{ "id": 8526880, "name": "BETTY LEDFORD PARKS and JOHNNY A. PARKS v. H. B. PERRY, JR., FRANKLIN B. WILKINS, LOUISE GODWIN, and HUGH CHATHAM MEMORIAL HOSPITAL", "name_abbreviation": "Parks v. Perry", "decision_date": "1984-05-01", "docket_number": "No. 8323SC630", "first_page": "202", "last_page": "209", "citations": [ { "type": "official", "cite": "68 N.C. App. 202" } ], "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": "180 S.E. 2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "482" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553055 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0119-01" ] }, { "cite": "221 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "28 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549685 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/28/0418-01" ] }, { "cite": "13 S.E. 2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "219 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621551 ], "year": 1941, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/219/0178-01" ] }, { "cite": "166 S.E. 285", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1932, "pin_cites": [ { "page": "289-90" }, { "page": "289" } ], "opinion_index": 0 }, { "cite": "203 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611536 ], "year": 1932, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0384-01" ] }, { "cite": "274 S.E. 2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571109, 8571036, 8571133, 8571006, 8571071 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0722-04", "/nc/301/0722-02", "/nc/301/0722-05", "/nc/301/0722-01", "/nc/301/0722-03" ] }, { "cite": "270 S.E. 2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "520" }, { "page": "520" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519725 ], "year": 1980, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0126-01" ] }, { "cite": "269 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "301 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561139 ], "year": 1980, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0068-01" ] }, { "cite": "278 S.E. 2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "303 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572916 ], "year": 1981, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0303-01" ] } ], "analysis": { "cardinality": 737, "char_count": 15647, "ocr_confidence": 0.796, "pagerank": { "raw": 2.2685090023378795e-07, "percentile": 0.7834941342140025 }, "sha256": "c795c49d572cefa5336126ec5e705e7d2c682657230a98f15e8c8d0f2dc004c6", "simhash": "1:e2d87d5b2581a425", "word_count": 2586 }, "last_updated": "2023-07-14T17:24:21.303361+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge Eagles concur." ], "parties": [ "BETTY LEDFORD PARKS and JOHNNY A. PARKS v. H. B. PERRY, JR., FRANKLIN B. WILKINS, LOUISE GODWIN, and HUGH CHATHAM MEMORIAL HOSPITAL" ], "opinions": [ { "text": "BRASWELL, Judge.\nBetty Parks awoke after surgery with a numb little finger and a partially numb ring finger on her right hand. Mrs. Parks and her husband, who has also sued for loss of consortium, contend that she suffered severe ulnar nerve damage in her right arm at the level of the elbow due to the negligence of Dr. H. B. Perry, Jr. (Chief Surgeon), Dr. Franklin B. Wilkins (Assistant Surgeon), Louise Godwin (Nurse Anesthetist), and the Hugh Chat-ham Memorial Hospital. Following discovery, each defendant filed a motion for summary judgment which was granted by the trial court. The plaintiffs have resolved all matters against the defendant, Dr. H. B. Perry, Jr., and have filed a voluntary dismissal of their action against him. The plaintiffs appealed from the summary judgment motions granted in favor of the remaining three defendants.\nOn 30 September 1979, Betty Parks was admitted to the Hugh Chatham Memorial Hospital in Elkin, North Carolina, under the care of Dr. H. B. Perry, Jr. The next morning, Dr. Perry, with Dr. Wilkins assisting, performed a vaginal hysterectomy on Mrs. Parks. She was placed under general anesthesia and in the lithot-omy position by Louise Godwin, the nurse anesthetist.\nThe plaintiffs evidence showed that immediately prior to her operation on 1 October 1979 Mrs. Parks had no neurological defects in her right fingers, hand, wrist, arm, and in particular, had no damage to her right ulnar nerve. However, on 2 October 1979, during her first moments of consciousness after the surgery, Mrs. Parks experienced numbness and weakness in the fourth and fifth fingers of her right hand. Mrs. Parks repeatedly told Dr. Perry and the nurses about the numbness in her hand. Dr. Perry stated that it would eventually go away. When the numbness did not disappear, Mrs. Parks was referred to several other doctors who determined that she had suffered ulnar nerve damage in her right arm at the elbow. Further surgery was performed by Dr. William Brown, a neurosurgeon, on 12 December 1979, but the damage could not be corrected.