Barbara L. LINDSEY
v.
THE CLINIC FOR WOMEN, P. A., Dr. A. H. Westfall and Dr. Hugh McAllister, Individually.
No. 7716SC927.
Court of Appeals of North Carolina.
April 3, 1979.*307 Daughtry, Hinton & Woodard by N. Leo Daughtry and W. Kenneth Hinton, Smithfield, for plaintiff appellee.
Anderson, Broadfoot & Anderson by H. W. Broadfoot, Fayetteville, for defendant appellants.
PARKER, Judge.
Defendants first assign error to the denial of their motion for a directed verdict made when plaintiff rested her case and renewed at the close of all of the evidence. Plaintiff contends that this assignment of error should be disregarded because defendants failed to state the grounds for their motion as required by G.S. 1A-1, Rule 50(a). That rule provides that "[a] motion for a directed verdict shall state the specific grounds therefor." We have held this provision to be mandatory. Wheeler v. Denton, 9 N.C.App. 167, 175 S.E.2d 769 (1970). "However, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties." Anderson v. Butler, 284 N.C. 723, 729, 202 S.E.2d 585, 588 (1974). In the present case it seems obvious that the motion was made on the grounds that the evidence was insufficient to show actionable negligence on the part of the defendants. This must have been apparent to the court and to the plaintiff. Certainly nothing in the record suggests to the contrary. Therefore, we elect to review the trial court's action in denying defendants' motion. In the trial court's ruling, we find error.
Plaintiff's theory of this case, as expressed in her brief and by her counsel on oral argument, is that, viewing the evidence in the light most favorable to the plaintiff, it was sufficient to warrant a jury in finding the following facts. Defendants, physicians specializing in obstetrics and gynecology, accepted plaintiff as their patient and agreed to care for her through her pregnancy. On the evening of 3 June 1974 her membrane ruptured. On the following day she reported this to defendant McAllister by telephone. On 5 June she was examined by defendant Westfall. At that time she was not in pain and he sent her home. On 6 June she started having labor pains. She also experienced a discharge of meconium, which could not have occurred unless her membrane had first been ruptured. On 7 June she reported this to defendants' nurse and was examined by Dr. McAllister. He sent her home. She continued to have labor pains until 13 June, at which time the child was stillborn. The macerated condition of the child's skin indicated it had been dead twenty-four to forty-eight hours before delivery. *308 The fetus died of severe amnionitis which went undetected by defendants. Amnionitis also prolonged plaintiff's recovery and prolonged her pain and suffering. In the opinion of plaintiff's expert witness, the course of conduct pursued by defendant doctors did not conform with approved medical practices and treatment by physicians specializing in the field of obstetrics and gynecology in Lumberton, N.C.
The difficulty with plaintiff's theory is that, even if it be granted that the evidence would support a finding of the foregoing facts, still there is no evidence that anything which defendants did or failed to do in the course of their care of the plaintiff either caused or could have prevented the amnionitis, which plaintiff contends caused the death of her child and her own prolonged suffering. Her expert witness testified that in his opinion the course of treatment outlined in long hypothetical questions "did not conform with approved medical practices and treatment of a physician specializing in the field of Obstetrics and Gynecology," but he never testified what in his opinion "approved medical practices" would have been in this case. He never testified as to precisely what the defendants did that in his opinion they should not have done or as to what they did not do that in his opinion they should have done. More importantly, he never testified that had what he considered to be "approved medical practices" been followed by the defendants in their treatment of the plaintiff in this case, her child would not have been stillborn and her own recovery would not have been prolonged by amnionitis. In short while the evidence may have been sufficient to support a jury finding that defendants were negligent in failing to furnish plaintiff with the standard of care which it was their duty to provide, there was no evidence to show that any failure on the part of defendants to furnish the requisite degree of care was the proximate cause of any of the plaintiff's injuries. "To establish liability upon the surgeon or physician in malpractice cases, there must be proof of actionable negligence by the defendant, which was the proximate cause of the plaintiff's injury or worsened condition." Starnes v. Taylor, 272 N.C. 386, 391, 158 S.E.2d 339, 343 (1968). The evidence in the present case, even when considered in the light most favorable to the plaintiff and even when the plaintiff is given the benefit of every legitimate inference to be drawn in her favor, simply fails to show that anything defendants did or failed to do caused her injuries. The trial court erred in denying defendants' motion for directed verdict made at the close of all the evidence.
