospital\u2019s blood bank on the floor above the operating room. Dr. Miller\u2019s post-operative review of the blood bank\u2019s records indicated the blood was not signed out of the blood bank until 9:30 a.m. Dr. Miller estimated that at the very earliest Mrs. Harris began receiving blood at 9:40 a.m., though nurse Hawkes did not designate in the records he kept during the operation the specific time blood was first given to Mrs. Harris. The blood bank records indicate the second unit was signed out at 9:43 a.m., and two additional units were cross-matched and signed out at 10:43 a.m. These two additional units of blood were cross-matched pursuant to a request made by Dr. Miller shortly after 10:00 a.m. By that time Dr. Miller had called in another surgeon, Dr. Waters, to assist him in controlling the bleeding problem. It was then that \u201cwe realized that we had a major bleeding problem.\u201d\nDr. Miller stated that he had no recollection of nurse Hawkes informing him at any time prior to 11:00 a.m. that Mrs. Harris\u2019 blood pressure was dropping or that her heart rate was going up. Then, at approximately 11:10 a.m. both Dr. Miller and Dr. Waters were still operating on Mrs. Harris\u2019 back when nurse Hawkes informed them that Mrs. Harris\u2019 blood pressure and pulse had rapidly dropped to extremely low levels. The two surgeons then abandoned the efforts to control the bleeding and closed the incision in Mrs. Harris\u2019 back. Mrs. Harris was then transferred to another bed and placed on her back so the surgeons could begin resuscitation efforts.\nDr. Miller attributed the low pulse and blood pressure to massive unexplained and unaccounted bleeding. Thinking blood may have been entering the abdomen, Dr. Miller consulted with Dr. Coleman, a general surgeon with a sub-specialty in vascular surgery. Dr. Coleman used a needle to inspect the abdomen for blood and found none. Dr. Coleman then made an incision in the abdomen to examine for blood, again finding none..\nDr. Coleman examined the aorta and indicated that it was flaccid, that the heart was not pumping at a high volume. Dr. Coleman clamped the aorta so blood would not go to the legs, causing the blood pressure to increase. Dr. Coleman closed the incision after the blood pressure returned.\nAt approximately 1:30 p.m., Mrs. Harris was taken from the operating room to the intensive care unit. Mrs. Harris\u2019 condition was still unstable at that time, with a pulse of 110 and a systolic blood pressure of 40. Dr. Miller explained this move was made because the intensive care unit is better equipped for the long-term treatment and monitoring of a patient.\nPlaintiff introduced the testimony of an expert in nurse anesthesia care. The trial court, however, would not allow this expert to testify that under the circumstances nurse Hawkes needed supervision in determining that a problem existed and in stabilizing Mrs. Harris\u2019 condition. Based on a voir dire examination, the expert would have also testified that it was Dr. Miller\u2019s responsibility to provide necessary supervision. During cross-examination of plaintiff\u2019s experts in anesthesiology, defendant elicited testimony regarding the training and competency of certified registered nurse anesthetists.\nQ. Would you explain to the jury, please, what a certified registered nurse anesthetist is?\nA. A certified registered nurse anesthetist is \u2014has to first be an R.N. You have to be a registered nurse. Then have to have had certain experience. Just an ordinary nurse who works in a nursing home or on a surgical floor, for instance, does not qualify to go to anesthesia school.\nIn 1981 \u2014sorry\u2014I keep going back to that. [The] nurse has to have certain experiences . . . primarily in the arena of critical care. They have to have had some experience in taking care of critically ill people before they are admitted to nursing anesthesia school.\nThe amount of nurse anesthesia school is two years continuous education and at the conclusion of which these student nurse anesthetistfs] are then given [an] examination and if they pass [it], then that certifies them to be a certified registered nurse anesthetist.\nQ. [W]ould it be fair to say that in North Carolina, probably most people who are put to sleep are directly put to sleep by a certified registered nurse anesthetist rather than by an anesthesiologist?\nA. That\u2019s correct.\nQ. The quality of care rendered by a certified registered nurse anesthetist is high, is it not?\nA. Generally.\nQ. In fact, didn\u2019t you say in the jury\u2019s absence that you think that the standards of care for [an] anesthesiologist and a nurse anesthetist are exactly the same.