{ "id": 11914097, "name": "LISA ANN NOELL, Plaintiff v. RADOSLAV KOSANIN, VERNE C. LANIER, JR., VERNE C. LANIER, JR., M.D., F.A.C.S.-PLASTIC SURGERY CENTER, P.A. (formerly known as Lanier & Riefkohl Plastic Surgery Center, P.A.), DOE ONE, DOE TWO and DOE THREE, Defendants", "name_abbreviation": "Noell v. Kosanin", "decision_date": "1995-06-06", "docket_number": "No. 9414SC317", "first_page": "191", "last_page": "197", "citations": [ { "type": "official", "cite": "119 N.C. App. 191" } ], "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": "447 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536777, 2538986, 2536623, 2536600, 2536444 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0605-01", "/nc/336/0605-02", "/nc/336/0605-03", "/nc/336/0605-04", "/nc/336/0605-05" ] }, { "cite": "441 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527457 ], "year": 1994, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0248-01" ] }, { "cite": "324 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526633 ], "year": 1985, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0306-01" ] }, { "cite": "415 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "331 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498339 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0182-01" ] }, { "cite": "400 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527999 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0578-01" ] }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "712" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "year": 1989, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] } ], "analysis": { "cardinality": 657, "char_count": 14769, "ocr_confidence": 0.708, "pagerank": { "raw": 7.660210504331264e-08, "percentile": 0.45205087246399306 }, "sha256": "9b0e0d86ab93575789c7d0c3e4d719341bd9fb1fc6edf243f058a75dd0955c73", "simhash": "1:97aefa341e33509e", "word_count": 2332 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, JOHN C. concur." ], "parties": [ "LISA ANN NOELL, Plaintiff v. RADOSLAV KOSANIN, VERNE C. LANIER, JR., VERNE C. LANIER, JR., M.D., F.A.C.S.\u2014PLASTIC SURGERY CENTER, P.A. (formerly known as Lanier & Riefkohl Plastic Surgery Center, P.A.), DOE ONE, DOE TWO and DOE THREE, Defendants" ], "opinions": [ { "text": "WALKER, Judge.\nOn 24 August 1990, plaintiff was admitted to Lanier & Riefkohl Plastic Surgery Center, P.A., now known as Verne C. Lanier, M.D., F.A.C.S. \u2014 Plastic Surgery Center, P.A. (the Plastic Surgery Center), for secondary open rhinoplasty and removal and replacement of a chin implant. Defendant Verne C. Lanier, Jr., a plastic surgeon, performed the surgery. Defendant Radoslav Kosanin, an anesthesiologist, administered anesthesia services to plaintiff.\nAt approximately 8:30 a.m., plaintiff was marked for surgery by Dr. Lanier and placed under general anesthesia by Dr. Kosanin. Plaintiff was then prepared for surgery by Dr. Kosanin and other operating room personnel. Surgery was completed at approximately 11:00 a.m., and plaintiff was taken to the recovery room. Upon awakening from surgery, plaintiff complained of a severe pain in her right eye. At approximately 5:30 p.m., Dr. Lanier came to the recovery room to examine plaintiffs stitches, and plaintiff informed him of this pain. Plaintiff was discharged at approximately 6:00 p.m. but continued to have pain in her right eye.\nThe next morning, plaintiff called Dr. Lanier and informed him that she was still experiencing severe pain in her right eye. Dr. Lanier arranged for plaintiff to be examined by Dr. J. Stuart McCracken, an ophthalmologist. Dr. McCracken examined plaintiff that morning and determined that plaintiffs right cornea had \u201can approximate 40 percent central erosion or defect of the surface epithelium.\u201d The pain persisted, and plaintiff saw Dr. McCracken daily from 26 August to 30 August. Dr. McCracken diagnosed plaintiffs eye injury as \u201can epithelial erosion secondary to drying out of the epithelial surface during her surgical procedure.\u201d After that time plaintiff continued to experience periodic episodes of recurrent erosion syndrome which became less frequent but still occurred several times a month.