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  "name": "JOYCE BOWLIN, Plaintiff-Appellant v. DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, and ROY B. JONES, Defendant-Appellee",
  "name_abbreviation": "Bowlin v. Duke University",
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    "judges": [
      "Judges ARNOLD and LEWIS concur."
    ],
    "parties": [
      "JOYCE BOWLIN, Plaintiff-Appellant v. DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, and ROY B. JONES, Defendant-Appellee"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nWe note initially that the summary judgment below did not resolve all claims between all parties. Partial summary judgment is interlocutory and subject to dismissal. However, following our Supreme Court\u2019s reasoning and holding in Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976) and its progeny, we conclude that plaintiff had a substantial right to have all her claims tried at the same time before the same judge and jury. We therefore will determine plaintiff\u2019s appeal on its merits.\nPlaintiff sets forth four assignments of error for our review. First, plaintiff argues that the trial court erred in dismissing her first claim, in which she asserted that the doctrine of res ipsa loquitur should apply. Second, plaintiff contends partial summary judgment was improper because defendant Dr. Jones did not obtain her informed consent to the procedure. Third, plaintiff argues partial summary judgment was improper because defendant Dr. Jones\u2019 alleged misrepresentation of the status of Zachary Shpall, a fourth-year medical student, amounted to constructive fraud. Finally, plaintiff argues that the trial court erred in granting partial summary judgment because there was sufficient evidence of intentional misrepresentation on the part of defendant Dr. Jones. We find plaintiff\u2019s final assignment of error to be without merit, and we therefore do not address it.\n\u201cRes Ipsa\u201d Claim\nWe initially question whether it is acceptable practice under our Rules of Civil Procedure to \u201cplead\u201d the applicability of a rule of law or evidence as a separate claim for relief. Although in repealing N.C. Gen. Stat. \u00a7 1-122 requiring a complaint to state \u201cthe facts constituting a cause of action\u201d the legislature has adopted the more liberal concept of \u201cnotice pleading,\u201d the clear import of Rule 8(a), is to retain the idea of factual pleading; that is, to set forth those essential facts required to give adequate \u201cnotice\u201d for preparation by the opponent. N.C. Gen. Stat. \u00a7 1-122 (repealed 1 January 1970). See generally Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970) (citing an explanation of the New York rules on notice pleading, the source of the North Carolina rules, providing guidance in interpretation of our Rule 8(a)). Furthermore, in testing the legal sufficiency of pleadings, using the Rule 12(b)(6) motion, well-pleaded material allegations of fact are taken as admitted, but conclusions of law or unwarranted deductions of fact are not admitted. Id. Taken together, it appears that Rules 12(b)(6) and 8(a) suggest pleadings should be limited to those facts or descriptions of \u201ctransactions, occurrences, or series of transactions or occurrences, intended to be proved.\u201d North Carolina Rules of Civil Procedure, Rule 8(a). Nevertheless, we address plaintiffs res ipsa loquitur claim on its merits.\nRes ipsa loquitur is a doctrine addressed to those situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of defendant. It is applicable when no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of defendant, and the injury is of a type that would not normally occur in the absence of negligence. Grigg v. Lester, 102 N.C. App. 332, 401 S.E.2d 657, cert. denied, 329 N.C. 788, 408 S.E.2d 520 (1991); See Brandis on North Carolina Evidence, 227 (3rd ed. 1988).\nIn this case, there was conflicting expert testimony as to the cause of plaintiff\u2019s injury. We, therefore, cannot find the injury to be one that ordinarily would not occur except for some negligent act or omission. Furthermore, \u201cres ipsa loquitur is based upon common knowledge and experience\u201d generally known to laymen. Grigg, supra. It is our opinion that injury to the sciatic nerve during a bone marrow harvest procedure is peculiarly the subject of expert opinion, and a layman would have no basis for concluding that defendant was negligent in extracting the marrow. This Court has consistently reaffirmed that res ipsa loquitur is inappropriate in the usual medical malpractice case, where the question of injury and the facts in evidence are peculiarly in the province of expert opinion. Grigg, supra. See also Elliot v. Owen, 99 N.C. App. 465, 393 S.E.2d 347 (1990). We therefore affirm the trial court\u2019s ruling.\nInformed Consent Clatm\nSecond, plaintiff argues that defendant Dr. Jones did not obtain her informed consent to the bone marrow harvest procedure. Specifically, plaintiff alleged that Dr. Jones misrepresented the status of his assistant, Zachary Shpall, to plaintiff before she underwent the procedure. This misrepresentation, plaintiff asserts, violated N.C. Gen. Stat. \u00a7 90-21.13, requiring a physician to obtain consent from the patient \u201cin 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[.]\u201d N.C. Gen. Stat. \u00a7 90-21.13(a)(1).