\nA. I do.\nQ. And that\u2019s because their competency in terms of performing the actual tasks of anesthesia are comparable, are they not?\nA. As a general rule, yes.\nQ. There is no question in your mind, is there, doctor, that nurse anesthetists are experts in the delivery of anesthesia?\nA. No doubt.\nRegarding the issue of Dr. Miller\u2019s own negligence, the testimony relevant to this appeal pertained to Dr. Miller\u2019s attempts to control Mrs. Harris\u2019 bleeding during the operation. At one point in the operation Dr. Miller used a substance known as Surgicel to stop the bleeding. It was at this point that Dr. Miller called Dr. Waters into the operating room for assistance. After approximately twenty minutes, Dr. Miller removed the Surgicel thinking the bleeding should have stopped by that time. He found the bleeding had not stopped. Dr. Miller and Dr. Waters then consulted the product literature for Surgicel, provided by the manufacturer, and determined it should not be left in the patient upon completion of a laminectomy because it tends to swell upon contact with body fluids and could potentially put pressure on nerves and cause paralysis. Rather than replace the Surgicel, the surgeons attempted to temporarily control the bleeding by direct pressure while they looked for the sources of the blood.\nPlaintiff offered during his case in chief the deposition of an expert in orthopedic surgery from Columbia, Missouri. This expert stated that there exists a generally recognized national standard of care for orthopedic surgeons. He further stated that Dr. Miller deviated from the applicable standard of care in his attempts to control Mrs. Harris\u2019 bleeding during the operation. Specifically, he contended the Surgicel substance should have been left in place to stop the bleeding, or at least once it was removed and Dr. Miller could see the bleeding had not stopped he should have replaced the Surgicel. The failure to replace the Surgicel made \u201ca very bad situation into an irretrievable one,\u201d and caused hypovolemic shock which resulted in brain damage.\nDefendant offered the testimony of an expert in orthopedic surgery who testified that he was familiar with the standard of care as it existed in June of 1981 for communities similar to Beaufort County. He further testified that Dr. Miller did not depart from the applicable standard of care, that Dr. Miller did everything orthopedic surgeons are taught to do to control bleeding, and that it was appropriate for Dr. Miller to remove the Surgicel when he did.\nPlaintiff sought to introduce in rebuttal the deposition of another orthopedic surgeon who stated that he practices medicine in Wilson, North Carolina. He and Dr. Miller both belong to the Eastern North Carolina Orthopedic Association which consists of approximately thirty-four orthopedic surgeons from a number of towns in eastern North Carolina. After initially stating that he does not generally use Surgicel in back operations because of potential complications, he stated in pertinent part:\nQ All right, and it was the duty of the surgeon to contain the bleeding?\nA That is correct.\nQ All right, it would be a departure from the standard of care for the surgeon not to bring this bleeding under control and end the procedure, isn\u2019t that correct?\nA That is correct.\nQ Even if it required the use of Surgicel to do that, it should be done, isn\u2019t that correct, Doctor?\nA I think that Surgicel was probably the only thing that was stopping the bleeding. And if \u2014 at this point probably Surgicel would be used.\nQ Even though there may be certain risks that Surgicel may have on nerve roots, when you balance that against what can happen with the blood loss, it would be better to leave the Surgicel in, isn\u2019t that correct, Doctor?\nA I \u2014I think so.\nThe trial court excluded this testimony upon concluding it was similar to other evidence offered during plaintiff\u2019s case in chief on the issue of whether Dr. Miller breached the applicable standard of care and was not, therefore, rebuttal evidence.\nThe dispositive issues are: (I) whether the trial court erred in granting a directed verdict for defendant at the close of plaintiff\u2019s evidence in that plaintiff presented sufficient evidence of an agency relationship between Dr. Miller and nurse Hawkes to submit to the jury the issue of Dr. Miller\u2019s vicarious liability based on the doctrine of respondeat superior-, (II) whether in the absence of an agency relationship, there was sufficient evidence of apparent agency to submit the issue of vicarious liability to the jury; (III) whether the trial court erred in excluding portions of the testimony of plaintiff\u2019s expert in nurse anesthetist care; and (IV) whether the trial court erred in excluding the deposition testimony of an orthopedic surgeon offered by plaintiff as rebuttal evidence.