Opinion
No. COA14–603.
03-17-2015
James R. CRIDER, Sr. and wife, Kathy Crider, Plaintiffs, v. John Vincent CATTIE, M.D., Defendant.
Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence, and Carpenter & Flake, PLLC, by Jeffery Kent Carpenter, for plaintiffs-appellants. Shumaker, Loop & Kendrick, LLP, by Karen H. Stiles, Scott M. Stevenson, and Jacob R. Stump, for defendants-appellees.
Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence, and Carpenter & Flake, PLLC, by Jeffery Kent Carpenter, for plaintiffs-appellants.
Shumaker, Loop & Kendrick, LLP, by Karen H. Stiles, Scott M. Stevenson, and Jacob R. Stump, for defendants-appellees.
STROUD, Judge.
This case presents disturbing questions about the effects of increased fragmentation of medical care, as to both direct patient care and the business arrangements of the medical providers which provide that care. In this situation, the division of responsibility for various aspects of patient care seems to have resulted in the failure of any medical provider to notice, for approximately three months, that plaintiff Mr. Crider's Total Parenteral Nutrition formula was lacking a vital nutrient, thiamine, which the lack of would cause grievous harm. The absence of thiamine was clearly noted on the face of at least 49 forms signed by Dr. John Vincent Cattie, M.D. The jury determined that defendant Dr. John Vincent Cattie, M.D. was not negligent in this situation. Plaintiffs appeal the judgment entered upon the jury verdict finding plaintiff Mr. James Crider was not injured by the negligence of defendant Dr. John Vincent Cattie, M.D. and an order denying plaintiffs' motion for judgment notwithstanding the verdict and alternatively motion for a new trial. For the following reasons, we must affirm.
I. Procedural Background
On or about 20 September 2010, plaintiffs Mr. James Crider and his wife Ms. Cathy Crider filed an amended complaint against defendants John Vincent Cattie, M.D. (“Dr.Cattie”); Union Memorial Regional Medical Center, Inc. (“Union Memorial”); the Charlotte–Mecklenburg Hospital Authority (“CMHA”); Carolinas Union Healthcare, Inc.; and Morrison Management Specialists, Inc. alleging negligence which permanently and severely disabled plaintiff Mr. Crider, resulting in his “loss of neurocognitive function, urological dysfunction, the inability to rise or walk on his own, to feed himself, or to perform the basic life functions” and which caused plaintiff Ms. Crider permanent loss of consortium. On 22 November 2010, defendants Dr. Cattie and CMHA filed a motion to dismiss, requested a statement of monetary relief, denied many of the substantive allegations of plaintiffs' complaint, raised seven defenses, and made a declaration against arbitration. The parties then engaged in extensive discovery. According to the transcript, before trial began, a settlement was reached which resulted in the dismissal of claims against all defendants except Dr. Cattie and CMHA.
A jury trial was held, and at the close of plaintiffs' evidence defendant CMHA requested a directed verdict, which the trial court granted. On 12 April 2013, the trial court entered a judgment reflecting the jury's determination that plaintiff Mr. Crider was not injured by defendant Dr. Cattie's negligence. On 22 April 2013, plaintiffs filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. On 1 May 2013, the trial court entered an order denying plaintiffs' motions. Plaintiffs thereafter filed a notice of appeal from the 12 April 2013 judgment and 1 May 2013 order. On or about 6 September 2013, the trial court entered an order for a directed verdict for defendant CMHA.
II. Factual Background
The long and complex course of plaintiff Mr. Crider's hospitalization and treatment involved many procedures and medical professionals, so we will briefly summarize the medical evidence as relevant to the issues presented in this appeal as alleged by plaintiff. Plaintiff Mr. Crider was admitted to Union Memorial for surgery by Dr. Cattie to repair an abdominal hernia. Unfortunately, plaintiff Mr. Crider developed a serious infection and other complications after the surgery which required extensive additional treatment; ultimately, plaintiff Mr. Crider underwent at least 15 more surgeries. On 5 May 2007, defendant Dr. Cattie placed plaintiff Mr. Crider on Total Parenteral Nutrition (“TPN”).
