{
  "id": 8525166,
  "name": "RICHARD LEE HOLIDAY v. LAWRENCE M. CUTCHIN, M.D.",
  "name_abbreviation": "Holiday v. Cutchin",
  "decision_date": "1983-07-19",
  "docket_number": "No. 823SC453",
  "first_page": "369",
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  "analysis": {
    "cardinality": 593,
    "char_count": 10163,
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  "last_updated": "2023-07-14T21:55:10.514065+00:00",
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    "date_added": "2019-08-29",
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    "judges": [
      "Judges Arnold and Hill concur."
    ],
    "parties": [
      "RICHARD LEE HOLIDAY v. LAWRENCE M. CUTCHIN, M.D."
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nThis medical negligence action arises out of Dr. Lawrence M. Cutchin\u2019s alleged failure properly to diagnose and treat Richard Holiday, who complained of pain in his left leg and foot when seen in the Edgecombe General Hospital on 1 April 1980. Richard Holiday\u2019s left leg was subsequently amputated.\nI\nThe facts in this case are virtually uncontroverted. On 1 April 1980, Dr. Lawrence Cutchin examined Richard Holiday who was crying and complaining of pain in his left leg and foot. Holiday\u2019s history revealed that he had been injured while playing basketball two days prior thereto. Dr. Cutchin manipulated Holiday\u2019s ankle and knee and found full range of motion. Additionally, Dr. Cutchin had an x-ray taken ,of Holiday\u2019s leg; the x-ray did not reveal any fracture. Dr. Cutchin diagnosed Holiday as having muscle strain and prescribed heat and Darvon for pain. Dr. Cut-chin did not take the peripheral pulse of Mr. Holiday on either leg, nor did he consider, during his examination, that Mr. Holiday might have a vascular problem.\nTwo days later, on 3 April 1980, Holiday again returned to the Emergency Room complaining of pain in his left foot and ankle. This time he was seen by Dr. James Kelsh, who, upon examination, discovered that Holiday\u2019s left leg was pale and cold to the touch. Additionally, the peripheral pulse in the left leg was absent. Holiday was immediately diagnosed as having vascular insufficiency of the left leg and was rushed to Pitt Memorial Hospital in Greenville, where his left leg was amputated below the knee. Later, an above the knee amputation was necessary.\nII\nUpon these undisputed facts, Holiday contends that Dr. Cut-chin was negligent in not considering that Holiday might be suffering from vascular insufficiency and in not taking the peripheral pulse of Holiday\u2019s leg on 1 April 1980. Indeed, two of Holiday\u2019s medical experts expressed their opinions that Dr. Cutchin\u2019s care of Holiday did not meet the standard of care within the community in which Dr. Cutchin practiced.\nOn the basis of the same undisputed evidence, Dr. Cutchin\u2019s three medical experts concluded that the treatment and care which Dr. Cutchin provided Holiday were within the standard of care for physicians in the community in which Dr. Cutchin practiced. Similar testimony was given on Dr. Cutchin\u2019s behalf by Dr. James Kelsh, although Dr. Kelsh was called as a witness by Holiday.\nAs can be seen, this case does not involve a factual dispute about what Dr. Cutchin did or did not do; it does not involve Dr. Cutchin\u2019s good or bad judgment. Indeed, the issue to be resolved \u2014 whether Dr. Cutchin\u2019s treatment was in accord with the applicable standard of care \u2014 is not dependent on the credibility of Dr. Cutchin.\nThe dispositive issue in this case concerns the introduction into evidence of testimony concerning Dr. Cutchin\u2019s character and reputation, and with the trial court\u2019s charge to the jury concerning that evidence. Because we find that Dr. Cutchin\u2019s character had not been impeached and because the issues presented to the jury did not require it to resolve Dr. Cutchin\u2019s credibility, we hold that the trial court erroneously admitted evidence of Dr. Cut-chin\u2019s character and reputation. It is not necessary therefore to discuss the trial court\u2019s instruction on character and reputation evidence.\nIll\nEvidence of the good or bad character of a party to civil action is generally inadmissible. Such evidence is ordinarily too remote to be of substantial value, tends to confuse the issues and unduly protract the trial, and (most important of all) offers a temptation to the jurors to reward a good life or punish a bad man instead of deciding the issues before them.\n1 Brand\u00e9is, North Carolina Evidence \u00a7 103 (2d rev. ed. 1982), p. 385. This general rule, like most others, is subject to court engrafted exceptions. Therefore, character evidence is admissible when character is directly in issue as in actions involving moral intent: seducing an innocent or virtuous woman, defamation, or malicious prosecution. Similarly, character evidence is admissible when the credibility of the party witness has been challenged or impeached. See, e.g., Lorbacher v. Talley, 256 N.C. 258, 260, 123 S.E. 2d 477, 479 (1962) in which our Supreme Court said: \u201cWhere a party testifies and the credibility of his testimony is challenged, testimony that his general character is good is competent and proper evidence for consideration upon the truthfulness of his testimony.\u201d The general rule cited in Lorbacher was subsequently followed in Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22 (1966).\nWe are aware of this Court\u2019s statement in Wesley v. Greyhound Lines, Inc., 47 N.C. App. 680, 698, 268 S.E. 2d 855, 866, pet. for disc, review denied, 301 N.C. 239 (1980), that \u201ccross examination is one form of impeachment\u201d and that since defendant cross examined plaintiff at trial, \u201cplaintiff was free to prove her good character although there [had been] no direct attack upon it.