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  "name": "MOZELLE B. SPILLMAN, Administrator of the Estate of JOYCE DARLENE GIBSON v. FORSYTH MEMORIAL HOSPITAL, DR. JULIAN KEITH, JR. and ALICE JEAN JOHNSON SHERRILL, Administratrix of the Estate of DR. FRANK HOWARD SHERRILL",
  "name_abbreviation": "Spillman v. Forsyth Memorial Hospital",
  "decision_date": "1976-08-18",
  "docket_number": "No. 7621SC34",
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  "casebody": {
    "judges": [
      "Judges Morris and Martin concur."
    ],
    "parties": [
      "MOZELLE B. SPILLMAN, Administrator of the Estate of JOYCE DARLENE GIBSON v. FORSYTH MEMORIAL HOSPITAL, DR. JULIAN KEITH, JR. and ALICE JEAN JOHNSON SHERRILL, Administratrix of the Estate of DR. FRANK HOWARD SHERRILL"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant contends the court erred in permitting the child\u2019s mother, Jacqueline Gibson, to testify concerning actions taken or not taken by Dr. Sherrill, now deceased, during his examination and treatment of her daughter. Defendant contends this violated G.S. 8-51 in that it permitted a person interested in the event to testify \u201cconcerning a personal transaction or communication between the witness and the deceased person.\u201d Mrs. Gibson did not testify concerning any conversation between herself and Dr. Sherrill. Her testimony related solely to what she observed take place in the conduct of the doctor and the child during the examination, i.e., the doctor \u201cmashed\u201d on the child\u2019s stomach, the child \u201cwas screaming and crying,\u201d the child vomited a \u201cgreen\u201d vomit in the doctor\u2019s presence, and no x-rays, blood samples, or urine samples were taken during the examination. G.S. 8-51 does not prohibit this testimony. The transaction observed and testified to by Mrs. Gibson was not one between her and the deceased person, Dr. Sherrill, but was of one between the deceased and a third party, her daughter. Therefore, notwithstanding her interest, she was properly allowed to testify concerning it. Burton v. Styers, 210 N.C. 230, 186 S.E. 248 (1936); Zollicoffer v. Zollicoffer, 168 N.C. 326, 84 S.E. 349 (1915); Johnson v. Cameron, 136 N.C. 243, 48 S.E. 640 (1904); McCall v. Wilson, 101 N.C. 598, 8 S.E. 225 (1888); 1 Stansbury\u2019s N. C. Evidence, Brandis Revision, \u00a7 74, p. 228.\nDefendant\u2019s second assignment of error, based on exceptions 12, 13, 14, 15, 16, and 25, is directed to the court\u2019s overruling defense objections and permitting Mrs. Gibson to testify concerning what occurred when her child was seen by Dr. Calderon on her second visit to the hospital. Defendant\u2019s contention that this testimony was hearsay is without merit. \u201cIf a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.\u201d 1 Stansbury\u2019s N. C. Evidence, Brandis Revision, \u00a7 141, p. 467. Here, Mrs. Gibson\u2019s testimony concerning statements made by Dr. Calderon was not offered for the purpose of proving the truth of the matters stated by him. It was offered solely to show that the statements were made, and for that purpose it was relevant and competent to show the treatment, or lack of treatment, accorded to her child. It is true, as defendant contends, that there is no evidence that Dr. Calderon was acting as the agent or employee of Dr. Sherrill, but there was evidence that before he examined the child, Dr. Calderon referred to the chart that had been made on the previous night by Dr. Sherrill. It was for the jury to determine whether the faulty diagnosis made by Dr. Sherrill, as recorded by him on that chart, was a material factor in misleading Dr. Calderon so that he continued the faulty treatment. If so, and to that extent, Dr. Sherrill would be responsible for the consequences of the continued faulty treatment. Mrs. Gibson\u2019s testimony which is the subject of defendant\u2019s second assignment of error was relevant and competent to show that treatment, and defendant\u2019s second assignment of error is overruled.\nWe also find no error in the court\u2019s overruling defense objections and permitting Mrs. Gibson to testify concerning what she observed take place at the time of her third and final visit to the hospital when her child died. Although she referred in this testimony to what \u201cthey\u201d did and said at that time, without further identifying who \u201cthey\u201d were but obviously referring to hospital personnel, defendant could not be prejudiced, since nothing which Mrs. Gibson testified at that time tended to show any negligence on the part of Dr. Sherrill or anyone else. Her testimony that \u201cthey\u201d asked her to step out of the examination room so that \u201cthey\u201d could work with her child did not constitute hearsay, since it was not offered to prove the truth of anything contained in the statement which she testified \u201cthey\u201d made, but solely for the purpose of showing that the statements were made. Counsel for defendant complain in their brief that \u201c[w]hen Mrs. Gibson took her sick child to the hospital emergency room for the third and last time, the Court allowed her to testify in a highly emotional manner concerning what \u2018they\u2019 and \u2018them\u2019 said and did as the child was in the extremis and dying.