\nI\nPlaintiff first argues the trial court erred in directing a verdict in defendant\u2019s favor, at the close of plaintiff\u2019s evidence, on the issue of Dr. Miller\u2019s vicarious liability.\nA defendant\u2019s motion for a directed verdict is a test of whether the evidence is legally sufficient to submit the case to the jury and to support a verdict for plaintiff. Shreve v. Duke Power Co., 97 N.C. App. 648, 649, 389 S.E.2d 444, 445, disc. rev. denied, 326 N.C. 598, 393 S.E.2d 883 (1990). In deciding a motion for a directed verdict, the trial court must consider the evidence in the light most favorable to the nonmoving party. Watkins v. Hellings, 321 N.C. 78, 361 S.E.2d 568 (1987). A directed verdict may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the nonmovant. Id. In the present case we determine whether the evidence, considered in a light most favorable to plaintiff, was sufficient to submit to the jury the issue of vicarious liability.\nThe doctrine of respondeat superior provides that the employer is liable for the negligence of his employee occurring while the employee is acting within the scope of his employment. Thomas v. Poole, 45 N.C. App. 260, 264, 262 S.E.2d 854, 856 (1980). Liability based on the doctrine of respondeat superior is established by proving the following facts: \u201c(1) an injury by the negligence of the wrongdoer, (2) the relationship of employer-employee between the party to be charged and the wrongdoer, (3) a wrong perpetrated in the course of employment or within the employee\u2019s scope of authority, and (4) an employee going about the business of his superior at the time of the injury.\u201d White v. Hardy, 678 F.2d 485, 487 (4th cir. 1982).\nIt is undisputed in this case that nurse Hawkes was employed by Beaufort County Hospital, and that he negligently caused injury to Mrs. Harris while acting in the course and scope of his employment. Plaintiff argues further, however, that nurse Hawkes was a \u201clent servant\u201d acting under the immediate control, power and supervision of Dr. Miller and that there was, therefore, a relationship of employer-employee between Dr. Miller and nurse Hawkes.\nWe reject any argument that an operating surgeon is the so-called \u201ccaptain of the ship\u201d such that all personnel in the operating room are unquestionably deemed to be the surgeon\u2019s employees. Note, Texas Labels Captain of the Ship Doctrine: \u201cFalse Rule of Agency,\u201d 14 Wake L. Rev. 319 (1978) (explaining and criticizing captain of the ship doctrine). The \u201cvital test\u201d of whether the surgeon is an employer of those in the operating room is whether the surgeon has the right to control the operating room personnel. Hayes v. Elon College, 224 N.C. 11, 15, 29 S.E.2d 137, 139-40 (1944) (setting forth eight factors which are, among others, useful in determining whether a right of control exists). Regarding the employer-employee relationship in the context of lent servants, our Supreme Court has quoted with approval the language used by the Supreme Court of Pennsylvania.\n\u201c1. One who is in the general employ of another may, with respect to certain work, be transferred to the service of a third person in such a way that he becomes, for the time being and in the particular service which he is engaged to perform, an employe of that person, (citations)\n\u201c2. The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter\u2019s right of control with regard not only to the work to be done but also to the manner of performing it. (citations)\n\u201c3. A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not. (citations)\nWeaver v. Bennet, 259 N.C. 16, 28, 129 S.E.2d 610, 618 (1963) (quoting Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953)). The question before us thus becomes whether plaintiff presented sufficient evidence that Dr. Miller possessed the right to control the work done by nurse Hawkes and also the manner in which nurse Hawkes performed his work.\nPlaintiff first contends such evidence was offered in the form of the hospital\u2019s policy manual which provides that \u201ca nurse anesthetist [works] under the responsibility and supervision of the surgeon doing the case.