\nOn 22 May 1992 plaintiff filed suit, alleging that Drs. Kosanin and Lanier were negligent in failing to properly tape her eyes shut prior to surgery, which negligence proximately caused her injuries and damages. Plaintiff also alleged that Drs. Kosanin and Lanier were negligent under the doctrine of res ipsa loquitur. Defendants answered denying negligence and subsequently moved for summary judgment. Summary judgment was granted in favor of all defendants.\nWe first address plaintiffs argument that summary judgment was improvidently granted in favor of Dr. Kosanin. In order to maintain an action for medical malpractice, a plaintiff must offer evidence to establish (1) the applicable standard of care; (2) breach of that standard; (3) proximate cause; and (4) damages. Turner v. Duke University, 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989). Causation is an inference of fact to be drawn from other facts and circumstances. Id.\nIn support of his motion for summary judgment, Dr. Kosanin presented the affidavit of Dr. Lloyd F. Redick, a board certified anesthesiologist. After reviewing plaintiffs medical records and the depositions of Drs. Kosanin and McCracken, Dr. Redick expressed the opinion that Dr. Kosanin\u2019s anesthetic management of plaintiff conformed to the applicable standard of practice of physicians with Dr. Kosanin\u2019s training and experience practicing anesthesiology in Durham in 1990. Dr. Redick further opined that the corneal abrasion plaintiff experienced could occur in the absence of any medical negligence.\nDr. Kosanin contends that this evidence demonstrates the lack of essential elements of plaintiff\u2019s claim (breach and proximate cause) and that plaintiff is now required to come forward with expert medical testimony showing genuine issues for trial on these elements. In support of this argument, Dr. Kosanin cites Mozingo v. Pitt County Memorial Hospital, 101 N.C. App. 578, 400 S.E.2d 747 (1991), aff\u2019d, 331 N.C. 182, 415 S.E.2d 341 (1992). Dr. Kosanin apparently construes the language of Mozingo to require expert testimony at the summary judgment stage to show breach of the standard of care and proximate cause. However, after carefully reviewing Mozingo, we find no such requirement therein.\nPlaintiff argues that her forecast of the evidence establishes issues of fact as to whether Dr. Kosanin negligently provided anesthesia services to her and whether this negligence proximately caused her eye injury. In support of her negligence claim, plaintiff offered the affidavit of her mother, Evelyn Glover Noell, who stated:\nAt [Lisa\u2019s follow-up] visit Dr. Lanier informed us that he and Dr. Kosanin had discussed the possible causes for Lisa\u2019s injury and that they had concluded the most likely cause was that Lisa\u2019s eye was improperly taped during surgery.\nPlaintiff also offered her own deposition testimony, in which she made a similar statement:\nMeanwhile, in the middle of the week, Dr. Lanier called and . .. said that he had spoken with Dr. Kosanin about what had happened. And the only thing they could figure out was that my eye had not been taped properly during the surgery and because of whatever procedures were done, the eye had been cut either by the oxygen in the room or the air or something... contributing to the two-and-a-half hours that I was on the table.\nPlaintiff testified in her deposition that Dr. Kosanin called her on Monday after the operation and told her,\n\u201cVerne and I have talked about it.\u201d And he said, \u201cWe just feel that your eye was not taped properly.\u201d And he said, \u201cAnd I believe that\u2019s what caused your eye to be cut.\u201d\nShe also testified that when Dr. Lanier was removing the stitches from her nose, he told her,\n\u201c. . . I really believe that your eye was not taped properly.\u201d He said, \u201cThat\u2019s the only thing we can figure out that happened.\u201d And he said, \u201cIt\u2019s unfortunate, but once in a while these things happen in surgery, and there is nothing really that you can say except I\u2019m sorry.\u201d\nPlaintiff further offered Dr. Kosanin\u2019s response to plaintiff\u2019s request for admissions in which he stated:\nIt is admitted that the standard of care for preparation of a patient prior to a secondary open rhinoplasty and removal and replacement of a chin implant procedure under general anesthesia requires that the patient\u2019s eyes be taped shut to prevent drying of the eye during surgery.\nFinally, plaintiff offered the following deposition testimony of Dr. Kosanin:\nQ. And that is, again, the standard of care ... to tape the eyes closed?