Defendants in this case made a timely motion for judgment notwithstanding the verdict in accordance with G.S. 1A-1, Rule 50(b)(1), which motion the trial court also denied. Since this motion was duly made, this court, having found that the trial judge should have granted the motion for directed verdict made at the close of all the evidence, could direct entry of judgment in accordance with the motion. G.S. 1A-1, Rule 50(b)(2). We are not, however, required to do so. G.S. 1A-1, Rule 50(d) provides:
(d) Motion for judgment notwithstanding the verdictdenial of motion.If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate division concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate division reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
Speaking of Federal Rule 50(d), which is in all material respects identical with G.S. 1A-1, Rule 50(d), the United States Supreme Court pointed out that even "[i]f appellee presents no new trial issues in his brief or in a petition for rehearing, the court of appeals may, in any event, order a new trial on its own motion or refer the matter to the district court, based on factors encountered in its own review of the case." Neely v. Eby Construction Co., 386 U.S. 317, 329, 87 S. Ct. 1072, 1080, 18 L. Ed. 2d 75, 84-5 (1967).
*309 Under all of the circumstances of this case, it is our opinion, and we so decide, that instead of directing entry of judgment directing verdict for defendants, the plaintiff appellee should be granted a new trial.
Since we have decided there must be a new trial and since it is probable that opinions of expert witnesses in response to hypothetical questions will again be offered, we deem it appropriate to discuss some of defendants' assignments of error directed to the trial judge's actions in overruling their objections to hypothetical questions which plaintiff's counsel asked of Dr. May, plaintiff's expert witness. Certain of defendants' objections to the form of these questions are well taken. The questions were unduly long and prolix. They contained reference to matters which were irrelevant to the purposes for which the questions were asked. In some instances they failed to include reference to matters which were highly relevant. One illustration will suffice. To show that the stillborn child might have died as a result of amnionitis, plaintiffs counsel asked Dr. May the following question:
Q. Doctor May, I ask you, assuming that if the jury should find from the evidence in this case and by its greater weight thereof that Barbara Lindsey, in her last month of pregnancy, having been checked on May the 29th, 1974, by Doctor Westfall, and having been informed by him at that time that she had opened up slightly and that her child could be born at any time thereafter and that Barbara Lindsey, approximately five days thereafter, on June the 3rd, 1974, experienced a discharge of fluid from her vagina which ran down and soaked both legs of her slacks and that same night approximately one hour thereafter, she experienced another discharge from her vagina which she described as "a gush of fluid containing approximately three to four quarts of fluid" which soaked two bath towels, which she had positioned between her legs, and that Barbara Lindsey, early the following morning on June the 4th 1974, called and spoke with Doctor McAllister and informed him that in her words "her water had broken" and that Doctor McAllister asked her when was her regularly scheduled appointment and informing him that it was the following morning, he asked her to wait and come in at that time at her regularly scheduled appointment on June 5th, 1974, and that Doctor McAllister did not mention to Barbara Lindsey to take her own temperature, nor did Barbara Lindsey take her own temperature; that Barbara Lindsey, on June 5th, 1974, was seen by Doctor Westfall for an examination of from two to four minutes and that neither Doctor Westfall nor his nurses took Mrs. Lindsey's temperature, nor did Doctor Westfall or any of his nurses ask Mrs. Lindsey to check her own temperature, nor did Barbara Lindsey take her own temperature, nor did Doctor Westfall prescribe any medication for Mrs. Lindsey, nor did the records of the clinic introduced into evidence indicate that any test was given by Doctor Westfall, Doctor McAllister or anyone in the clinic to determine if the membranes had ruptured nor do the records indicate that her temperature was taken; that Mrs. Lindsey, having had no problem with swelling and having lost by her doctor's records five pounds since May the 29th, 1974, and that Doctor Westfall sent her home to return on Friday, the 7th of June, 1974;