\u201d Plaintiff argues that the case of Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589 (1952), stands for the proposition that a nurse anesthetist employed by a hospital becomes the lent servant of the surgeon for the duration of the operation if the surgeon has the immediate power to supervise and control the nurse. In Jackson, an eight-year-old girl died after a tonsillectomy due to anesthesia complications. The girl\u2019s mother had requested that her family physician be engaged to administer the anesthesia for the operation. The surgeon rejected the request, stating he had someone to administer the anesthetic, a nurse Hanson, and that he would use that person. Jackson at 261, 72 S.E.2d at 591. See Jackson v. Sanitarium, 234 N.C. 222, 67 S.E.2d 57 (1951) (an earlier appeal of the same case). The surgeon then arranged for the assistance of nurse Hanson who was employed by the hospital. In line with the principles stated above, the Supreme Court held that the trial court erred in removing from the jury an issue of respondeat superior because, under these circumstances, the surgeon had full power of control over nurse Hanson and that nurse Hanson was therefore a lent servant. Jackson at 261, 72 S.E.2d at 591.\nThe evidence relied upon by plaintiff in the present case, i.e., the hospital policy manual, gives the surgeon the power to supervise the nurse anesthetist during the operation. However, there is a distinction between the power to supervise and the power to control.\n[A] servant of one employer does not become the servant of another for whom the work is performed merely because the latter points out to the servant the work to be done, or supervises the performance thereof, or designates the place and time for such performance, or gives the servant signals calling him into activity, or gives him directions as to the details of the work and the manner of doing it ... .\nWeaver at 25, 129 S.E.2d at 616 (emphasis added) (citations omitted). See also 57 C.J.S. Master and Servant \u00a7 566 (1948). Therefore, it is not sufficient that the surgeon has the power to supervise, or even that he has the power to give directions as to the details and manner of doing the work. There must be evidence that the surgeon has the right to control the work and the manner of doing it. Weaver. The hospital policy manual standing alone does not constitute evidence of such control.\nWe also find Jackson factually distinguishable. Plaintiff in the present case offered no evidence that Dr. Miller personally selected nurse Hawkes as the anesthetist. In Jackson, the surgeon personally selected the anesthetist, rejecting the request of the patient\u2019s mother that her family physician administer the anesthesia. It is generally stated that inherent to the right to control is the right to select, and accordingly discharge, the alleged employee. 57 C.J.S. Master and Servant \u00a7 563(b) (1948) (\u201cit is indispensable that the right to select the person claimed to be a servant should exist\u201d).\nThis case is more analogous to the later case of Starnes v. Hospital Authority, 28 N.C. App. 418, 221 S.E.2d 733 (1976). In Starnes, plaintiff argued that a surgeon was vicariously liable for the negligence of a nurse anesthetist who caused burns to an infant during an operation. This Court rejected the argument where the record disclosed that the anesthetist was assigned by the hospital\u2019s anesthesiology department and the surgeon had no responsibility for the training or assignment of nurse anesthetists. Similarly, in this case there was no evidence that Dr. Miller had any responsibility for the assignment or training of nurse anesthetists.\nPlaintiff next argues that Mrs. Harris consented to surgery by \u201cDr. Miller and/or the assistants as may be selected by him,\u201d and that this consent confirms that Dr. Miller had control over nurse Hawkes during the operation. We reject this argument. The consent form does not constitute evidence that Dr. Miller had the right to control the work and the manner of performing the work of nurse Hawkes.\nFinally, plaintiff argues that six witnesses, including Dr. Miller himself, testified that the surgeon has the ultimate responsibility for the quality of care given a patient. It is unclear whether this \u201cultimate responsibility\u201d results from a medical code of ethics, a hospital disciplinary code, or some other policy within the medical profession. In any event, we are unpersuaded that this conclusory testimony should be accepted as a competent legal conclusion on the part of the medical profession that a surgeon is vicariously liable for any and all negligence which occurs in the course of care given a patient. The fact that under some statement of policy a surgeon bears the \u201cultimate responsibility\u201d of care is not evidence that the surgeon has the right to control the manner in which all those involved in rendering care to the patient do their jobs.