Page v. Wilson Memorial Hospital, Inc. , 49 N.C. App. 533 ( 1980 )

272 S.E.2d 8 (1980) 49 N.C. App. 533

Ruth D. PAGE, Administratrix of the Estate of Lucy Page Hogg
v.
WILSON MEMORIAL HOSPITAL, INC., and Carolyn Coates and Jacqueline Simms Ward.

No. 807SC336.

Court of Appeals of North Carolina.

November 18, 1980.

Biggs, Meadows, Batts, Etheridge & Winberry by Auley M. Crouch, III, Rocky Mount, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson and Jodee Sparkman King, Raleigh, for defendants-appellees.

ARNOLD, Judge.

Plaintiff contends that it was error for the trial court to exclude testimony of the expert witness, Nurse Pennington, regarding the standard of care in situations involving a patient's use of a bedpan, and in directing a verdict for defendants.

Nurse Pennington would have testified that placing the patient on a bedpan in a chair and leaving her unattended for periods of three to four minutes was a violation of the standard of nursing care in Wilson County Hospital or hospitals located in similar communities. Her testimony would have constituted sufficient evidence of actionable negligence to take the case to the jury.

Defendants argue that the court correctly sustained objection to Nurse Pennington testifying as an expert witness concerning the standard of practice in the field of nursing in Wilson County or a similar community. They contend that plaintiff failed to establish Nurse Pennington's familiarity with the standard of nursing care in hospitals and communities "similar" to Wilson County Hospital, as required by G.S. 90-21.12. The essence of defendants' position is that the plaintiff did not present any evidence that the communities with which Nurse Pennington was familiar were similar to the community wherein the treatment occurred.

Article 1B, Chapter 90 of our General Statutes entitled Medical Malpractice Actions, controls the standard of care for "health care providers" including the practice of nursing. The Supreme Court of North Carolina, in Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393 (1970), abandoned the strict "locality" rule in favor of the "similar community" rule. That rule was affirmed in Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973), and is now codified in G.S. 90-21.12.

We find that the testimony of Nurse Pennington was admissible. By adopting the "similar community" rule in G.S. 90-21.12 it was the intent of the General Assembly to avoid the adoption of a national or regional standard of care for health providers and not to exclude testimony such as that offered in this case where it was shown that the witness was familiar with the standards of hospitals in adjoining and nearby communities.

The record shows that Nurse Pennington was a registered nurse licensed to practice in North Carolina, Kansas and Missouri, formerly an assistant professor at East Carolina School of Nursing where she supervised student nurses in caring for patients at Nash County Hospital in Rocky Mount, Martin County Hospital in Williamston, Pitt County Hospital in Greenville, Beaufort County Hospital in Washington and a nursing home in Greenville; that she was familiar with the practices, procedures and standards of nursing care in those hospitals where she supervised student nurses; that her lecture responsibilities covered the nurses' role in meeting the physical and psychological needs of the patient through various nursing procedures; that she received her B.S. in nursing from the University of Kansas and had more than 14 years experience as a nurse and nursing instructor in North Carolina, Kansas and Missouri. Based on the record before us, we find that it was error to exclude Nurse Pennington's testimony and consequently to direct a verdict in favor of defendants.

Moreover, we suggest that the nursing practices in connection with patients' use of a bedpan are so routine and uncomplicated that the standard of care should not differ appreciably between counties such as Wilson and the neighboring counties of Nash and Pitt, or nearby Martin County. See, e. g. Williams v. Reynolds, 45 N.C.App. 655, 263 S.E.2d 853 (1980); Rucker v. High Point Memorial Hospital, 285 N.C. 519, 206 S.E.2d 196 (1974). Though Williams did not involve a case under the Medical Malpractice Statute, but rather alleged negligence by a veterinarian, Judge Hedrick observed that "[w]e are not dealing in this case with a complicated, novel or rare medical procedure, but rather with an operation commonly and routinely performed on certain male animals." Williams v. Reynolds, supra 45 N.C.App. at 660, 263 S.E.2d at 856.

The Court in Wiggins, 276 N.C. at 138, 171 S.E.2d at 395, 396, observed: "The operative procedures here involved would seem to be as simple and uncomplicated as any cutting operation one may imagine. Reason does not appear to the non-medically oriented mind why there should be any essential differences in the manner of closing an incision, whether performed in Jacksonville, Kinston, Goldsboro, ... or any other similar community in North Carolina." We see no reason why the procedures dealing with a patient's use of a bedpan should be more complicated than those associated with closure of an incision or treatment of a gunshot wound. Having taught nursing care in Nash and Pitt County hospitals, Nurse Pennington is eminently qualified to testify as an expert witness concerning the practices and standard of care appropriate when administering a bedpan in communities similar to Wilson County.

As an additional argument in favor of the directed verdict in their favor defendants assert that the evidence establishes contributory negligence as a matter of law. We reject this contention. Based on the evidence presented in this case it is for the jury to say whether the patient was contributorily negligent.

Testifying as an adverse witness defendant Ward, a nurses' aide, testified on cross-examination regarding prior instances where plaintiff's intestate was placed on a bedpan in a chair, and that she would not have placed the patient in the chair if the patient had been confused or disoriented. Inasmuch as plaintiff's counsel "opened the door" to this testimony in his adverse examination we find that the testimony was not improperly admitted in violation of G.S. 8-51, if indeed that statute is applicable.

Also testifying as an adverse witness, defendant Coates, a nurse, testified concerning statements plaintiff's intestate made to her after the fall. Plaintiff argues that this testimony was prohibited by G.S. 8-51 and constituted hearsay. We again, however, agree with defendants that plaintiff had "opened the door," and the testimony was admissible under the hearsay exceptions of res gestae and declaration against interest.

Reversed and remanded.

ERWIN and HILL, JJ., concur.