\nAs a result of this damage to her ulnar nerve, several muscles in Mrs. Parks\u2019 right hand have deteriorated so that she is unable to use her fourth and fifth fingers, causing her great difficulty in gripping objects and in writing. Because of the permanent damage to her hand, Mrs. Parks could not return to her job with Central Carolina Telephone.\nThe plaintiffs contend that the permanent injury to Mrs. Parks\u2019 ulnar nerve was sustained during the vaginal hysterectomy. The plaintiffs expert witness, Dr. Edward Hayes Camp, testified that in his opinion Mrs. Parks\u2019 injury which caused the partial paralysis in her right hand occurred during the 1 October 1979 operation due to improper positioning or monitoring of her right arm by the nurse anesthetist.\nThe defendant Godwin contends that because the plaintiffs\u2019 entire case rests upon expert testimony it is insufficient as a matter of law to create an inference of actionable negligence. The defendant Wilkins argues that summary judgment in his favor was proper because the evidence shows he took no part in positioning the patient and had no duty to inspect her arm position. The defendant-hospital asserts that the plaintiffs have produced no evidence sufficient to show it was guilty of actionable negligence or that Nurse Godwin and Dr. Wilkins were agents of the hospital.\nThe sole question presented for our review is whether the trial court erred in granting summary judgment in favor of the defendants. Summary judgment is proper, according to G.S. 1A-1, Rule 56, when the movant establishes \u201c \u2018that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u2019 \u201d Easter v. Hospital, 303 N.C. 303, 305, 278 S.E. 2d 253, 255 (1981), quoting Vassey v. Burch, 301 N.C. 68, 72, 269 S.E. 2d 137, 140 (1980). In Easter, also a medical malpractice action, the Supreme Court recognized the general rule that only in exceptional negligence cases is summary judgment appropriate. Id.\nWe begin our discussion with the alleged liability of the defendant-nurse, Louise Godwin, because, as this defendant concedes, if negligence occurred then she is the primary tortfeasor. Nurse Godwin contends that the plaintiffs have offered no evidence of actionable negligence, except that which might be inferred from the doctrine of res ipsa loquitur. Generally, \u201c[r]es ipsa applies when direct proof of the cause of an injury is not available, the instrumentality involved in the accident is under the defendant\u2019s control, and the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission.\u201d Russell v. Sam Solomon Co., 49 N.C. App. 126, 130, 270 S.E. 2d 518, 520 (1980), disc. rev. denied, 301 N.C. 722, 274 S.E. 2d 231 (1981). In her brief Nurse Godwin claims that \u201c[t]he only types of malpractice cases in which the doctrine of res ipsa has been applied in North Carolina are either \u2018foreign object\u2019 cases or cases in which there is manifest such an obviously [sic] gross want of care and skill as to afford, of itself, an almost conclusive inference of negligence.\u201d See Pendergraft v. Royster, 203 N.C. 384, 393, 166 S.E. 285, 289-90 (1932). The reason given for the doctrine\u2019s limited availability is the principle that a health care provider is not an insurer of results and that no presumption of negligence can arise from the mere fact of an accident or injury. Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E. 2d 242, 245 (1941); see also Russell, supra, at 131, 270 S.E. 2d at 520. However, the North Carolina Supreme Court has long recognized that\nwhere proper inferences may be drawn by ordinary men from proved facts which give rise to res ipsa loquitur without infringing this principle, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things ....\nMitchell, supra. In Pendergraft, supra, at 393, 166 S.E. at 289, the Court recognized the doctrine\u2019s importance \u201c \u2018where the injury is received while the patient is unconscious . . . because under such circumstances the patient would not be able to testify as to what had happened, whereas the physician could.' \u201d (Citation omitted.)\nThe test of the applicability of res ipsa loquitur in medical malpractice cases is twofold: (1) the injurious result must rarely occur standing alone and (2) the result must not be an inherent risk of the operation. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers \u00a7 333 (1981). With regard to the test\u2019s first prong the plaintiffs\u2019 expert witness, Dr. Edward Hayes Camp, in his deposition testified after reviewing all of Mrs. Parks\u2019 hospital records and those records made by the consultants who later examined her that in his opinion Mrs. Parks\u2019 paralysis was caused by pressure to her ulnar nerve occurring during the course of the hysterectomy. He further stated that although there was nothing Mrs. Parks could have done to prevent or avoid the injury, the injury could have been prevented by proper positioning and maintenance of the arm\u2019s position during the operation. Nurse Godwin conceded that it was her responsibility to position and monitor Mrs. Parks\u2019 arms. Dr. Camp also explained that this injury does not occur by itself, for instance by falling asleep on one\u2019s arm. He stated that it only occurs when one is completely unconscious and prolonged pressure of a constant nature is applied to a certain small vulnerable area. A sleeping patient, or any person for that matter, is caused sufficient discomfort from the lack of circulation in the limb to cause him to move his arm and remove the pressure. Likewise, a patient after an operation whose arms are no longer bound in one position does not lie absolutely still in the normal course of recovery from general anesthesia, but turns from side to side relieving any harmful pressure on this nerve.\nThe second prong of the test requires that the injurious result not be an inherent risk of the operation. Both Dr. Camp and Nurse Godwin stated that although this type of nerve damage is a possibility in any operation where general anesthesia is used, it is not common and not a particular hazard in gynecological surgery. Dr. Camp explained that the major risk peculiar to a vaginal hysterectomy is placing the patient in the lithotomy position which, if improperly done, can cause nerve damage to the lower legs.\nThus, both prongs of this test to determine the applicability of res ipsa loquitur in malpractice cases have been satisfied. There is also sufficient evidence to support the remaining two traditional elements of the res ipsa doctrine. First of all, there is no direct proof of the cause of the injury available to the plaintiff. The only evidence that Mrs. Parks can testify to is that before the general anesthesia she had a healthy functional right hand, yet after the operation she awoke with numb fingers as a result of damage to her ulnar nerve. Similarly, neither Nurse Godwin nor the other defendants can offer direct evidence as to how the injury occurred. Secondly, the defendants admit that the instrumentality involved, positioning and monitoring Mrs. Parks\u2019 arms, was under the defendant Godwin\u2019s control. We hold therefore that the use of res ipsa loquitur in this case is justified. With the benefit of this inference of negligence, there remains a genuine issue of fact for the jury with respect to Nurse Godwin\u2019s liability. We hold the trial court improperly granted summary judgment in Nurse Godwin\u2019s favor.\nThe liability of Dr. Wilkins, the assistant surgeon, however, is another matter. There is no evidence in the record before us that Dr. Wilkins had a duty to inspect or monitor the position of the patient\u2019s arms. Even if such evidence existed, the law does not impose such a duty on the chief surgeon, much less the assisting surgeon. Starnes v. Hospital Authority, 28 N.C. App. 418, 221 S.E. 2d 733 (1976). The plaintiffs\u2019 expert, Dr. Camp, testified that the assisting surgeon stays down at the base of the operating table with the Chief Surgeon during a vaginal hysterectomy. Thus, because of the operating drape, he would not have the opportunity or the duty to inspect the patient\u2019s upper body, including the arms. Dr. Camp stated that the responsibility for the patient\u2019s arms rests with the nurse anesthetist who positions and monitors the arms. Dr. Camp further stated that the assisting physician has no role or duty with respect to the patient in the post-operative follow-up. Even with res ipsa supplying the requisite degree of proof of negligence to create a jury question, Dr. Wilkins cannot be held liable if he had no duty to inspect the position of the patient\u2019s arms or to supervise Nurse Godwin\u2019s work. We hold that summary judgment in Dr. Wilkins\u2019 favor was properly granted.\nFinally, we hold the trial court erred by granting the defendant-hospital\u2019s motion for summary judgment. From the record before us, we believe there is a genuine issue of fact as to the hospital\u2019s liability on agency principles. In Nurse Godwin\u2019s answer, she admits that she \u201cmay have been an agent, servant, or employee of one or more of the other defendants.\u201d In her deposition, however, Nurse Godwin states that her relationship with the hospital was that of an independent contractor for Latipac, Inc. She asserted that \u201cI considered myself hired by Latipac to perform a contractual job on a day-to-day basis.