\u201d [Citation omitted.] That statement, however, must be considered along with the facts in Wesley. In the Wesley case, \u201c \u2018moral intent [was] marked and prominent in the nature of the issue.\u2019 \u201d Brand\u00e9is, \u00a7 103, p. 387. For example, (1) the complaint alleged that Darrel Banks, armed with a knife, assaulted, raped and forced Lucille Wesley to submit to violent and unnatural sex acts with him in the women\u2019s restroom of the Greyhound Bus Station; and (2) defendant Greyhound Lines, Inc., in the face of allegations that they negligently maintained their premises, filed an Answer averring that plaintiff (a) was at fault for what happened to her because she arrived at the Greyhound Bus Station at 3:00 in the morning with full knowledge that she would not be met upon her arrival, (b) left a place of safety and went into and remained in a place of danger, and (c) was placed on notice by her prior conversations with Banks that she might be sexually molested. Thus, the whole tenor of the trial put Lucille Wesley\u2019s character in issue. (There was more testimony in the record concerning the pimps, prostitutes and homosexuals who frequented the area of the Greyhound Bus Station than there was testimony concerning what Banks actually did to Ms. Wesley.) Again, viewed in this context, Wesley must be limited to its facts.\nClearly, Wesley does not mean, for example, that a plaintiff in a personal injury case can put on evidence of his or her good character when that witness has only been asked the following question on cross examination: \u201cAre you married?\u201d Nor does Wesley suggest that a witness in a civil case can put on evidence of his or her good character when the entire cross examination of the witness consists of the following:\nQ. Did you say on direct examination that you had bacon and eggs for breakfast?\nA. Yes.\nQ. Didn\u2019t you tell me in your depositions that you actually had sausage and eggs for breakfast?\nA. Yes.\nNot even the most ardent trial advocacy skills proponent would suggest that the witness in either of the above examples had been impeached on any relevant matter.\nNothing we have said waters down the traditional impeachment rule. The credibility of the party or witness in a civil case must be challenged before character evidence is admissible. \u201c \u2018In whatever way the credit of the witness may be impaired, it may be restored or strengthened by this ... or any other proper evidence tending to insure confidence in his veracity and in the truthfulness of his testimony.\u2019 \u201d Lorbacher, 256 N.C. at 260, 123 S.E. 2d at 479, quoting Jones v. Jones, 80 N.C. 246, 250 (1879).\nIn this case, the character and reputation evidence introduced on Dr. Cutchin\u2019s behalf should have been excluded. Dr. Cut-chin was not impeached or discredited. As indicated in plaintiffs brief, the cross examiner \u201csought information relating to when Dr. Cutchin saw the plaintiff, what he found, . . . and how he examined him, what he considered in this examination and what instructions were given to the plaintiff.\u201d The cross examiner did make reference to an alleged inconsistent statement in Dr. Cut-chin\u2019s deposition concerning whether Dr. Cutchin was called to the emergency room or went there without being called, but that question, in the context of the cross examination, did not impeach or discredit Dr. Cutchin. Dr. Cutchin\u2019s answer \u2014 \u201cI may have been called at home, but I believe that I was out to have dinner and then came back at that time. One or the other versions is correct, but I cannot tell which at this time\u201d \u2014did not help the cross examiner in any way. Moreover, as even Dr. Cutchin\u2019s attorneys admit in their brief, that question did not relate to a central issue in the case. The jury was dealing strictly with a medical question: What was the applicable standard of care? Whether Dr. Cutchin was a good or bad person or had a good reputation or character was not an issue. As suggested by plaintiff, \u201c[t]o allow evidence of character and reputation in situations as presented by this appeal, would be to open the door in any and every negligence action to a parade of character witnesses that the plaintiff, or the defendant, is a good or bad person, as the case may be.\u201d\nBecause we grant plaintiff a new trial for the reasons stated above, it is not necessary to discuss the plaintiffs remaining assignments of error.\nNew trial.\nJudges Arnold and Hill concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Davis & Atkins, and McLeod & Senter, P.A., by Joe McLeod, for plaintiff appellant.",
      "Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by James D. Blount, Jr., Nigle B. Barrow, Jr., and Timothy P. Lehan, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "RICHARD LEE HOLIDAY v. LAWRENCE M. CUTCHIN, M.D.\nNo. 823SC453\n(Filed 19 July 1983)\nWitnesses \u00a7 5.2\u2014 character evidence improperly allowed\nIn a medical malpractice action in which the jury was dealing strictly with a medical question of what was the applicable standard of care, the trial judge erred in allowing character and reputation evidence to be introduced on the behalf of defendant.\nAPPEAL by plaintiff from Winberry, Judge. Judgment entered 8 September 1981 in Superior Court, PITT County. Heard in the Court of Appeals 10 March 1983.\nDavis & Atkins, and McLeod & Senter, P.A., by Joe McLeod, for plaintiff appellant.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by James D. Blount, Jr., Nigle B. Barrow, Jr., and Timothy P. Lehan, for defendant appellee."
  },
  "file_name": "0369-01",
  "first_page_order": 401,
  "last_page_order": 405
}
