Vassey v. Burch

Judge WELLS

dissenting.

The plaintiff in this case presented a sufficient forecast of evidence for him to succeed under two theories of hospital negligence — respondeat superior and corporate negligence. Upon motion for summary judgment the burden is on the moving party to show that no genuine issue as to any material fact exists. Conner Co. v. Spanish Inns, 294 N.C. 661, 242 S.E. 2d 785 (1978). The movant can satisfy his burden either by proving that an essential element of the opposing party’s claim is nonexistent or by showing, through discovery, that the opposing party cannot produce evidence to support an essential element of its claim. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E. 2d 795 (1974). Summary judgment is rarely appropriate in negligence actions. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972).

*228The majority first bases its opinion on the failure of the plaintiff appellant to include interrogatories which may have been relied upon by the trial court in the record on appeal. The record does, however, contain plaintiff’s verified complaint and three of plaintiff’s affidavits in opposition to defendant’s motion for summary judgment. Defendant submitted no affidavits in support of its motion for summary judgment. Plaintiff’s affidavits allege that the personnel staffing defendant’s emergency room at no time performed a physical examination of plaintiff despite the fact that plaintiff was extremely nauseated, vomited violently and felt an intensified pain in his abdomen. The affidavit of Dr. Stewart Todd stated that the accepted medical practice for the treatment of such symptoms involved a check for an appendicitis, including the taking of a white blood cell count. Thus, plaintiff had presented a substantial forecast of evidence showing that his injuries were caused by a breach of duty on the part of the defendant hospital. Plaintiff’s failure to include his answers to defendant’s interrogatories no doubt leaves the record incomplete, but the disputed material issues of fact are nevertheless plain to see.

The majority also bases its decision upholding the granting of defendant’s motion for summary judgment on the ground that plaintiff did not present a sufficient forecast of evidence that nurses employed by the defendant had breached their duty of reasonable care to the plaintiff. The evidence shows that the nurse who cared for plaintiff advised the only physician she telephoned that plaintiff had no symptoms of appendicitis. In addition, plaintiff’s affidavits show that the physician left the ultimate decision to the nurse. Plaintiff’s mother stated that the physician, over the telephone, prescribed two shots, and ordered that plaintiff be kept thirty minutes and sent home if he seemed to be better. The shots were administered and in thirty minutes plaintiff was sent home. This evidence is sufficient to present a forecast of evidence showing that defendant may be liable to the plaintiff under the theory of respondeat superior.

We recently held that North Carolina has adopted the doctrine of “corporate negligence” for hospital liability. Bost v. Riley, 44 N.C. App. 638, 261 S.E. 2d 391 (1980), disc. rev. denied, 300 N.C. 194, — S.E. 2d — (6 May 1980). Under this theory, a hospital owes its patients a direct duty to use reasonable care in their treatment. The affidavit of Dr. Todd presents a sufficient *229forecast of evidence of the failure of the defendant hospital to use reasonable care in the emergency room treatment of plaintiff.

Summary judgment is an extreme remedy, and should be awarded only where the truth is quite clear and undisputed. Edwards v. Means, 36 N.C. App. 122, 243 S.E. 2d 161 (1978), disc. rev. denied, 295 N.C. 260, 245 S.E. 2d 777 (1978). I would reverse the trial court’s granting of summary judgment in the defendant hospital’s favor.