{ "id": 8173945, "name": "NARINDRA NATH HANDA and his wife, YASHULA HANDA, Plaintiffs v. ALBERT R. MUNN, III, M.D. and CAPITAL EYE CENTER, P.A., Defendants", "name_abbreviation": "Handa v. Munn", "decision_date": "2007-04-03", "docket_number": "No. COA06-808", "first_page": "515", "last_page": "521", "citations": [ { "type": "official", "cite": "182 N.C. App. 515" } ], "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": "N.C. Gen. Stat. \u00a7 90-21.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": -1 }, { "cite": "632 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636404 ], "year": 2006, "pin_cites": [ { "page": "825", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0823-01" ] }, { "cite": "627 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635431 ], "year": 2006, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0672-01" ] }, { "cite": "321 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524317 ], "year": 1984, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0627-01" ] }, { "cite": "326 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305990 ], "year": 1990, "pin_cites": [ { "page": "26-27, 387", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0024-01" ] }, { "cite": "179 N.C. App. 206", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8235483 ], "year": 2006, "pin_cites": [ { "page": "209", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0206-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "573-74" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "361 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743299, 3739878, 3740493, 3741777, 3738645, 3735861 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0166-06", "/nc/361/0166-03", "/nc/361/0166-02", "/nc/361/0166-01", "/nc/361/0166-05", "/nc/361/0166-04" ] }, { "cite": "177 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300979 ], "year": 2006, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0116-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 619, "char_count": 13696, "ocr_confidence": 0.728, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20111095280072314 }, "sha256": "08ee1b4cbf8f58f862e62f7390f301b7d8c74c6d4fdfa36e30fa96b77f19f3d6", "simhash": "1:bbaf7af33a7b6ccd", "word_count": 2223 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and LEVINSON concur." ], "parties": [ "NARINDRA NATH HANDA and his wife, YASHULA HANDA, Plaintiffs v. ALBERT R. MUNN, III, M.D. and CAPITAL EYE CENTER, P.A., Defendants" ], "opinions": [ { "text": "McCullough, judge..\nPlaintiffs appeal from an order granting defendants\u2019 motion for summary judgment. We reverse and remand for further proceedings.\nFACTS\nNarindra Nath Handa (\u201cMr. Handa\u201d) and Yashula Handa (\u201cMrs. Handa\u201d), plaintiffs, are husband and wife. Mr. Handa and Mrs. Handa filed a verified complaint against Albert R. Munn, III, M.D. (\u201cDr. Munn\u201d) and Capital Eye Center, P.A., defendants.\nThe complaint alleged the following: Beginning in 2000, Mr. Handa was a patient of Dr. Munn and Capital Eye Center. At that time, Mr. Handa\u2019s vision in his right eye was correctable to 20/20. Mr. Handa\u2019s vision in his left eye was peripheral only. On his own initiative, Dr. Munn recommended implantation of an artificial intraocular lens in Mr. Handa\u2019s right eye. Dr. Munn advised Mr. Handa that the surgery was very simple. Prior to the surgery, Mr. Handa could drive a car, read books, play golf, use a computer, and perform routine tasks that are a normal part of life for a person with vision. During the surgery, Dr. Munn discovered that Mr. Handa\u2019s posterior lens capsule had been partially removed in a prior cataract surgery. Dr. Munn continued with the surgery and stitched the artificial lens to the back of Mr. Handa\u2019s iris. After the surgery, Mr. Handa did not recover his vision. Dr. Munn performed a second surgery on Mr. Handa to remove retained cortical pieces. During this procedure, Dr. Munn removed the artificial lens and ultimately reinserted it. After the second surgery, Mr. Handa\u2019s vision did not return to the level of its pre-surgical condition, therefore, Mr. Handa got an appointment to see Dr. Munn. Dr. Munn examined Mr. Handa and told him his retina was detached and arranged an appointment for Mr. Handa to go to Duke Eye Center. The doctors at Duke Eye Center informed Mr. Handa that he did not have a detached retina, but there was retinal damage, corneal damage, and the intraocular pressure in his right eye had dropped to zero. Mr. Handa began a long course of treatment at Duke Eye Center, and his vision has never returned to normal. Mr. Handa underwent a cornea transplant at Duke, and his vision has improved slightly in the time since the surgery, but he still has no functional vision in his right eye.\nMr. Handa claimed that because of defendants\u2019 negligence, he is effectively blind and that he cannot drive a car, play golf, read a book, use a computer, or perform many other ordinary tasks. He claimed his blindness will continue indefinitely. He also asserted that, although he signed an informed consent document, he was physically unable to read it before signing and the action of the health care provider in obtaining the consent was not in accordance with the appropriate standards. Mrs. Handa claimed that she has suffered the burden of significant time and work to care for her blind husband, and has further suffered the loss of companionship, affection, and his household services.