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2005-UP-517 - Turbeville v. Wilson

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Mary S. Turbeville, as Personal Representative of the Estate of Edwin D. Turbeville, Sr.,        Appellant,

v.

Thomas G. Wilson and Robert E. Turner, III,        Respondents.


Appeal From Florence County
James E. Brogdon, Jr., Circuit Court Judge


Unpublished Opinion No. 2005-UP-517
Heard June 7, 2005 – Filed September 12, 2005


AFFIRMED


Marvin P. Jackson, of Florence, for Appellant.

Andrew F. Lindemann, of Columbia; Marian Williams Scalise, of Myrtle Beach, for Respondents.

PER CURIAM:  In this medical malpractice action, Mary Turbeville, as personal representative of the estate of Edward Turbeville, Sr., appeals the trial court’s grant of summary judgment to Dr. Robert E. Turner, III, and partial summary judgment to Dr. Thomas Wilson.[1]  We affirm.

FACTS

On June 30, 1997, seventy-five-year-old Edwin Turbeville, Sr. (the decedent), was admitted to the hospital for hip replacement surgery.  Because of the prior removal of the decedent’s large intestine, he developed the post-operative complication of a small bowel obstruction after his small intestines dropped into his pelvis.  Thomas Wilson, M.D., surgically removed the bowel obstruction on July 13, 1997, and inserted a Baker tube in the bowel to maintain bowel function.  Dr. Wilson also inserted a nasogastric tube (NG-Tube) to aid in the removal of excess gastric fluids while the decedent recovered.  Because the decedent appeared to improve and his lab work was normal, Dr. Wilson removed the NG-Tube on the morning of Friday, July 18, 1997.  Thereafter, Dr. Wilson asked Leslie Stewart, M.D., a surgeon from another practice and with whom Dr. Wilson shared on-call duties, to check on the decedent throughout the weekend from the evening of July 18, 1997 until July 20, 1997. 

Other physicians who saw the decedent during that time period included Robert E. Turner, III, M.D., an internist, whose partner was the decedent’s primary care physician.  On July 20, 1997, the decedent suffered from abdominal pain, nausea, difficulty breathing, a drop in blood pressure, and chest congestion, and Dr. Turner was the physician who was consulted the most regarding the decedent’s condition.  That evening, the decedent vomited gastric fluid, aspirated the vomit, and had to be placed on a ventilator.  The decedent’s condition continued to deteriorate, he suffered from cardiac arrest, and he died early the next morning.  No autopsy was ever performed.    

On July 20, 2000, Mary Turbeville (Turbeville), decedent’s wife and the personal representative of decedent’s estate, filed a medical malpractice action against Drs. Wilson and Turner alleging causes of action for wrongful death and for the decedent’s unnecessary pain and suffering.  Turbeville alleged that Dr. Wilson was negligent in the performance of a surgical procedure in July 1997 to correct the decedent’s bowel obstruction and vicariously liable for the negligence of Dr. Stewart during post-operative care.  She also alleged Dr. Turner was negligent in his care of the decedent on the day of his death.   

During discovery, Turbeville deposed expert Dr. Edward R. McLean, a board-certified general and bariatric surgeon.  Dr. McLean opined that the decedent may have had a bowel obstruction with the Baker tube in place, causing a leak.  However, McLean admitted that he could not actually determine from the medical records that the decedent had a leak.  Dr. McLean stated that the NG-Tube should not have been removed on July 18, 1997, because the decedent had a very high gastric fluid output.  He also testified that he believed the decedent died of an intra-abdominal catastrophe causing cardiorespiratory decompensation.  McLean believed the death could have been prevented through abdominal x-rays, obtaining blood gasses, replacement of the NG-Tube, and a suctioning of the lungs.  