That on June the 6th, 1974, Barbara Lindsey began having a bloody discharge, red in nature, and on the day of June 6, 1974, Mrs. Lindsey began having sharp pains at regular intervals approximately twenty minutes apart and that on the morning of June 7, 1974, Mrs. Lindsey began having a discharge from her vagina which was green and black in color and which she described as "thick in nature so that it remained above the water level in her commode for her to plainly see" prior to flushing that commode and that Barbara Lindsey went to see Doctor McAllister a few hours later on the morning of June 7, 1974, and described to Doctor McAllister and his nurses both the bloody discharge and the green and black *310 discharge as well as the sharp pains at regular intervals which she was having approximately twenty minutes apart and that neither Doctor McAllister nor any of his nurses took the temperature of Mrs. Lindsey on June 7, 1974, nor did Doctor McAllister nor any of his nurses tell Mrs. Lindsey to check her own temperature, nor did Barbara Lindsey check her own temperature and that Mrs. Lindsey, according to her doctor's records had lost eight and one-half pounds at this time, since May 29, 1974, and that Doctor McAllister examined Mrs. Lindsey for approximately two to four minutes and Doctor McAllister noted on his notes on that day of June 7, 1974, "contractions began yesterday; some bloody show; no dilation," and that Doctor McAllister did not prescribe any medication for Mrs. Lindsey nor did the records of the clinic introduced into evidence indicate that any test was given by Doctor Westfall, Doctor McAllister or anyone in the clinic to determine if the membranes had ruptured, nor do the records indicate that her temperature was taken, and that he stated to Mrs. Lindsey, "I could not feel the baby and it is so high up at this time that if I were to induce labor your baby would die," and that Doctor McAllister told Mrs. Lindsey to come back in one week on the following Friday and that Mrs. Lindsey had not felt her baby move since June 5th, 1974;
That on June 8th, 1974, Mrs. Lindsey continued to have sharp pains although at irregular intervals and that her discharge of black and green substance continued as well as did her discharge of bloody substance and that her pain on June 9th and June 10th continued to be severe and on June 11th, Barbara Lindsey called her Obstetricians and Gynecologist, Doctor McAllister and Doctor Westfall, three separate and distinct times and none of her calls were returned and that she could not contact either Doctor McAllister or Doctor Westfall by phone and she did not receive any calls from Doctor Westfall or Doctor McAllister on or after June 11th, 1974, and that Barbara Lindsey had stayed off her feet unable to perform her normal daily activities and that on June 12th, 1974, early on that afternoon, Mrs. Lindsey of her own free will went to the offices of Doctor McAllister and Doctor Westfall.
Do you have an opinion satisfactory to yourself and to a reasonable medical certainty as to whether or not Angela Lindsey, the deceased fetus in this instance, could or might have died as the result of amnionitis?
Defendants' objection to the question was overruled. To this question, the witness replied that in his opinion "the infant might have died from infection." Defendants' motion to strike was denied.
The question was undoubtedly an effective summation before the jury by plaintiff's counsel of his view of his client's case, but that in itself was not a legitimate purpose to be served in asking a hypothetical question. In addition, it contains reference to so many irrelevant matters that defendant's objection should have been sustained on that ground alone. See Ingram v. McCuiston, 261 N.C. 392, 134 S.E.2d 705 (1964). For example, defendants' failure to return plaintiff's telephone calls, which was also referred to in two other long hypothetical questions, might have been relevant to show a lack of concern for the plaintiff on the part of the defendants, but it could hardly have been relevant to determine whether the deceased fetus "could or might have died of amnionitis." On the other hand the question fails to include reference to many obviously relevant facts shown by uncontradicted evidence in this case. For example, the question does not state as assumed facts that the child was stillborn, that it was delivered by a breech extraction, that the umbilical cord was wrapped tightly around its leg, that amnionitis was observed by the delivering doctor at the time of the delivery, or that plaintiff ever had amnionitis. With all deference to the impressive credentials of plaintiff's expert witness, it is difficult for this court to understand how, solely on the basis of the facts assumed in the above quoted hypothetical question, Dr. *311 May could express the opinion "to a reasonable degree of medical certainty" that "the infant might have died from infection." It seems probable that he based his opinion, at least in part, by assuming the existence of facts not stated in the question.
It was error for the trial court not to sustain defendants' timely objection to the question and error to deny defendants' motion to strike the answer.
For the reasons stated, this case is remanded for a
New Trial.
CLARK and ERWIN, JJ., concur.