\u201d The record does not support this, although the events to which Mrs. Gibson testified would quite naturally evoke strong feelings on her part. In any event, the witness\u2019s testimony was not rendered incompetent even if, as defendant complains, it may have been given \u201cin a highly emotional manner.\u201d Defendant\u2019s third asisgnment of error is overruled.\nDefendant\u2019s fourth assignment of error is directed to the admission into evidence of the medical records of the treatment of Joyce Darlene Gibson at Forsyth Memorial Hospital during the period from 14 May through 16 May 1968. Hospital medical records are admissible upon proper foundation being laid. Sims v. Insurance Co. 257 N.C. 32, 125 S.E. 2d 326 (1962). Here, the records were identified by the hospital custodian, who testified they were kept in the normal course of business of the hospital. By pre-trial order defendant stipulated they were genuine, and neither at trial nor on this appeal has defendant contended that there was any lack of a proper foundation. In their brief defendants\u2019 counsel state: \u201cIf the evidence were offered purely to show what was done or not done to the patient, there would probably be no difficulty with their admission.\u201d That would appear to be precisely the purpose for which the records were admitted in this case. Defendant\u2019s counsel cites no authority nor have they advanced any persuasive reason for their contention that where the records are introduced to show malpractice on the part of a treating physician, they should be admitted \u201conly if it can be shown that the physician knew, or in the exercise of due care should have known of the particular entry being made and the particular task having been performed.\u201d We perceive no sound reason for such a limitation. Moreover, the critical record in this case, being the record made when the child was first examined at the hospital by Dr. Sherrill on 14 May 1968 on the occasion of her first visit, bears Dr. Sherrill\u2019s signature as the emergency room attending physician. We find the hospital records were admissible in evidence in this case and defendant\u2019s fourth assignment of error is overruled.\nDefendant\u2019s fifth assignment of error challenges the admission in evidence of the death certificate of Joyce Darlene Gibson. Under G.S. 130-66 (b), a properly certified copy of a death certificate \u201cshall be considered for all purposes the same as the original and shall be prima facie evidence of the facts therein stated.\u201d In a civil action, a death certificate may be introduced \u201cas evidence of the fact of death, the time and place where it occurred, the identity of the deceased, the bodily injury or disease which was the cause of death, the disposition of the body and possibly other matters relating to the death.\u201d Branch v. Dempsey, 265 N.C. 733, 748, 145 S.E. 2d 395, 406 (1965). [For constitutional limitations on the use of a death certificate as evidence against a defendant in a criminal case, see State v. Watson, 281 N.C. 221, 188 S.E. 2d 289 (1972)]. Here, defendant stipulated by pre-trial order to the genuineness of the death certificate. It shows on its face that it was signed by Dr. Frank H. Sherrill on 17 May 1968. It was admissible as prima facie evidence of the facts therein stated. G.S. 130-66 (b). Defendant\u2019s contention that \u201c(t)his death certificate recorded, at least in part, a transaction between the dead child\u2019s mother and the late Dr. Sherrill, the defendant\u2019s intestate,\u201d and that \u201c(t)o this extent the contents of the death certificate should have been excluded from consideration by the jury by reason of the ban contained in G.S. 8-51,\u201d is without merit. The certificate recorded no transaction between the child\u2019s mother and the doctor, and even had that been the case, record evidence does not fall within the ban of G.S. 8-51. See, Flippen v. Lindsey, 221 N.C. 30, 18 S.E. 2d 824 (1942). Defendant\u2019s fifth assignment of error is overruled.\nDefendant assigns error to the court\u2019s overruling defense objections to hypothetical questions asked by plaintiff\u2019s counsel of the witness, Dr. Michael Lawless. Defendant contends the questions were fatally defective because some of the facts stated therein, on the basis of which the witness was asked to express his opinion, were not supported by competent evidence. In this connection defendant repeats the contentions which have already been dealt with in this opinion as to the competency of the plaintiff\u2019s evidence. We have carefully reviewed the challenged hypothetical questions, and we find the facts stated therein to be supported by competent direct evidence or by reasonable inferences which the jury could legitimately draw from the evidence. That one of the questions made reference to the x-rays which were only made at the time of the child\u2019s second visit to the hospital and which, insofar as the record discloses, may never have been seen by Dr. Sherrill, does not render the question fatally defective. The answers given by Dr. Lawless make it abundantly clear that he did not express his opinion that Dr. Sherrill\u2019s treatment of the child failed to comply with standard acceptable medical practice because Dr. Sherrill failed to heed what was on x-rays which Dr. Sherrill may never have seen. Rather, Dr. Lawless\u2019s testimony makes it clear that he expressed that opinion because Dr. Sherrill, among other things, failed to have adequate diagnostic tests, including x-rays, made when the child was first brought to him for treatment.