Both Dr. Wilson and Dr. Turner moved for summary judgment.  The trial court granted summary judgment as to the allegations against Dr. Turner and partially granted Dr. Wilson’s motion for summary judgment.  The court granted summary judgment as to the allegations that Dr. Wilson negligently performed the corrective bowel surgery and that Dr. Wilson was responsible for the negligence of Dr. Stewart.  The court ruled “the sole issue for trial will be whether or not Dr. Wilson deviated from any standards of medical practice in removing the NG-Tube from the decedent on July 18, 1997, and whether this removal proximately caused injury, damage, and/or death to the decedent.”  Turbeville then filed a motion for reconsideration.  Before the trial court could rule on that motion, Turbeville filed this appeal.  Based on a lack of jurisdiction given the pending appeal, the trial court declined to hear the motion for reconsideration. 

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c) of the South Carolina Rules of Civil Procedure:  summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  Fleming v. Rose, 350 S.C. 488, 493-94, 567 S.E.2d 857, 860 (2002).  In determining whether any triable issue of fact exists, the evidence and all inferences, which can reasonably be drawn therefrom, must be viewed in the light most favorable to the nonmoving party.  Faile v. South Carolina Dep’t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002).  “If triable issues exist, those issues must go to the jury.”  Young v. South Carolina Dep’t of Corr., 333 S.C. 714, 718, 511 S.E.2d 413, 415 (Ct. App. 1999).

Summary judgment is not appropriate when further inquiry into the facts is necessary to clarify the application of the law.  Vermeer Carolina’s, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 59, 518 S.E.2d 301, 305 (Ct. App. 1999).  All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party.  Bayle v. South Carolina Dep’t of Transp., 344 S.C. 115, 120, 542 S.E.2d 736, 738 (Ct. App. 2001).  When the parties do not dispute the facts, but only the conclusions or inferences to be drawn from them, summary judgment should be denied.  Hall v. Fedor, 349 S.C. 169, 173-74, 561 S.E.2d 654, 656 (Ct. App. 2002).  Moreover, summary judgment is a drastic remedy, which should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues.  Lanham v. Blue Cross and Blue Shield, 349 S.C. 356, 363, 563 S.E.2d 331, 334 (2002).

LAW/ANALYSIS

I. Dr. Turner

Turbeville claims the trial court erred in granting summary judgment to Dr. Turner because expert testimony or, at least, common knowledge, presented a reasonable inference that Dr. Turner’s negligence proximately caused the death of the deceased.  We disagree.

A. Expert Testimony

Medical malpractice is the failure of a physician to exercise that degree of care and skill that is ordinarily employed by the profession under similar conditions and in like surrounding circumstances.  Keaton v. Greenville Hosp. Sys., 334 S.C. 488, 496, 514 S.E.2d 570, 574 (1999); Jernigan v. King, 312 S.C. 331, 333, 440 S.E.2d 379, 381 (Ct. App. 1993).  To sustain a medical malpractice action, the plaintiff must establish by expert testimony both the required standard of care and the defendant’s failure to conform to that standard.  Botehlo v. Bycura, 282 S.C. 578, 583, 320 S.E.2d 59, 62 (Ct. App. 1984).  The reason for requiring expert testimony is that matters of proper medical diagnosis and treatment ordinarily involve “‘technical knowledge beyond the ken of the laymen.’”  Bessinger v. DeLoach, 230 S.C. 1, 11, 94 S.E.2d 3, 8 (1956) (quoting Hill v. Parker, 122 P.2d 476, 482 (Wash. 1942)).  Expert testimony is not required in medical malpractice cases in situations where the common knowledge or experience of laymen is extensive enough for them to recognize or infer “negligence on the part of the doctor and also to determine the presence of the required causal link between the doctor’s actions and the patient’s medical problems.”  Pederson v. Gould, 288 S.C. 141, 142, 341 S.E.2d 633, 634 (1986); Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 168, 367 S.E.2d 453, 455 (Ct. App. 1988).