\nA. Yes.\nQ. And if the eyes are not properly taped closed, would that be negligence?\nA. It should not \u2014 yes, that\u2019s correct.\nPlaintiff contends that this evidence not only establishes the applicable standard of care but also creates jury questions on the issues of breach and proximate cause.\nSummary judgment is appropriate where no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182, 187, 415 S.E.2d 341, 344 (1992). All evidence offered at the hearing must be viewed in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference to be drawn from the evidence. Beaver v. Hancock, 72 N.C. App. 306, 310, 324 S.E.2d 294, 298 (1985). When a defendant moves for summary judgment and offers evidence demonstrating that no genuine issues of material fact exist or that plaintiff cannot make out an essential element of her claim, the plaintiff must then come forward with specific facts showing a genuine issue for trial. Id.\nIn the instant case, Dr. Kosanin\u2019s admissions established that the appropriate standard of care was to tape the eyes shut during surgery to prevent them from drying. Furthermore, according to plaintiff, Drs. Kosanin and Lanier told her they had concluded that the most likely cause of her injury was that her eye was not taped shut properly during surgery. Finally, Dr. McCracken\u2019s statement during treatment that plaintiff\u2019s injury happened \u201cduring her surgical procedure\u201d supports the inference that there was a causal connection between the actions of Dr. Kosanin and plaintiff\u2019s injury. When viewed in the light most favorable to plaintiff, this evidence establishes issues of fact as to whether Dr. Kosanin breached the applicable standard of care and thereby proximately caused plaintiff\u2019s injury. Therefore, the trial court erred in granting summary judgment in favor of Dr. Kosanin.\nWe next examine plaintiff\u2019s claim that summary judgment was improperly granted in favor of Dr. Lanier. Plaintiff conceded at oral argument that the only theory on which she is now proceeding against Dr. Lanier is apparent agency. The doctrine of apparent agency holds that \u201ca 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 on the principal\u2019s representation.\u201d Hoffman v. Moore Regional Hospital, 114 N.C. App. 248, 252, 441 S.E.2d 567, 570, disc. rev. denied, 336 N.C. 605, 447 S.E.2d 391 (1994). Plaintiff argues that the evidence presented at summary judgment was sufficient to create a factual issue as to whether Dr. Lanier could be held liable for Dr. Kosanin\u2019s negligence based on apparent agency.\nThe evidence showed that since 1986, Dr. Kosanin served as the primary anesthesiologist for Dr. Lanier. Beginning in April 1989, Dr. Kosanin had administered anesthesia to all of Dr. Lanier\u2019s patients requiring general anesthesia. Dr. Kosanin would furnish Dr. Lanier with a list of times when he was available for administering anesthesia, and Dr. Lanier would schedule his surgeries accordingly. Dr. Lanier\u2019s office would telephone Dr. Kosanin with the schedule of cases for the following week.\nPlaintiff testified that she chose Dr. Lanier to do her plastic surgery because she had heard he was \u201cthe best.\u201d Plaintiff first spoke to Dr. Kosanin the day before her surgery when he telephoned her to explain the anesthesia procedure to her. Prior to that call, Dr. Kosanin had sent plaintiff a pamphlet explaining his background and reviewing general anesthesia procedures. The pamphlet, entitled You and Your Anesthesiologist, stated that \u201c[s]ince April 1989, [Dr. Kosanin] works jointly with Dr. Verne C. Lanier, Jr., a plastic surgeon.\u201d Following her surgery, the only bill plaintiff received was through Dr. Lanier\u2019s business office and included a surgical fee, an anesthesia fee, and a facility fee.\nThese facts are sufficient to create a jury question as to whether plaintiff reasonably assumed Dr. Lanier was in charge of her entire surgical procedure, including anesthesia care and recovery. Thus, we cannot conclude as a matter of law that plaintiffs apparent agency claim against Dr. Lanier fails. We therefore hold that the trial judge erred in granting summary judgment in favor of Dr. Lanier on this issue.\nReversed and remanded.\nJudges EAGLES and MARTIN, JOHN C. concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Kenneth B. Oettinger, for plaintiff-appellant.", "Patterson, Dilthey, Clay & Bryson, L.L.P., by E.C. Bryson, Jr. and Mark E. Anderson, for defendant-appellee Radoslav Kosanin.