Dr. Beverly Holcombe testified on behalf of the plaintiffs that TPN is
a very complex and complicated therapy.... It's int[ra]venous nutrition.... Many times patients become sick or they've had operations or they have they're born with diseases that they're unable to eat. And so they may require enteral nutrition, which is a tube that's placed in the body and they receive nutrients, very similar to what you might have in a diet. It just goes through a tube. Patients who have defects or diseases in their intestinal tract or had surgeries to remove large portions of their intestine or their intestines don't absorb the nutrients, that's called malabsorption, or they may have holes such as fistulas. So the[ir] gastrointestinal tracts either cannot absorb or there may be holes that have come out or their intestines may be blocked[.]
So any time the gastrointestinal tract cannot work and it cannot take in food that way, they may start on intravenous nutrition. Int[ra]venous nutrition is provided through a catheter or a special IV with the tip of it sitting just outside the heart, which is typically done for patients who are critically ill or going to require this type of nutrition for a long time.
Dr. Holcombe also testified that the components of the TPN are considered a drug by the FDA so they require a physician's prescription and that “[t]he provision of clinical nutrition is provided in a collaborative team approach. The team typically consists of a physician, dietician, pharmacist, the nurse and ma[y] include [others] such as a physical therapist or a respiratory therapist.”
According to Dr. Holcombe, MVI–12 is a commercially prepared mixture of vitamins which can be used in TPN. Plaintiff Mr. Crider's TPN orders were on pre-preprinted forms entitled “ADULT PARENTERNAL NUTRITION FORM” on which the base solution, electrolytes, and additives to be included into the TPN were selected by checking the appropriate boxes, filling in blanks, and in this case striking out words. Out of the 81 bags of TPN plaintiff Mr. Crider received, fewer than five had MVI–12 which contained thiamine; due to the lack of thiamine, plaintiff Mr. Crider developed Wernicke's encephalopathy which caused his current permanent disability. The absence of MVI–12, which included thiamine, was obvious on the face of the numerous TPN forms signed by defendant Dr. Cattie.
Defendant Dr. Cattie testified that he did not read any of the 49 TPN forms which bear his signature; he just signed them. In fact, Dr. Cattie testified that he was “certain” that he “never looked at a single one of those orders[.]” Dr. Cattie relied entirely upon the dietician to determine the components of the TPN, despite the fact that his signature was legally required to dispense the TPN as a prescription drug. Defendants' witnesses addressing the standard of care for a general surgeon in this situation testified that Dr. Cattie's failure to read the TPN forms he signed is consistent with the applicable standard of care. For example, Dr. Solomkin testified that a doctor's signature is just
part of the administrative process of administering, the hospital running itself, if you will. And it's not a communications tool. And to say that because someone signed an order in accordance with the hospital bylaws and laws of [the] State of North Carolina, carries no other information. It doesn't mean they accept the fact that it's been communicated. That's not how it works.
Q: So, really a doctor doesn't—other than the fact that you're saying that the only way that the pharmacy will fill that order is a doctor signs it, it's your belief, if I understand you correctly, that it's an appropriate standard of care for the doctor not to look at the components of that order when he signs it?
A. I think that's a statement of real[i]ty. And, clearly, the state—the practice of medicine and, therefore, I assume the standard of care is what happened here.
In fact, defendants' evidence was that the standard of practice is that the general surgeon would neverknow what is in the TPN, despite signing the TPN form. Dr. McElwee testified:
Q. And knowing the practice patterns of your partners, to your knowledge, were any of your partners at the Charlotte Surgical Group in 2007 paying any attention whatsoever to the components of the TPN bag?
....
THE WITNESS: I will tell you I never know what goes in there and neither do my partners. We rely on our dietary consults to put the right things in there.
Thus, defendants' argument, which the jury accepted, is that defendant Dr. Crider had no duty to read the TPN forms despite the fact that he was required by law to sign them as the prescribing physician. According to defendants, the TPN form is just part of the “administrative process” and is not an accepted way in which the dietician and physician “communicate” with one another, so the physician need not read it.
Presumably, there are other ways that the patient care team—the physician, dietician, nurses, and pharmacist—do communicate with one another about the details of patient care. Unfortunately, those methods of communication, if any, also failed in this instance, but no argument has been raised about those methods in this appeal.