Although physicians in one field of practice may testify as to the standard of care owed by a physician in another field of practice, the expert witness must profess knowledge of the applicable standard of care and provide a basis for having acquired that knowledge.  See, e.g., Lee v. Suess, 318 S.C. 283, 286, 457 S.E.2d 344, 346 (1995) (holding a plastic surgeon could testify as to the standard of care owed by family practitioners because he stated his awareness of the standard of care and showed proof of acquiring that knowledge); Botehlo, 282 S.C. at 587, 320 S.E.2d at 65 (holding an orthopedic surgeon could not testify to the standard of care owed by a podiatrist because he admitted his unfamiliarity with the standard of care). 

Dr. McLean admitted in his deposition that he was not competent to address the standard of care owed by an internist, such as Dr. Turner, or whether an internist deviated from that standard of care.  Dr. McLean further testified that there was not anything Dr. Turner did or did not do that caused the decedent’s death.  Turbeville did not present any other expert testimony regarding the standard of care of an internist or whether Dr. Turner deviated from that standard.  Thus, viewing the evidence in the light most favorable to Turbeville, no expert testimony was presented to support the allegation of medical malpractice against Dr. Turner.  The trial court appropriately granted him summary judgment.  Botehlo, 282 S.C. at 583, 320 S.E.2d at 62-63 (noting that on a defendant’s motion for summary judgment, there will be no issue of material fact unless the plaintiff presented expert testimony of the standard of care and the breach of the standard by the defendant). 

B.  Common Knowledge Exception

Turbeville argues Dr. Turner’s actions were such that a person of ordinary knowledge or experience could infer improper professional conduct so experts were not needed.  Turbeville points to Dr. Turner’s failure to reinsert the NG-Tube, failure to react to the decedent’s drop in blood pressure, decision to prescribe Lasix, and failure to react to other symptoms exhibited by the decedent, as being issues within the ambit of common knowledge and experience of laypersons.  

In discussing the common knowledge exception, this court has noted that:

Where the evidence permits the jury to recognize or infer a breach of duty without the aid of expert testimony, such testimony is not required in order for the case to go to the jury.  The application of the common knowledge exception in proving negligence in a case involving medical malpractice depends on the particular facts of the case.  When expert testimony is not required, the plaintiff must offer evidence that rises above mere speculation or conjecture.  And, where the evidence permits the jury to recognize or infer a breach of duty without the aid of expert testimony, such testimony is not required for the case to go to the jury.

Hickman, 295 S.C. at 168, 367 S.E.2d at 455 (citations omitted).

Dr. Turner and various nurses who were in charge of the decedent on the day of his death testified regarding the decedent’s symptoms, various medical treatments given to combat those symptoms, and the decedent’s reaction to the treatments.  Dr. McLean, Turbeville’s own expert witness, stated “whether an NG-Tube should have been put in or not, that’s debatable.”  He also opined this issue posed “a complex question,” insinuating a lay jury would not be able to resolve the issue without the benefit of expert testimony.  Reviewing the testimony and the issues involved in the case, the trial court determined that “lay jurors are not capable of understanding the complex medical issues that are the subject of this lawsuit.”  The court noted that the case involved complex medical questions including the purpose of NG-Tubes, when NG-Tubes should be used or removed, when NG-Tubes should be replaced, what measures should be taken when a patient’s blood pressure drops, what measures must be taken when a patient vomits or becomes tachycardic, and when blood gas tests need to be performed.  

We agree with the trial court.  The issues considered in this medical malpractice action dealt with the diagnosis and treatment of an intensive care patient with numerous medical problems.  The treatment of those medical problems required the expert knowledge of a physician trained in such areas.  What treatments should have been utilized and when they should have been administered are not questions within the ambit of common knowledge.  Accordingly, the common knowledge exception does not apply.[2] 

II. Dr. Wilson

Turbeville argues the trial court erred in granting partial summary judgment to Dr. Wilson because evidence through expert testimony and the common knowledge of laymen supported the allegation that Wilson’s negligence caused the decedent’s death.  Turbeville also argues that Dr. Stewart was the agent of Dr. Wilson, and thus, Dr. Wilson is responsible for Dr. Stewart’s negligence.  We disagree.