\nOn 29 December 2005, Mr. and Mrs. Handa filed an amended motion for partial summary judgment on the issue of negligence. Defendants filed a motion for partial summary judgment on all liability issues other than plaintiffs\u2019 allegations regarding the lack of \u201cinformed consent.\u201d Both motions were heard and the trial court entered an order granting defendants\u2019 motion.\nOn 10 February 2006, defendant filed a motion for summary judgment on the remaining liability issue of \u201cinformed consent.\u201d On 22 March 2006, the trial court granted defendants\u2019 motion. From this order, plaintiffs appeal.\nI.\nPlaintiffs contend the trial court erred in granting defendants\u2019 motion for summary judgment. Specifically, plaintiffs assert the evidence raised a genuine issue of material fact that defendants failed to obtain Mr. Handa\u2019s informed consent before performing elective surgery on Mr. Handa\u2019s one good eye. We agree and reverse and remand.\nGranting summary judgment is appropriate only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). \u201cThere is no genuine issue of material fact where a party demonstrates that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\u201d Harrison v. City of Sanford, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc. review denied, 361 N.C. 166, \u2014 S.E.2d \u2014 (2006). On appeal from a grant of summary judgment, this Court' reviews the trial court\u2019s decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 573-74 (1999). \u201c \u2018The moving party has the burden of establishing the lack of any triable issue,\u2019 and \u2018[a] 11 inferences of fact from the proof offered at the hearing must be looked at in the light most favorable to the nonmoving party.\u2019 \u201d Nelms v. Davis, 179 N.C. App. 206, 209, 632 S.E.2d 823, 825 (2006) (citation omitted).\nN.C. Gen. Stat. \u00a7 90-21.13(a) (2005), which governs informed consent to medical treatment, provides:\n(a) No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient. . . where:\n(1) The action of the health care provider in obtaining the consent of the patient. . . was 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; and\n(2) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or\n(3) A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.\nId.\nTo meet this statutory standard, the health care provider must provide the patient with sufficient information about the proposed treatment and its attendant risks to conform to the customary practice of members of the same profession with similar training and experience situated in the same or similar communities. In addition, the health care provider must impart enough information to permit a reasonable person to gain a \u201cgeneral understanding\u201d of both the treatment or procedure and the \u201cusual and most frequent risks and hazards\u201d associated with the treatment. \u201cThe provider may not be held liable, however, if a reasonable person, under the surrounding circumstances, would have undergone the treatment or procedure had he or she been advised in accordance with G.S. 90-21.13(a)(1) and (2). G.S. 90-21.13(a)(3).\u201d\nFoard v. Jarman, 326 N.C. 24, 26-27, 387, S.E.2d 162, 164-65 (1990) (citation omitted). \u201cUnder subsection (b) [of N.C. Gen. Stat. \u00a7 90-21.13], a signed consent ... is presumed valid only if it \u2018meets the foregoing standards,\u2019 clearly those of subsection (a). The consent form itself is not conclusive.\u201d Estrada v. Jaques, 70 N.C. App. 627, 645, 321 S.E.2d 240, 251 (1984).\nIn the instant case, the trial court erred by granting defendants\u2019 motion for summary judgment. For example, we believe there are genuine issues of material fact in regard to N.C. Gen. Stat. \u00a7 90-21.13(a) which should be decided by the jury. There is an issue as to whether Mr. Handa had a general understanding of the usual and most frequent risks and hazards inherent in the proposed procedure. Mr. Handa testified that Dr. Munn told him that there was \u201chardly any risk involved\u201d in the surgery, and that Dr. Munn did not describe any of the risks. Although Mr. Handa admits signing a consent form, he testified that he could not read it because his vision was blurry due to procedures that took place in Dr. Munn\u2019s office prior to signing the form. Mr. Handa testified that no one in Dr. Munn\u2019s office reviewed the consent form with him and no one offered to read it to him. He believed he was only consenting to the surgery by signing the form because he believed the surgery was risk free. In addition, during Mrs. Handa\u2019s deposition, she was asked to explain the meeting she and Mr. Handa had with Dr. Munn regarding the surgery. Mrs. Handa testified that Dr. Munn spent no more than five minutes with her and Mr. Handa, and that all Dr. Munn said was that the surgery was a \u201cvery simple procedure\u201d and that Mr. Handa \u201cwill be very happy with the results, and he can throw away his reading glasses.