\nThat Dr. Lawless was a medical student and had been graduated with an M.D. degree in 1968, the year in which the child died, did not disqualify him from expressing an opinion as to whether Dr. Sherrill\u2019s treatment of the child in 1968 was in accord with standard, approved and accepted medical practice in Winston-Salem and other similar communities. Dickens v. Everhart, 284 N.C. 95, 199 S.E. 2d 440 (1973).\nWe have carefully examined defendant\u2019s exceptions to the court\u2019s charge to the jury, and we find the charge, when considered contextually and as a whole, to be free from prejudicial error.\nDefendant\u2019s motions to set aside the verdict and for a new trial on the grounds that the verdict as to damages was grossly excessive and that the verdict was contrary to the greater weight of the evidence were addressed to the sound discretion of the trial judge, and his rulings thereon will not be disturbed on this appeal.\nNo error.\nJudges Morris and Martin concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "White and Crumpler by Harrell Powell, Jr. and Michael J. Lewis for plaintiff appellee.",
      "Jordan, Wright, Nichols, Caff rey <& Hill by Welch Jordan and Karl N. Hill, Jr. for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "MOZELLE B. SPILLMAN, Administrator of the Estate of JOYCE DARLENE GIBSON v. FORSYTH MEMORIAL HOSPITAL, DR. JULIAN KEITH, JR. and ALICE JEAN JOHNSON SHERRILL, Administratrix of the Estate of DR. FRANK HOWARD SHERRILL\nNo. 7621SC34\n(Filed 18 August 1976)\n1. Evidence \u00a7 11\u2014 treatment of child by deceased doctor \u2014 testimony of mother not banned by dead man\u2019s statute\nThe trial court in a wrongful death action did not err in allowing plaintiff, the mother of a deceased child, to testify concerning actions taken or not taken by a doctor, who was deceased at the time of the trial, during his examination and treatment of the child, notwithstanding the interest of the mother, since the transaction observed and testified to by her was not between her and the deceased doctor, but was between the deceased doctor and a third party, her daughter. G.S. 8-51.\n2. Evidence \u00a7 33\u2014 transactions at hospital \u2014 testimony not hearsay\nThe trial court in a wrongful death action did not err in allowing plaintiff, the mother of a deceased child, to testify concerning what occurred when her child was taken to the hospital for the second and third times, since the testimony was not hearsay but was offered solely for the purpose of showing that certain statements were made.\n3. Evidence \u00a7 29\u2014 hospital records \u2014 admissibility\nThe trial court in a wrongful death action properly allowed into evidence the hospital medical records of the treatment of deceased, since a proper foundation was laid for their admission, and defendant\u2019s contention that where the records are introduced to show malpractice on the part of a treating physician, they should be admitted only if it can be shown that the physician knew or should have known of the particular entry being made and the particular task having been performed is without merit.\n4. Evidence \u00a7 11\u2014 death certificate \u2014 signature of deceased doctor \u2014 no ban of dead man\u2019s statute\nThe death certificate of plaintiff\u2019s intestate signed by defendant\u2019s intestate was not inadmissible by reason of the ban contained in G.S. 8-51, since the certificate recorded no transaction between plaintiff and defendant\u2019s intestate, and even had that been the case, record evidence does not fall within the ban of G.S. 8-51.\n5. Evidence \u00a7 50\u2014 hypothetical questions \u2014 facts supported by competent evidence\nHypothetical questions asked an expert medical witness in this wrongful death action contained facts supported by competent evidence and were properly allowed by the trial court.\nAppeal by defendant from Seay, Judge. Judgment entered 18 September 1975 in Superior Court, Forsyth County. Heard in the Court of Appeals 15 April 1976.\nThis is a civil action for wrongful death of a 3 year 10 month old child. Joyce Darlene Gibson, plaintiff\u2019s intestate, died on 16 May 1968 from acute peritonitis resulting from a ruptured appendix. Plaintiff alleged her death was proximately caused by defendants\u2019 negligence in furnishing medical treatment.