A.  Expert Testimony

Turbeville asserts that Dr. McLean’s testimony supported an inference that Dr. Wilson was negligent in performing the corrective bowel surgery.  He argues that Dr. McLean’s testimony supported his allegation that the use of the Baker tubes was negligent.  Thus, she argues, the trial court erred in granting summary judgment with regard to allegations concerning the surgery. 

Dr. McLean testified regarding the use of a Baker tube during the surgery to prevent future bowel obstruction formations.  Because the “benefits [were] so low in using a Baker tube and the risks [were] significant,” Dr. McLean called into question Dr. Wilson’s use of the procedure.  However, he never stated that the use of the Baker’s tube was a deviation from the standard of care expected of general surgeons.  Furthermore, he testified “the Baker tube itself didn’t cause [decedent’s] death.”  In addition, because no tests were performed, Dr. McLean noted that “[t]here’s a lot that’s unknown in this case.”  

Dr. McLean was unable to state to a reasonable degree of medical certainty that the use of the Baker tube most probably resulted in any complications or proximately caused harm.  Because there was no evidence that the use of the Baker tube deviated from the standard of care, Turbeville failed to establish through expert testimony that Dr. Wilson deviated from the standard of care in performing the decedent’s surgery.  Accordingly, we find no error with the trial court’s grant of summary judgment as to the surgery.[3]

B.  Common Knowledge Exception

Citing Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985), Turbeville argues that Dr. Wilson’s own testimony showed that he could not properly view the decedent’s bowel obstruction when he operated.  Thus, she argues, a person of ordinary knowledge would realize that Dr. Wilson was negligent in performing the surgery. 

In Cox, the defendant physician attempted to perform a colonoscopy, which resulted in a perforation of the colon.  Cox, 286 S.C. at 413, 334 S.E.2d at 118.  The plaintiff presented expert medical testimony that the colon was “totally unprepared” for the procedure such that the physician could not see.  Id. at 417, 334 S.E.2d at 120.  In fact, the defendant physician himself admitted that the colonoscope should not be advanced when the doctor is unable to adequately see.  Id.  The supreme court held “[e]xpert testimony is not required to establish negligence when the act complained of was done in the face of a proscription known to the actor.”  Id. 

Dr. Wilson testified that while attempting to surgically relieve the decedent’s bowel obstruction, there came a point in time where he could not see the obstruction because he was required to reach into the decedent’s bowels.  However, he performed a “blunt dissection” in which he manually manipulated the area to relieve the obstruction.  

This case is clearly distinguishable from the facts in Cox.  Although Dr. Wilson could not see when he performed the blunt dissection, nothing indicates that this method deviated from the standard of care.  Dr. McClean did not testify that Dr. Wilson deviated from the standard of care in freeing the bowel adhesions by means of blunt dissection.  Moreover, Dr. Wilson never admitted his technique was inappropriate or deviated from the standard of care.  Because there was no admission from Dr. Wilson himself that his actions deviated from the standard of care, a layperson could not determine in this complex medical case whether Dr. Wilson’s actions in performing a blunt dissection were negligent without the aid of an expert.  Thus, the common knowledge exception does not apply in this case. 

C.  Liability for Dr. Stewart

Citing Wilson v. Martin Memorial Hospital, 61 S.E.2d 102 (N.C. 1950), Turbeville claims Dr. Wilson is liable for any negligence committed by Dr. Stewart because Dr. Stewart was Dr. Wilson’s agent. 