\nFurthermore, it was established through plaintiff\u2019s own experts in this case that nurse anesthetists are highly trained and highly skilled. There was testimony that the standard of care for a nurse anesthetist is the same as that for an anesthesiologist, and that nurse anesthetists are experts in the delivery of anesthesia. This evidence is indicative that the surgeon and anesthetist work as a team, each with his own area of expertise, to achieve as a common end the successful completion of the surgery. It is reasonable that the surgeon would have a supervisory obligation to effect that end, but, at least in this case, there is no evidence that the surgeon had the right to control the manner in which the anesthetist administered the anesthesia or performed the related functions of his job as set out by hospital policy.\nTherefore, nurse Hawkes was not, on this evidence, Dr. Miller\u2019s employee under the doctrine of respondeat superior.\nII\nPlaintiff next argues that in the absence of an employer-employee relationship, Dr. Miller is vicariously liable under the principle of apparent agency in that he held out to Mrs. Harris, via the consent form, that he had the right to control nurse Hawkes during the course of the surgery. Plaintiff correctly states that a principal who represents to a third party that another is his agent is liable for harm caused the third party by the apparent agent if the third party justifiably relied upon the principal\u2019s representation. See Restatement (second) of Agency \u00a7 267 (1958). However, we reject plaintiff\u2019s argument for two reasons.\nFirst, the consent form referred to by plaintiff purports to be Beaufort County Hospital\u2019s consent form, not Dr. Miller\u2019s consent form. The form is signed by Mrs. Harris and witnessed by a hospital nurse. The form itself does not show that Dr. Miller personally made any representations to Mrs. Harris.\nSecond, the consent form is entitled \u201cSPECIAL CONSENT TO Operation, Anesthesia or Other Procedure.\u201d The form first authorizes Dr. Miller to perform the operation. In pertinent part, the form goes on to provide:\nI further authorize and request that the above-named physician and/or his assistants perform such procedures as are, in his professional judgment, necessary and desirable. I consent to the administration of such anesthetics as may be considered necessary or advisable by the physician responsible for this service.\nBy the language of the consent form, Mrs. Harris authorized the \u201cabove-named physician,\u201d i.e., Dr. Miller, to perform such other procedures as he deemed necessary. The second sentence above represents a second, independent consent to the administration of anesthetics \u201cby the physician responsible for this service.\u201d This consent is a separate authorization allowing another physician, not Dr. Miller nor even an assistant selected by him, to administer the anesthesia. Thus, the consent form contains no evidence that Dr. Miller represented to Mrs. Harris that he would employ or control the one administering the anesthesia.\nAccordingly, nurse Hawkes was not, on this evidence, Dr. Miller\u2019s apparent agent, and directed verdict on this issue was not error.\nIll\nPlaintiff next argues the trial court erred by excluding the expert testimony of a nurse anesthetist. Had the nurse been allowed to testify she would have testified to the instructions and supervision a surgeon should give an anesthetist during a medical crisis.\nWe agree with plaintiff that a witness may be deemed an expert for purposes of giving opinion testimony in fields other than his or her own area of a profession. White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203 (1988) (obstetrician-gynecologist competent to testify as to referral practices of pediatrician); Lowery v. Newton, 52 N.C. App. 234, 278 S.E.2d 566, disc. rev. denied, 303 N.C. 711 (1981) (general/plastic surgeon competent to testify to standard of care of neurosurgeon); Haney v. Alexander, 71 N.C. App. 731, 323 S.E.2d 430 (1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985) (physicians competent to testify to standard of care for nurses). Accordingly, situations may exist where a nurse is competent to testify to the standard of care for a physician. However, the applicable statute provides:\nIn 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.\nN.C.G.S. \u00a7 90-21.12 (1990).