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by Samuel G. Thompson and Kerry A. Shad, for defendants-appellees Verne C. Lanier, Jr. and Verne C. Lanier, Jr., M.D., F.A.C.S. \u2014 Plastic Surgery Center, P.A." ], "corrections": "", "head_matter": "LISA ANN NOELL, Plaintiff v. RADOSLAV KOSANIN, VERNE C. LANIER, JR., VERNE C. LANIER, JR., M.D., F.A.C.S.\u2014PLASTIC SURGERY CENTER, P.A. (formerly known as Lanier & Riefkohl Plastic Surgery Center, P.A.), DOE ONE, DOE TWO and DOE THREE, Defendants\nNo. 9414SC317\n(Filed 6 June 1995)\n1. Physicians, Surgeons, and Other Health Care Professionals \u00a7 137 (NCI4th)\u2014 anesthesiologist \u2014 eyes not taped closed \u2014 injury to eye \u2014 summary judgment for defendant\u2014 improper\nThe trial court erred by granting summary judgment for an anesthesiologist where plaintiff had a rhinoplasty and replacement of a chin implant; she suffered severe pain in her right eye following the surgery; it was determined that she had suffered erosion of the surface epithelium secondary to drying of the epithelial surface during her surgery; she continued to suffer periodic episodes of recurrent erosion syndrome which became less frequent but still occurred several times a month; her forecast of evidence included the affidavit of her mother and plaintiffs deposition, both relating that Dr. Lanier (the plastic surgeon) had told them that the eye had been improperly taped during surgery; and the response to a request for admissions and the deposition of the anesthesiologist in which the anesthesiologist indicated that the standard of care required the eyes to be taped shut during this surgery to prevent drying of the eye. Viewed in the light most favorable to plaintiff, the evidence establishes issues of fact as to whether the anesthesiologist breached the applicable standard of care and thereby proximately caused plaintiff\u2019s injury.\nAm Jut 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 256-258.\n2. Physicians, Surgeons, and Other Health Care Professionals \u00a7 96 (NCI4th)\u2014 eye not taped by anesthesiologist \u2014 liability of surgeon\nThe trial court erred in granting summary judgment for aplastic surgeon in a medical malpractice action arising from an anesthesiologist\u2019s failure to tape closed the patient\u2019s eye during surgery where this anesthesiologist had served as the primary anesthesiologist for this plastic surgeon since 1986; he had administered anesthesia to all of the plastic surgeon\u2019s patients requiring general anesthesia beginning in 1989; the anesthesiologist would furnish the plastic surgeon with a list of times when he was available and the surgeon would schedule his surgeries accordingly; the surgeon\u2019s office would telephone the anesthesiologist with the schedule of cases for the following week; plaintiff testified that she chose the surgeon because she heard that he was the best; she first spoke to the anesthesiologist the day before the surgery when he called to explain the procedure to her; he had sent her a pamphlet explaining his background and reviewing general anesthesia procedures; the pamphlet stated that he worked jointly with the plastic surgeon; and the only bill plaintiff received was through the plastic surgeon\u2019s office, which included an anesthesia fee. These facts are sufficient to create a jury question as to whether plaintiff reasonably assumed that the plastic surgeon was in charge of her entire surgical procedure, including anesthesia care and recovery.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 286, 287.\nAppeal by plaintiff from summary judgment entered 19 and 20 October 1993 by Judge J.B. Allen, Jr. in Durham County Superior Court. Heard in the Court of Appeals 6 April 1995.\nLaw Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Kenneth B. Oettinger, for plaintiff-appellant.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by E.C. Bryson, Jr. and Mark E. Anderson, for defendant-appellee Radoslav Kosanin.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by Samuel G. Thompson and Kerry A. Shad, for defendants-appellees Verne C. Lanier, Jr. and Verne C. Lanier, Jr., M.D., F.A.C.S. \u2014 Plastic Surgery Center, P.A." }, "file_name": "0191-01", "first_page_order": 225, "last_page_order": 231 }