\u201d\nIn addition, there is an issue of material fact regarding how the consent was obtained. N.C. Gen. Stat. \u00a7 90-21.13(b) states that if a consent is evidenced in writing, signed by the patient or other authorized person, and meets the standards found under subsection (a) of N.C. Gen. Stat. \u00a7 90-21.13, then the consent is presumed to be valid. N.C. Gen. Stat. \u00a7 90-21.13(b). However, \u201c[t]hispresumption... maybe subject to rebuttal. . . [on] proof that such consent was obtained by fraud, deception or misrepresentation of a material fact.\u201d N.C. Gen. Stat. \u00a7 90-21.13(b). Accordingly, summary judgment was not proper.\nIn his brief on appeal, Dr. Munn asserts several reasons why he believes that plaintiffs\u2019 expert witness is not qualified to offer opinions regarding the standard of practice for obtaining proper informed consent. Dr. Munn argues (1) that plaintiffs\u2019 expert has no knowledge of Dr. Munn\u2019s training and experience, (2) that plaintiffs\u2019 expert has no knowledge of the Raleigh medical community, and (3) that plaintiffs\u2019 expert\u2019s professional experience is deficient. We disagree with Dr. Munn. Plaintiffs\u2019 expert is a general ophthalmologist and he understood Dr. Munn to be a general ophthalmologist and an ophthal-mologic surgeon. In addition, plaintiffs\u2019 expert stated he is familiar with the standard of practice in the southeast including Virginia, North Carolina, Georgia and Alabama. Although this could be interpreted as a regional standard and not a community standard, here Dr. Munn\u2019s expert stated that there is no difference in the standard between Raleigh and Charlotte or any city in between. Dr. Munn\u2019s expert also stated that the standard is fairly universal within North Carolina for non-emergency treatment. Here, plaintiff\u2019s expert was familiar with Greensboro having had two cataract surgeries in Greensboro, one before the incident being litigated, and one after litigation commenced. Therefore, given the particular facts of this case and the statement of Dr. Munn\u2019s expert, we believe Greensboro is a \u201csimilar community\u201d to Raleigh as required by N.C. Gen. Stat. \u00a7 90-21.13(a) and plaintiffs\u2019 expert was qualified to discuss the standard in Raleigh. Finally, we disagree with Dr. Munn\u2019s assertion that plaintiffs\u2019 expert\u2019s professional experience is deficient.\nAccordingly, we agree with plaintiffs.\nReversed and remanded for further proceedings.\nJudges BRYANT and LEVINSON concur.", "type": "majority", "author": "McCullough, judge.." } ], "attorneys": [ "Stroud Law Office, PLLC, by W. Randall Stroud, for plaintiff appellants.", "Yates, McLamb & Weyher, LLP, by John W. Minier and William T. Kesler, Jr., for defendant appellees." ], "corrections": "", "head_matter": "NARINDRA NATH HANDA and his wife, YASHULA HANDA, Plaintiffs v. ALBERT R. MUNN, III, M.D. and CAPITAL EYE CENTER, P.A., Defendants\nNo. COA06-808\n(Filed 3 April 2007)\n1. Medical Malpractice\u2014 informed consent to medical treatment \u2014 summary judgment\nThe trial court erred in a medical negligence case by granting defendants\u2019 motion for summary judgment based on the issue of lack of informed consent, because: (1) there are genuine issues of material fact in regard to N.C. Gen. Stat. \u00a7 90-21.13(a), including whether plaintiff patient had a general understanding of the usual and most frequent risks and hazards inherent in the proposed procedure; and (2) there is an issue of material fact regarding how the consent was obtained.\n2. Witnesses\u2014 expert qualifications \u2014 standard of practice\u2014 informed consent\nThe trial court did not err in a medical negligence case by concluding that plaintiffs\u2019 expert witness was qualified to offer opinions regarding the standard of practice for obtaining proper informed consent, because: (1) plaintiffs\u2019 expert was a general ophthalmologist and defendant Dr. Munn was a general ophthalmologist and an ophthalmologic surgeon; (2) plaintiffs\u2019 expert stated he was familiar with the standard of practice in the southeast, and although this statement could be interpreted as a regional standard and not a community standard, Dr. Munn\u2019s expert stated that there is no difference in the standard between Raleigh and Charlotte or any city in between; (3) Dr. Munn\u2019s expert stated that the standard is fairly universal within North Carolina for non-emergency treatment; (4) plaintiff\u2019s expert was familiar with Greensboro having had two cataract surgeries in Greensboro; (5) given the particular facts of this case and the statement of Dr. Munn\u2019s expert, Greensboro is a \u201csimilar community\u201d to Raleigh as required by N.C. Gen. Stat. \u00a7 90-21.13(a), and plaintiffs\u2019 expert was qualified to discuss the standard in Raleigh; and (6) contrary to Dr. Munn\u2019s assertion, plaintiffs\u2019 expert\u2019s professional experience was sufficient.\nAppeal by plaintiffs from an order entered 22 March 2006 by Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard in the Court of Appeals 7 February 2007.\nStroud Law Office, PLLC, by W. Randall Stroud, for plaintiff appellants.\nYates, McLamb & Weyher, LLP, by John W. Minier and William T. Kesler, Jr., for defendant appellees." }, "file_name": "0515-01", "first_page_order": 547, "last_page_order": 553 }