\nIn the present case, the witness testified that she was \u201cfamiliar with the standards of care relating to anesthesia practice for certified registered nurse anesthetists in North Carolina.\u201d She was accepted by the trial court as an expert in nurse anesthetist care. However, the record does not reflect that plaintiff elicited from this witness that she was familiar with the standards of practice for orthopedic surgeons \u201cwith same or similar training and experience situated in the same or similar communities . . . .\u201d Id. Therefore, the exclusion of the anesthetist expert\u2019s testimony regarding any action or directions or supervision a surgeon should give during a medical crisis is not error. See York v. Northern Hospital District, 88 N.C. App. 183, 362 S.E.2d 859 (1987), disc. rev. denied, 322 N.C. 116, 367 S.E.2d 922 (1988) (no error in excluding nurse\u2019s testimony as to the standard of care required of a surgeon or anesthesiologist where there was no foundation that nurse was familiar with those standards).\nIV\nPlaintiff\u2019s final argument is that the trial court erred in excluding as rebuttal evidence the deposition of an expert in orthopedic surgery stating that he practiced in eastern North Carolina and that Dr. Miller deviated from the standard practices of orthopedic surgeons in eastern North Carolina and communities similar to Beaufort County. The trial court excluded the evidence upon concluding it was similar to other evidence offered during plaintiff\u2019s case in chief on the issue of whether Dr. Miller breached the applicable standard of care and was not, therefore, rebuttal evidence.\nThe general rule is that it is in the discretion of the trial judge whether to allow additional evidence by a party after that party has rested or whether to allow additional evidence after the close of the evidence. Castle v. B. H. Yates Co., 18 N.C. App. 632, 634, 197 S.E.2d 611, 613 (1973). Rebuttal is not generally intended as an opportunity for plaintiff to present his case again. \u201c[T]he usual rule will exclude all evidence which has not been made necessary by the opponent\u2019s case in reply.\u201d Wigmore, Wigmore on Evidence \u00a7 1873 (1976). Thus, plaintiffs case in rebuttal does not consist of witnesses who merely support his complaint, \u201cbut is confined to testimony which is directed to refuting the evidence of the defendant, unless the court in its discretion permits him to depart from the regular order of proof.\u201d McCormick, McCormick on Evidence \u00a7 4 (3d ed. 1984).\nN.C.G.S. \u00a7 90-21.12 establishes a method for ascertaining the standard of care which is to be determined in accordance with \u201cthe standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities. . . .\u201d The standard of care may vary from community to community depending upon the practices of health care providers in that community. Conflicts in the evidence as to the standard of care for a particular community are resolved by the jury.\nOn the question of the applicable standard of care, plaintiff in his case in chief presented the deposition testimony of Dr. Gaines, an orthopedic surgeon who was not directly familiar with the standard of practice in Beaufort County. However, he was no less competent to testify as to the applicable standard of practice because of his foundation, testimony that in his opinion there is a national standard of practice for orthopedic surgeons and that he was familiar with the national standard. See Haney v. Alexander, 71 N.C. App. 731, 736, 323 S.E.2d 430, 434 (1984) (where standard is same across the country, expert familiar with standard may testify despite no familiarity with defendant\u2019s community). Plaintiff\u2019s witness was, in effect, familiar with the standard of practice in Beaufort County and similar counties because he was familiar with the national standard of practice. Dr. Gaines\u2019 deposition proceeds to assert that Dr. Miller deviated from the standard of practice in several ways, the most specific of which was Dr. Miller\u2019s decision to remove the Surgicel used to control bleeding during the operation.\nDefendant presented the testimony of Dr. Hamilton, an orthopedic surgeon who established as a foundation for his testimony that he was familiar with the standard of practice in Beaufort County and similar communities. He stated that Dr. Miller did not deviate from standard of practice, and particularly, that Dr. Miller acted appropriately by removing the Surgicel.