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II. Directed Verdict
Plaintiff first contends that
the trial court erred in denying plaintiffs' motions for directed verdict and for judgment notwithstanding the verdict as to defendant Cattie, where Dr. Cattie is liable as a matter of law on the grounds that he signed the irrefutably erroneous TPN orders and it is uncontroverted that the removal of vitamins from James Crider's long-term TPN caused him to develop Wernicke's encephalopathy.
(Original in all caps.) Plaintiffs contend that defendant Dr. Cattie's failure to read the TPN forms he signed, and thus his failure to learn of and correct the absence of thiamine from the TPN forms, was negligence per se.
A motion for directed verdict is to test the legal sufficiency of the evidence to take the case to the jury. In passing on a motion for directed verdict, the trial court must consider the evidence in the light most favorable to the nonmovant, and conflicts in the evidence together with inferences which may be drawn therefrom must be resolved in favor of the nonmovant. A verdict may never be directed when there is conflicting evidence on contested issues of fact.
....
Defendant would be entitled to a directed verdict and, thus a judgment notwithstanding the verdict only if the evidence, when considered in the light most favorable to plaintiff, fails to show the existence of all the elements required to establish an action[.]
DeHart v. R/S Financial Corp., 78 N.C.App. 93, 98–99, 337 S.E .2d 94, 98 (1985) (citations omitted), disc. review denied, 316 N .C. 376, 342 S.E.2d 893 (1986). “On appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury.” Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God, 136 N.C.App. 493, 498–99, 524 S.E.2d 591, 595 (2000) (citation omitted).
Violation of a statute which creates a duty intended for the protection of a certain group is negligence per se:
When a statute imposes a duty on a person for the protection of others, it is a public safety statute and a violation of such a statute is negligence per se. However, not every statute purporting to have generalized safety implications may be interpreted to automatically result in tort liability for its violation. The party relying on an ordinance violation must show they are included in the class of entities or individuals the ordinance was adopted to protect.
Walden v. Morgan, 179 N.C.App. 673, 680, 635 S.E.2d 616, 622 (2006) (citations, quotation marks, and brackets omitted).
Plaintiffs based their negligence per seargument on the definition of the “[t]he practice of medicine or surgery” in North Carolina General Statute § 90–1.1 :
The practice of medicine or surgery, for purposes of this Article, includes any of the following acts:
....
b. Offering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of any other individual.
N.C. Gen.Stat. § 90–1.1(5) (2007). In addition, plaintiffs note that 21 North Carolina Administrative Code 46.1414 provides that a pharmacist
[s]hall dispense medications from a health care facility pharmacy only upon receipt of a medication order. A mechanism shall be in place to verify the authenticity of the medication order. Oral orders shall be put in writing immediately and signed within the time frame established by regulatory agencies and health care facility policies and procedures.
(2) All medication orders shall be received and reviewed by a pharmacist and, at a minimum, shall contain the:
(A) patient's name, location and other identifying information such as history or medical records number; medication name, strength,
(B) dosage form, route of and directions for administration. In the absence of a facility policy on interpretation of routes of administration, the route of administration must be specified;
(C) date the order was written; and
(D) prescriber's signature as set out in Subparagraph (a)(1) of this Rule (may include electronic signature or verification).
21 N.C. Admin. Code 46.1414(a) (2006).
Essentially, plaintiffs argue that North Carolina General Statute § 90–1.1 and 21 North Carolina Administrative Code 46.1414 constitute safety regulations intended to protect patients from harm from prescription medications ordered by someone who is not authorized by law to do so. North Carolina General Statute § 901.1 and 21 North Carolina Administrative Code 46.1414 require that prescription drugs be dispensed only upon the signature of a licensed physician. SeeN.C. Gen.Stat. § 90–1.1(5) ; 21 N.C. Admin. Code 46.1414(a). Plaintiffs argue that permitting any medical professional who is not a physician, and in this instance a dietician, to create orders for prescription medications which are signed by the physician only as a formality and without having read the order, is tantamount to allowing the unauthorized practice of medicine.