\nThe forecast of evidence presented at trial does not support this contention. We first note that defendants\u2019 forecast of evidence included expert testimony that the use of medical students in providing health care is standard practice in teaching hospitals. Second, we note that plaintiff acknowledged that she signed a consent form which included a statement that she agreed medical students could assist in providing her care, both specifically and by acknowledging the fact that Duke University Medical Center is a teaching institution. The pertinent \u201cconsent\u201d language in the form plaintiff signed was as follows:\nTeaching Institution\nI understand that Duke University Medical Center is a teaching institution, and I agree that students training to be physicians, nurses, [and] allied health personnel may assist in providing my care and that my medical records may be used for purposes of research, education, and patient care.\nIt appears that plaintiff contends defendant Dr. Jones should have informed her of any health care provider who would assist him in the bone marrow harvest procedure and their levels of expertise. There is, however, no statutory or common law duty for an attending surgeon to inform a patient of the particular qualifications of individuals who will be assisting, and the consent given by plaintiff defeats this argument. See generally Foard v. Jarman, 326 N.C. 24, 387 S.E.2d 162 (1990). We therefore hold that the trial court\u2019s granting summary judgment on the informed consent claim to be proper.\nConstructive Fraud Claim\nFinally, plaintiff argues that defendant Dr. Jones\u2019 failure to reveal Mr. Shpall\u2019s status as an unlicensed medical student amounts to constructive fraud. To sustain a cause of action for constructive fraud, plaintiff must allege facts and circumstances (1) which created a relationship of trust and confidence, and (2) which led up to and surrounded a transaction in which defendant allegedly took advantage of his position of trust to injure the plaintiff. Watts v. Cumberland County Hosp. System, 317 N.C. 110, 343 S.E.2d 879 (1986). The first prong of the test in Watts is easily satisfied if plaintiff alleges defendant Dr. Jones was her attending physician at Duke Medical Center. Our Court has consistently recognized the physician-patient relationship to be a fiduciary one, \u201cimposing upon the physician the duty of good faith and fair dealing.\u201d Id. See Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).\nWhile plaintiff has established a relationship of trust and confidence between defendant Dr. Jones and herself, we find that she has not alleged facts sufficient to show defendant Dr. Jones breached his fiduciary duty or took advantage of plaintiff\u2019s trust to her detriment. Again, there was no affirmative duty to inform the plaintiff of Mr. Shpall\u2019s status, and it is common practice for medical students at teaching hospitals to assist in medical procedures. As we have noted, informing the patient of each assistant\u2019s level of training or level of expertise is not an affirmative duty we will impose in such cases. Therefore, we find the forecast of evidence presented insufficient to support plaintiff\u2019s claim for constructive fraud.\nFor the reasons stated, we affirm the trial court\u2019s order granting partial summary judgment in favor of defendants.\nAffirmed.\nJudges ARNOLD and LEWIS concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Tharrington, Smith & Hargrove, hy Marcus W. Trathen; and Elizabeth F. Kuniholm, for plaintiff-appellant.",
      "Newsom, Graham, Hedrick, Bryson & Kennon, by E. C. Bryson, Jr. and Mark E. Anderson, for defendant-appellee Duke University.",
      "Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by William H. Moss and Samuel G. Thompson, for defendant-appellees Private Diagnostic Clinic and Roy B. Jones."
    ],
    "corrections": "",
    "head_matter": "JOYCE BOWLIN, Plaintiff-Appellant v. DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, and ROY B. JONES, Defendant-Appellee\nNo. 9110SC1195\n(Filed 1 December 1992)\n1. Pleadings \u00a7 2.1 (NCI3d)\u2014 applicability of rule of law or evidence \u2014pled as a separate claim for relief\nAlthough it appears that N.C.G.S. \u00a7 1A-1, Rules 12(b)(6) and 8(a) suggest that pleadings should be limited to those facts or descriptions of transactions, occurrences, or series of transactions or occurrences intended to be proved, plaintiff\u2019s res ipsa loquitur claim was considered on its merits.\nAm Jur 2d, Negligence \u00a7\u00a7 1983-2006, 2015; Pleadings \u00a7 104.\nModern trends as to pleading a particular cause of injury or act of negligence as waiving or barring the right to rely on res ipsa loquitur. 2 ALR3d 1335.\n2. Physicians, Surgeons, and Allied Professions \u00a7 16 (NCI3d) \u2014 res ipsa loquitur \u2014inappropriate to medical malpractice\nThe trial court did not err by dismissing plaintiff\u2019s res ipsa loquitur claim in a medical malpractice action where there was conflicting expert testimony as to the cause of plaintiff\u2019s injury and it could not be found that the injury was one that ordinarily would not occur except for some negligent act or omission. Furthermore, res ipsa loquitur is based upon common knowledge and experience generally known to laymen and the Court of Appeals has consistently reaffirmed that res ipsa loquitur is inappropriate in the usual medical malpractice case, where the question of injury and the facts in evidence are peculiarly in the province of expert opinion.