\nPlaintiff\u2019s proposed rebuttal was a deposition of another orthopedic surgeon who practices in a community near Beaufort County and who laid a foundation for his testimony by establishing, at least inferentially, that he was familiar with the standard practices of orthopedic surgeons in communities similar to Beaufort County. The deposition states that Dr. Miller deviated from standard practice by removing the Surgicel.\nThe only significant difference between the deposition offered during plaintiffs case in chief and the deposition plaintiff sought to introduce as rebuttal is the foundation evidence which enables each surgeon to testify under N.C.G.S. \u00a7 90-21.12, i.e., that he is familiar with the standard practices for orthopedic surgeons in the same or similar communities. The substantive evidence, i.e., what the standard practice is in such communities, is the same in both depositions. We therefore find no abuse of discretion in the trial court\u2019s exclusion of this evidence on the basis that it is cumulative to the evidence offered by plaintiff in his case in chief and is not rebuttal.\nNo error.\nJudge ORR concurs.\nJudge PHILLIPS dissents with separate opinion.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Phillips\ndissenting.\nIn my opinion the trial court erred in directing a verdict for the defendant on the agency issue, as the evidence presented was sufficient to indicate that Dr. Miller had the right to control the work of Nurse Hawkes during the operation and the manner in which he did it. In brushing aside the testimony of several doctors, including Dr. Miller himself, that defendant had the ultimate responsibility for the proper treatment of the patient during surgery, the majority incorrectly indicates that the testimony was without legal or probative effect and that the source of that responsibility is unclear and may result from some ineffective medical or hospital code. As the evidence plainly indicates, it seems to me, the surgeon\u2019s ultimate responsibility for those who assist in the surgery results from the physician-patient relationship, the nature of the services undertaken, and the realities of the operating room, where the only alternative to a coordinated team effort under the control of the surgeon is for the assistants to do as they see fit, which is a folly that no sensible patient not in extremis would ever knowingly submit to and that no conscientious surgeon would ever permit.\nAnd in my view it was prejudicial error to exclude the expert testimony of Nurse Anesthetist Privatte as to the things that a nurse anesthetist can and cannot properly do during a medical crisis without instructions from the surgeon and as to the instructions that surgeons give in such situations. Though not a surgeon, she had assisted surgeons in thousands of operations and was eminently qualified to give the testimony, which could have made a difference in the case, and what members of a trade or profession ordinarily do in certain situations is evidence of what should be done in those situations, though not phrased in the jargon of approved standards.", "type": "dissent", "author": "Judge Phillips" } ], "attorneys": [ "Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by Adam Stein and James E. Ferguson, II, for plaintiff-appellant.", "LeBoeuf, Lamb, Leiby & MacRae, by George R. Ragsdale, Sherry C. McConnell, and Kurt E. Lindquist, II, for defendant-appellee." ], "corrections": "", "head_matter": "HAYWOOD HARRIS, in his capacity as Administrator of the Estate of ETTA HARRIS v. GEORGE J. MILLER, M.D.\nNo. 902SC336\n(Filed 2 July 1991)\n1. Physicians, Surgeons, and Allied Professions \u00a7 11 (NCI3d) \u2014 negligence of nurse anesthetist \u2014respondeat superior \u2014surgeon not liable\nA directed verdict was properly granted for a surgeon on the issue of vicarious liability in a malpractice action where it was undisputed that the nurse anesthetist negligently caused the injury and that the nurse anesthetist was employed by the hospital. The captain of the ship doctrine under which all personnel in the operating room are unquestionably deemed to be the surgeon\u2019s employees is rejected; the test is whether the surgeon has the right to control the operating room personnel, and there is a distinction between the power to supervise and the power to control.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 287-289.\nLiability of operating surgeon for negligence of nurse assisting him. 12 ALR3d 1017.