\nProceedings prior to trial resulted in dismissal of the action as to all defendants except Dr. Frank Howard Sherrill. Dr. Sherrill died during pendency of the action and the adminis-tratrix of his estate was substituted as party defendant.\nAt the trial Dr. Lide, the pathologist who performed an autopsy on Joyce Darlene Gibson, testified that the autopsy revealed the child had acute gangrenous appendicitis, which he defined as \u201ca far advanced infection in the appendix,\u201d that the appendix had ruptured, and that the child\u2019s death resulted from peritonitis caused by the perforated appendix.\nJacqueline Gibson, mother of the child, testified that prior to the middle of May 1968 her child was in normal good health. On 13 May 1968 the child complained that her stomach hurt. That night Joyce awakened her mother screaming and saying, \u201cMama, my stomach.\u201d She was vomiting, her stomach was swollen, and her navel had turned purple. Her temperature taken rectally registered 105. With assistance of a neighbor, Mrs. Gibson took Joyce to Forsyth Memorial Hospital, where they arrived shortly after midnight on 14 May 1968. While in the waiting room, Joyce continued to vomit and cry. She would try to stand up when she was vomiting, but she could not. She would fall on her knees, and her mother had to hold her. She was taken to the examining room, where, in addition to her mother, there was present Dr. Sherrill and a nurse employed by the hospital.\nOver defendant\u2019s objections, Mrs. Gibson was permitted to testify as to what she observed Dr. Sherrill do with regard to the treatment of her child. She testified, \u201cHe just checked her stomach,\u201d and \u201cHe mashed on her stomach,\u201d and that at that time Joyce \u201cwas screaming and crying.\u201d Mrs. Gibson testified that during the time the doctor was in the room, the child vomited and that the color of the vomit was green, that the doctor gave her no instructions with regard to her child, no x-rays were made, and no blood or urine sample was taken.\nMrs. Gibson was given some medication, a \u201cred looking medicine,\u201d and after the examination, she took her child home. At home, Joyce\u2019s condition worsened. On the following night Mrs. Gibson again took her to the Hospital Emergency Room. This time she was seen by a Dr. Calderon, who reviewed the chart made on the previous day by Dr. Sherrill. Dr. Calderon did not admit Joyce to the hospital, but called Mrs. Gibson\u2019s attention to a posted sign which stated that welfare patients had to go to the clinic and gave the hours that the clinic was open. After Dr. Calderon examined Joyce, Mrs. Gibson took her back home. During the remainder of the night Joyce continued to vomit and developed diarrhea. On the following day, 16 May 1968, Mrs. Gibson took Joyce back to the hospital, where they arrived at approximately 1:00 p.m. Joyce was immediately taken into the Emergency Room, where she was seen by Dr. Sherrill. She was given oxygen and other steps were taken, but within approximately thirty minutes she died.\nHospital records of Joyce Darlene Gibson were received in evidence after being identified by the medical records custodian. These records for the 14 May 1968 examination were signed by Dr. Sherrill and indicate his diagnosis as an upper respiratory infection, gastroenteritis, and possibly measles, with treatment of Polycillin and ASA suppositories. Records of the latter examination by Dr. Calderon indicate Joyce had a temperature of 102 degrees with a distended abdomen. X-rays taken at that time revealed a marked distention of the small bowel, and showed changes in the abdomen consistent with that found in a mechanical obstruction of the small bowel. The death certificate, signed by Dr. Sherrill on 17 May 1968, stated the immediate cause of death to be \u201cAcute peritonitis, duration ? 4 days due to, or as a consequence of Perforated appendix due to, or as a consequence of Gastroenteritis with dehydration.\u201d\nDr. Michael Lawless, an Assistant Professor in the Department of Pediatrics at Bowman Gray School of Medicine and Director of Pediatrics at Reynolds Memorial Hospital Family Health Center, was found by the court to be an expert medical witness specializing in the field of Pediatrics. Dr. Lawless testified, in response to a hypothetical question, that in his opinion the medical treatment given Joyce Gibson by Dr. Sherrill \u201cwas not standard acceptable medical treatment in Winston-Salem or similar communities in this country.\u201d\nDefendant presented no evidence.\nThe jury found that plaintiff\u2019s intestate\u2019s death was caused by the negligence of the defendant as alleged in the complaint and awarded damages of $65,000. From entry of judgment in accordance with the verdict, defendant appealed.\nWhite and Crumpler by Harrell Powell, Jr. and Michael J. Lewis for plaintiff appellee.\nJordan, Wright, Nichols, Caff rey <& Hill by Welch Jordan and Karl N. Hill, Jr. for defendant appellant."
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