\nAm Jur 2d, Negligence \u00a7\u00a7 2215, 2219, 2238; Physicians, Surgeons, and Other Healers \u00a7\u00a7 333, 335, 339.\nPhysicians and surgeons: res ipsa loquitur, or presumption or inference of negligence, in malpractice cases. 82 ALR2d 1262.\n3. Physicians, Surgeons, and Allied Professions \u00a7 17.1 (NCI3d) \u2014 malpractice \u2014 informed consent \u2014 use of medical student in surgery\nThe trial court did not err in a medical malpractice action by granting summary judgment for defendants on the informed consent claim where plaintiff contended that defendant Dr. Jones should have informed her of any health care providers who would assist in the bone marrow harvest procedure and their levels of expertise. Defendants\u2019 forecast of evidence included expert testimony that the use of medical students in providing health care is standard practice in teaching hospitals and plaintiff acknowledged that she signed a consent form which included a statement in which she agreed that medical students could assist\u2019 in providing her care, both specifically and by acknowledging the fact that Duke University Medical Center is a teaching institution. There is no statutory or common law duty for an attending physician to inform a patient of the particular qualifications of individuals who will be assisting.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 186-190, 194, 195.\n4. Physicians, Surgeons, and Allied Professions \u00a7 16.1 (NCI3d) \u2014 constructive fraud by physician \u2014use of medical student in surgery \u2014summary judgment for defendants\nThe evidence was insufficient in a medical malpractice action to support plaintiffs claim for constructive fraud based on her physician\u2019s failure to reveal the status of an unlicensed medical student assisting in surgery. While plaintiff established a relationship of trust and confidence between defendant Dr. Jones and herself, there was no affirmative duty to inform the plaintiff of the medical student\u2019s status and it is common practice for medical students at teaching hospitals to assist in medical procedures.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 190, 366.\nAppeal by plaintiff from judgment entered 17 July 1991 in Wake County Superior Court by Judge Knox V. Jenkins, Jr. Heard in the Court of Appeals 9 November 1992.\nPlaintiff instituted this medical malpractice action seeking to recover damages for personal injuries she allegedly sustained during a bone marrow harvest procedure at Duke University Medical Center on 6 October 1986. The forecast of evidence before the trial court reveals the following events and circumstances:\nPlaintiff was diagnosed as seriously ill with breast cancer in the spring of 1986. She had a radical mastectomy and then underwent chemotherapy, prior to coming to Duke Medical Center. Plaintiff\u2019s oncologist found she was at high risk for reoccurrence and referred her to Duke for a bone marrow harvest procedure. This procedure involves the extraction and preservation of bone marrow for later use by the patient if the cancer reoccurs.\nPlaintiff\u2019s bone marrow procedure was performed by defendant Dr. Roy B. Jones (hereinafter Dr. Jones), a partner at defendant Private Diagnostic Clinic (PDC) and assistant professor at Duke University Medical Center. Zachary Shpall, at that time a fourth-year medical student and enrolled in a subinternship in hematology/oncology, assisted with the procedure and actually performed the marrow extractions on one side of plaintiff\u2019s hip. Defendant Dr. Jones did not specifically inform plaintiff that a fourth-year medical student would be participating in her medical procedure.\nFollowing the procedure, plaintiff immediately noticed numbness and severe pain in her right buttock and posterior thigh. The medical records did not indicate that plaintiff complained about her discomfort in the immediate post-operative period. After plaintiff complained of severe pain to Dr. Jones, he arranged for plaintiff to see a neurologist for an evaluation of her condition.\nThere was a difference of medical opinion as to plaintiff\u2019s condition and its exact cause. Plaintiff\u2019s experts diagnosed her condition as partial neuropathy of the sciatic nerve caused by needle penetration during the harvest procedure. Defendants\u2019 experts found that plaintiff did not suffer any injury to her sciatic nerve as a result of the bone marrow harvest procedure. Instead, they determined plaintiff\u2019s injury was multi-factorial in cause, stemming from several pre-existing conditions.\nDefendants moved for summary judgment. After a three-day hearing on the motions and after reviewing the forecast of evidence with respect to each of plaintiff\u2019s claims, the trial court granted defendants\u2019 motions as to all of plaintiff\u2019s claims except her ordinary negligence claims. Plaintiff appeals from the trial court\u2019s order allowing partial summary judgment.\nTharrington, Smith & Hargrove, hy Marcus W. Trathen; and Elizabeth F. Kuniholm, for plaintiff-appellant.\nNewsom, Graham, Hedrick, Bryson & Kennon, by E. C. Bryson, Jr. and Mark E. Anderson, for defendant-appellee Duke University.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by William H. Moss and Samuel G. Thompson, for defendant-appellees Private Diagnostic Clinic and Roy B. Jones."
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