\n2. Physicians, Surgeons, and Allied Professions \u00a7 11 (NCI3d) \u2014 negligence of nurse anesthetist \u2014liability of surgeon \u2014insufficient evidence\nThe trial court properly granted a directed verdict for defendant surgeon in an action arising from the undisputed negligence of a nurse anesthetist where the hospital policy manual, which gave the surgeon the power to supervise the nurse anesthetist during the operation, was insufficient to show that the surgeon had the right to control the anesthetist\u2019s work; plaintiff offered no evidence that the surgeon personally selected the nurse anesthetist; there was no evidence that the surgeon had any responsibility for the assignment or training of nurse anesthetists; the consent form, by which the patient consented to surgery by \u201cDr. Miller and/or the assistants as may be selected by him\u201d does not constitute evidence that the surgeon had the right to control the work and the manner of performing the work of the anesthetist; the testimony of six witnesses, including defendant, that the surgeon has the ultimate responsibility for the quality of care given a patient is not evidence that the surgeon has the right to control the manner in which all those involved in rendering care to the patient do their jobs; and it was established through plaintiff\u2019s own experts that nurse anesthetists are highly trained and skilled. While it is reasonable that the surgeon would have a supervisory obligation, there is no evidence that the surgeon would have the right to control the manner in which the anesthetist administered the anesthesia or performed the related functions of his job.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 287-289.\nLiability of operating surgeon for negligence of nurse assisting him. 12 ALR3d 1017.\n3. Physicians, Surgeons, and Allied Professions \u00a7 11 (NCI3d) \u2014 negligence of nurse anesthetist \u2014 liability of surgeon \u2014 apparent agency\nA directed verdict was properly granted for a surgeon on the issue of apparent agency in a malpractice action in which it was undisputed that the nurse anesthetist was negligent. The consent form relied on by plaintiff was the hospital\u2019s consent form, not the surgeon\u2019s, it was witnessed by a hospital nurse and does not show that the surgeon personally made any representations to the patient, and the second sentence authorizing anesthetics is a separate authorization allowing another physician, not the surgeon or even an assistant selected by him, to administer the anesthesia. The consent form contains no evidence that the surgeon represented to the patient that he would employ or control the person administering the anesthesia.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7 182.\n4. Physicians, Surgeons, and Allied Professions \u00a7 15.2 (NCI3d) \u2014 negligence of nurse anesthetist \u2014 liability of surgeon \u2014 expert testimony \u2014nurse anesthetist \u2014excluded\nThe trial court did not err in a medical malpractice action by excluding the expert testimony of a nurse anesthetist concerning the instructions and supervision a surgeon should give an anesthetist during a medical crisis where it was not disputed that the nurse anesthetist in this case was negligent, plaintiffs had settled with the nurse anesthetist and the hospital, and the action proceeded against the surgeon. The record does not reflect that plaintiff elicited from the witness that she was familiar with the standards of practice for orthopedic surgeons \u201cwith same or similar training and experience situated in the same or similar communities . . . .\u201d N.C.G.S. \u00a7 90-21.12.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 396; Physicians, Surgeons, and Other Healers \u00a7\u00a7 354, 356.\nMedical malpractice: necessity and sufficiency of showing of medical witness\u2019 familiarity with particular medical or surgical technique involved in suit. 46 ALR3d 275.\nMalpractice testimony: competency of physician or surgeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality. 37 ALR3d 420.\n5. Physicians, Surgeons, and Allied Professions \u00a7 15 (NCI3d) \u2014 medical malpractice deposition of expert \u2014 excluded\u2014cumxdative\nThe trial court did not abuse its discretion in a medical malpractice action by excluding the deposition of an expert in orthopedic surgery where the evidence was cumulative.\nAm Jur 2d, Evidence \u00a7 256.\nJudge Phillips dissenting.\nAPPEAL by writ of certiorari by plaintiff from judgment entered 5 January 1989 in MARTIN County Superior Court by Judge William C. Griffin, Jr. Heard in the Court of Appeals 28 November 1990.\nFerguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by Adam Stein and James E. Ferguson, II, for plaintiff-appellant.\nLeBoeuf, Lamb, Leiby & MacRae, by George R. Ragsdale, Sherry C. McConnell, and Kurt E. Lindquist, II, for defendant-appellee." }, "file_name": "0312-01", "first_page_order": 342, "last_page_order": 361 }