Plaintiffs have not cited any North Carolina case which determines that medical malpractice may be established by negligence per se.Plaintiffs instead argue that we should adopt the rationale of the Georgia Court of Appeals in Groover v. Johnston, 625 S.E.2d 406 (Ga.App.2005) which determined that the doctor defendant's violation of a Georgia statute in delegating the authority to select controlled drugs to nurses without complying with the applicable statute was negligence per se. See Groover, 625 S.E.2d 406. The Georgia Court of Appeals found that the statute at issue required a written protocol beforethe delegation of authority to nurses could occur and that in that case there was not a written protocol in place. Id.at 408–10. The defendant doctor testified that
he knew of no written protocol, and that his standing verbal orders gave the nurses discretion to administer narcotics to patients in the PACU without asking him as necessary to get the pain under control. According to Johnston, when patients were discharged from the PACU and sent to a floor, his customary practice was to sign the chart, indicating that he was approving the medications already administered. He believed that his signature converted his verbal standing order into a written order, albeit after the fact. It was his impression that this satisfied the provision in the hospital bylaws requiring such orders to be in writing.
Id.at 409 (quotation marks omitted). The Georgia Court of Appeals determined that the doctor defendant's “impression” was wrong; a prior written protocol was required by law, and failure to comply was negligence per se. See id.at 410.
Although plaintiffs' argument is compelling, we do not find Grooverpersuasive in this case. First, North Carolina General Statute § 90–1.1 did not become effective until October of 2007. N.C. Gen.Stat. § 90–1.1 Editor's Note. Plaintiff Mr. Crider's medical issues and defendants' involvement began in April of 2007 and the permanent damage to plaintiff Mr. Crider appears to have been completed, at the latest, by September 2007. Thus, North Carolina General Statute § 90–1.1 cannot be applicable because it was not in effect at the relevant times. See id.
Furthermore, even assuming North Carolina General Statute § 90–1.1 applied, the Georgia statute was an extremely specific statute directly addressing the authority of a doctor in a particular situation and how that authority could properly be delegated. See Groover, 625 S.E.2d at 408. The Georgia Court of Appeals noted that the purpose of the statute was “to meet the health care needs of indigent and rural Georgians, where an insufficient number of practicing physicians made expanded nurse care necessary.” Id.at 409. The North Carolina statute upon which plaintiffs rely is simply the definition of the practice of medicine. SeeN.C. Gen.Stat. § 90–1.1(5). Although in a broad sense, Chapter 90, which governs the licensing and regulation of physicians and other health care providers, surely is intended to protect the public's safety, the definition of the practice of medicine itself is not a public safety statute upon which negligence per semay be established as the definition is not aimed at any particular wrongdoing nor does it include particular instructions as to compliance. See id.
In addition, this is a medical malpractice case, and statutes and case law establish specific requirements regarding the standard of care in medical malpractice cases. SeeN.C. Gen.Stat. § 90–21.12 (2007). North Carolina General Statute § 90–21.12 directs how the standard of care for health care providers may be proved in this situation:
In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not 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 at the time of the alleged act giving rise to the cause of action.
N.C. Gen.Stat. § 90–21.12 (2007).
Plaintiffs do not raise any issue on appeal regarding the qualifications of defendant's expert witnesses who testified as to the applicable standard of care nor do plaintiffs challenge any of their testimony as beyond the scope of proper expert testimony. “A verdict may never be directed when there is conflicting evidence on contested issues of fact.” DeHart, 78 N.C.App. at 98, 337 S.E .2d at 98. Plaintiffs concede that there was conflicting evidence regarding the standard of care and whether Dr. Cattie complied with that standard. Dr. Cattie presented extensive evidence that the standard of care for “members of the same health care profession with similar training and experience situated in the same or similar communities” is notto read the TPN forms they sign. N.C. Gen.Stat. § 90–21.12. Defendants' medical experts, whose qualifications and testimony were not challenged by plaintiffs on appeal, testified that defendant Dr. Cattie's actions were well within the standard of care in the profession.