When a physician for one reason or another is “temporarily unable to attend the patient personally, the physician, without being viewed as having either abandoned or neglected his patient, may make provision for a competent physician to attend the patient.”  Johnston v. Ward, 288 S.C. 603, 610-11, 344 S.E.2d 166, 170 (Ct. App. 1986), overruled on other grounds by Spahn v. Town of Port Royal, 330 S.C. 168, 499 S.E.2d 205 (1998).  “In the absence of negligence in making the substitution, the physician is not liable for injuries resulting from the substitute physician’s want of skill or care unless the substitute physician is in his employ or is his agent or partner.”  Id. at 611, 344 S.E.2d at 170-71.

Initially, we note Turbeville does not claim Dr. Wilson was negligent in making the substitution of Dr. Stewart.  Further, there is no evidence in this case that Dr. Wilson exercised any control over Dr. Stewart.  Dr. Wilson and Dr. Stewart were not partners in the same practice, Dr. Wilson did not supervise Dr. Stewart, and Dr. Stewart did not consult Dr. Wilson on the days he covered for him.  Dr. Stewart testified that his role as the substituting physician was “to care for the patient just like they were your patient.”  Thus, Dr. Stewart was free to use his own discretion, knowledge, and skill in the care of the patient without any control, interference, or input from Dr. Wilson.  Most importantly, the trial court ruled that “Dr. Stewart’s actions or inactions did not proximately cause Mr. Turbeville’s death.”  Turbeville did not appeal from this finding.  See Brading v. County of Georgetown, 327 S.C. 107, 113, 490 S.E.2d 4, 7 (1997) (holding that an unchallenged ruling, right or wrong, is the law of the case).  The evidence does not support a finding of agency in this case. 

Further, we find the North Carolina case of Wilson v. Martin Memorial Hospital is distinguishable from the facts in the present case.  In Wilson, a patient’s treating obstetrician ordered a second physician to oversee her delivery.  The delivery resulted in serious, permanent injuries to the patient.  The second physician testified that he was handicapped in making decisions, that he had no authority to do what he wanted to do, and that he could not use his own judgment in making decisions regarding the patient’s care.  The Wilson court found that the second physician was the agent of the treating physician.  Wilson, 61 S.E.2d at 104. 

As previously discussed, there is no evidence that Dr. Wilson exercised control over Dr. Stewart’s decisions in treating the decedent or that Dr. Stewart was “handicapped” in making care decisions.  Accordingly, we agree with the trial court that Wilson is inapplicable to the case at hand.

Viewing the evidence in the light most favorable to Turbeville, we find no error with the trial court’s decision to grant summary judgment to Dr. Wilson on the issue of vicarious liability.  

CONCLUSION

Viewing the evidence in the light most favorable to Turbeville, the trial court properly granted summary judgment as to Dr. Taylor and partial summary judgment as to Dr. Wilson.  For the reasons stated herein, the trial court’s decision is

AFFIRMED.    

KITTREDGE, BEATTY, and SHORT, JJ., concur.


[1]  Turbeville also asserts that the trial court did not view the facts in the light most favorable to Turbeville in granting summary judgment.  As will be discussed in further detail, we have reviewed the evidence in the light most favorable to Turbeville and found no error with the trial court’s rulings.  There is no evidence that the trial court applied the wrong standard.  Thus, this argument has no merit. 

[2]  Turbeville also claims Dr. Turner’s silence, after decedent’s son told him his belief that the situation with his father was not normal, was an admission of guilt.  In Greene v. Lilliewood, 272 S.C. 186, 193, 249 S.E.2d 910, 913 (1978), upon being asked if leaving an IUD in the patient caused problems, the physician “looked embarrassed and nodded his head.”  The court treated the physician’s response as an admission.  Id.  In this case, Dr. Turner simply did not reply to the statement.  We refuse to treat his silence to this statement as an admission. 

[3] Turbeville also argues on appeal Dr. Wilson negligently removed the NG-Tube.  However, because the trial court denied summary judgment on this issue, we need not address this argument.  See Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 168, 580 S.E.2d 440, 444 (2003) (holding that the denial of a motion for summary judgment is not appealable).