An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
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.
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.
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
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
In fact, defendants' evidence was that the standard of practice is that the general surgeon would never know what is in the TPN, despite signing the TPN form. Dr. McElwee testified:
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.
Plaintiff first contends that
(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.
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:
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 se argument on the definition of the "[t]he practice of medicine or surgery" in North Carolina General Statute § 90-1.1:
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
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 § 90-1.1 and 21 North Carolina Administrative Code 46.1414 require that prescription drugs be dispensed only upon the signature of a licensed physician. See N.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 before the 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
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 Groover persuasive 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. See N.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 se may 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. See N.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:
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 not to 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 reading orders which a doctor is legally required to sign is 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 sign a particular type of medical order, such as a prescription, that the doctor must also read or 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.
Plaintiff also contends that
(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.
For the foregoing reasons, we affirm.
AFFIRMED.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