In actuality, most of plaintiffs' arguments go to the seeming absurdity of defendant Dr. Cattie's evidence that he never reads, and indeed need not read, the TPN forms he signs. Plaintiffs could have sought to bar defendants' experts' testimonies as to the standard of care for general surgeons on multiple grounds. For example, plaintiffs did not argue that the scope of the expert testimonies was beyond medical expertise and was essentially addressing a question of law, since there may be a question as to whether readingorders which a doctor is legally required to signis even within the purview of medical expert testimony. In every other legal context in which we can find law addressing the issue, the rule is well-established that all individuals, including the illiterate, are responsible for being aware of the contents and effect of the documents they sign. See, generally, e.g., School Committee v. Kesler, 67 N.C. 443, 448 (N.C.1872) (“If a grantee, although an illiterate man, executes a deed without demanding that it should be read, the deed takes effect [.]”); Dellinger v. Gillespie, 118 N.C. 737, 738–39, 24 S.E. 538, 539 (1896) (“The defendant could read and write, and he signed the paper, according to his own testimony, voluntarily.... It was pure negligence in the defendant not to have read the contract.”); Colt v. Kimball, 190 N.C. 169, 172, 129 S.E. 406, 408 (1925) (“It is the defendant's duty to read the contract, or have it read to him, and his failure to do so, in the absence of fraud, is negligence for which the law affords no redress. The defendant's duty to read or have read to him the contract, is a positive duty of which he is not relieved, except in cases of fraud.”). It does seem implicit in the statutory requirement that a doctor signa particular type of medical order, such as a prescription, that the doctor must also reador at least be aware of the contents of what he is signing, but defendants' medical experts testified that this is not the standard of practice for general surgeons as to TPN forms. Plaintiffs failed to challenge the admission of the testimonies of the defendants' experts on appeal. As defendants presented evidence that they did not breach the standard of care, and the jury apparently found defendants' evidence credible, plaintiffs' motion for a directed verdict and JNOV were properly denied. See DeHart, 78 N.C.App. at 98–99, 337 S.E.2d at 98. This argument is overruled.
III. Defendant CMHA
Plaintiff also contends that
the trial court erred in granting defendant CHMA's motion for directed verdict at the close of plaintiffs' evidence and in denying plaintiffs' motion for new trial as to CMHA, where the court made numerous erroneous evidentiary rulings during the course of the trial and improperly quashed the subpoena testificandumand duces tecumto Michael Tarwater without any statutory basis.
(Original in all caps.) During the trial, the trial court granted defendant CMHA's motion for a directed verdict explicitly because it did not find a “direct agency relationship” between defendant Dr. Cattie and defendant CMHA. However, on appeal, all of plaintiffs' claims of negligence are based upon defendant Dr. Cattie's failure to read the TPN forms.
Without established negligence on the part of defendant Dr. Cattie, defendant CMHA's negligence cannot be shown, so it is irrelevant what information other witnesses may have provided regarding the corporate structure of defendant CMHA and defendant Dr. Cattie's relationship to CMHA. Here, the jury determined defendant Dr. Cattie was not negligent by signing the TPN forms without reading them, and thus defendant CMHA could not responsible for Dr. Cattie's negligence nor could defendant CMHA be negligent for its failure to put systems in place to force defendant Dr. Cattie to read the TPN forms. Again, we are disturbed by the assertion that as a matter of practice and standard of care, doctors need not read what they are required by law to sign, but this result is consistent with the expert medical evidence which was accepted by the jury and unchallenged on appeal. Defendant CMHA was properly allowed a directed verdict as no negligence was found on the part of defendant Dr. Cattie and no other cognizable theories of negligence have been argued before this Court. This also means that the trial court did not err in denying plaintiffs' motion for a new trial on these grounds. Furthermore, whether the trial court properly quashed subpoenas is immaterial, based on the arguments before us, because without defendant Dr. Cattie's negligence, plaintiffs have no valid argument that defendant CMHA was negligent, regardless of the exact business relationship between defendant Dr. Cattie and defendant CMHA. This argument is overruled.
IV. Conclusion
For the foregoing reasons, we affirm. AFFIRMED.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by plaintiffs from judgment entered 12 April 2013 and order entered 1 May 2013 by Judge F. Lane Williamson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 4 November 2014.