\u201d Whether or not Nurse Godwin was an independent contractor or an agent for the hospital is yet to be determined. In turn, whether the hospital is liable under the theory of respondeat superior is also a genuine issue of fact to be decided by the jury.\nThe defendants contend that Hoover v. Hospital, Inc., 11 N.C. App. 119, 180 S.E. 2d 479 (1971), a case denying recovery to a plaintiff who also suffered nerve damage in his arm while unconscious from anesthesia during surgery, should control. This Court held in Hoover that summary judgment in favor of the defendants doctor and hospital was proper because \u201cthe plaintiff has taken advantage of the discovery procedures available and has still been unable to obtain evidence as to when and how the injury occurred and who or what caused it.\u201d Id. at 123, 180 S.E. 2d at 482. This case is distinguishable from the present case because Mr. and Mrs. Parks through their expert witness did offer evidence tending to show that the injury occurred during the hysterectomy due to the mispositioning of Mrs. Parks\u2019 right arm by Nurse Godwin. Therefore, we hold that summary judgment as to defendants Godwin and the Hugh Chatham Memorial Hospital is\nReversed.\nSummary judgment granted in favor of the defendant Wilkins is\nAffirmed.\nChief Judge VAUGHN and Judge Eagles concur.", "type": "majority", "author": "BRASWELL, Judge." } ], "attorneys": [ "Frye, Booth, Porter & Van Zandt by John P. Van Zandt, III, for plaintiff appellants.", "Bell, Davis & Pitt by William Kearns Davis and Joseph T. Carruthers for defendant appellee, Franklin B. Wilkins.", "Womble, Carlyle, Sandridge & Rice by Jimmy H. Barnhill and Richard T. Rice for defendant appellee, Louise Godwin.", "Harris, Cheshire, Leager & Southern by F. Stephen Glass and Claire L. Moritz for defendant appellee, Hugh Chatham Memorial Hospital" ], "corrections": "", "head_matter": "BETTY LEDFORD PARKS and JOHNNY A. PARKS v. H. B. PERRY, JR., FRANKLIN B. WILKINS, LOUISE GODWIN, and HUGH CHATHAM MEMORIAL HOSPITAL\nNo. 8323SC630\n(Filed 1 May 1984)\n1. Physicians, Surgeons, and Allied Professions \u00a78 12, 16\u2014 nerve damage to arm while under general anesthesia \u2014 negligence of nurse anesthetist \u2014 applicability of res ipsa loquitur\nIn a medical malpractice action in which a plaintiff sought to recover for nerve damage in her right arm which she alleged occurred during surgery for a hysterectomy, the trial court erred in granting defendant nurse anesthetist\u2019s motion for summary judgment. Plaintiffs met their burden of proving the applicability of the doctrine of res ipsa loquitur since (1) there was no direct proof of the cause of the injury available to the plaintiff or the defendant, and (2) the defendants admit that the instrumentality involved, positioning and monitoring the female plaintiffs arms, was under the defendant nurse anesthetist\u2019s control. With the benefit of the inference of negligence which the doctrine of res ipsa loquitur provides, there remained a genuine issue of fact for the jury with respect to the nurse\u2019s liability.\n2. Physicians, Surgeons, and Allied Professions \u00a7 16.1\u2014 insufficiency of evidence of negligence of assistant surgeon in medical malpractice action\nIn a medical malpractice action in which the female plaintiff suffered nerve damage in her arm following surgery for a hysterectomy, the trial court properly granted summary judgment for an assistant surgeon since the surgeon could not be held liable if he had no duty to inspect the position of the patient\u2019s arms or to supervise the nurse anesthetist\u2019s work, and there was no evidence that the assistant surgeon had such a duty.\n3. Hospitals \u00a7 3.2\u2014 liability of hospital for negligence of nurse anesthetist \u2014 summary judgment improper\nIn a medical malpractice action, the trial court erred by granting the defendant-hospital\u2019s motion for summary judgment where there was a genuine issue of fact as to the hospital\u2019s liability for the negligence of a nurse anesthetist on agency principles.\nAPPEAL by plaintiffs from Collier, Judge. Order entered 18 January 1983 in Superior Court, Wilkes County. Heard in the Court oi Appeals 9 April 1984.\nFrye, Booth, Porter & Van Zandt by John P. Van Zandt, III, for plaintiff appellants.\nBell, Davis & Pitt by William Kearns Davis and Joseph T. Carruthers for defendant appellee, Franklin B. Wilkins.\nWomble, Carlyle, Sandridge & Rice by Jimmy H. Barnhill and Richard T. Rice for defendant appellee, Louise Godwin.\nHarris, Cheshire, Leager & Southern by F. Stephen Glass and Claire L. Moritz for defendant appellee, Hugh Chatham Memorial Hospital" }, "file_name": "0202-01", "first_page_order": 234, "last_page_order": 241 }