Bowlin v. Duke University
423 S.E.2d 320
N.C. Ct. App.
1992
Check Treatment
WELLS, Judge.

We note initially that the summary judgment below did not resolve all claims between all parties. Partial summary judgment is interlocutory and subject to dismissal. However, following our Supreme Court’s reasoning and holding in Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976) and its progeny, we conclude that plaintiff had a substantial right to have all her claims tried at the same time before the same judge and jury. We therefore will determine plaintiff’s appeal on its merits.

Plaintiff sets forth four assignments of error for our review. First, plaintiff argues that the trial court erred in dismissing her first claim, in which she asserted that the doctrine of res ipsa loquitur should apply. Second, plaintiff contends partial summary judgment was improper because defendant Dr. Jones did not obtain her informed consent to the procedure. Third, plaintiff argues partial summary judgment was improper because defendant Dr. Jones’ alleged misrepresentation of the status of Zachary Shpall, a fourth-year medical student, amounted to constructive fraud. Finally, plaintiff argues that the trial court erred in granting partial summary judgment because there was sufficient evidence of intentional misrepresentation on the part of defendant Dr. Jones. We find plaintiff’s final assignment of error to be without merit, and we therefore do not address it.

“Res Ipsa” Claim

We initially question whether it is acceptable practice under our Rules of Civil Procedure to “plead” the applicability of a rule of law or evidence as a separate claim for relief. Although in re *149 pealing N.C. Gen. Stat. § 1-122 requiring a complaint to state “the facts constituting a cause of action” the legislature has adopted the more liberal concept of “notice pleading,” the clear import of Rule 8(a), is to retain the idea of factual pleading; that is, to set forth those essential facts required to give adequate “notice” for preparation by the opponent. N.C. Gen. Stat. § 1-122 (repealed 1 January 1970). See generally Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970) (citing an explanation of the New York rules on notice pleading, the source of the North Carolina rules, providing guidance in interpretation of our Rule 8(a)). Furthermore, in testing the legal sufficiency of pleadings, using the Rule 12(b)(6) motion, well-pleaded material allegations of fact are taken as admitted, but conclusions of law or unwarranted deductions of fact are not admitted. Id. Taken together, it appears that Rules 12(b)(6) and 8(a) suggest pleadings should be limited to those facts or descriptions of “transactions, occurrences, or series of transactions or occurrences, intended to be proved.” North Carolina Rules of Civil Procedure, Rule 8(a). Nevertheless, we address plaintiffs res ipsa loquitur claim on its merits.

Res ipsa loquitur is a doctrine addressed to those situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of defendant. It is applicable when no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of defendant, and the injury is of a type that would not normally occur in the absence of negligence. Grigg v. Lester, 102 N.C. App. 332, 401 S.E.2d 657, cert. denied, 329 N.C. 788, 408 S.E.2d 520 (1991); See Brandis on North Carolina Evidence, 227 (3rd ed. 1988).

In this case, there was conflicting expert testimony as to the cause of plaintiff’s injury. We, therefore, cannot find the injury to be one that ordinarily would not occur except for some negligent act or omission. Furthermore, “res ipsa loquitur is based upon common knowledge and experience” generally known to laymen. Grigg, supra. It is our opinion that injury to the sciatic nerve during a bone marrow harvest procedure is peculiarly the subject of expert opinion, and a layman would have no basis for concluding that defendant was negligent in extracting the marrow. This Court has consistently reaffirmed that res ipsa loquitur is inappropriate in the usual medical malpractice case, where the question of injury and the facts in evidence are peculiarly in the province of expert *150 opinion. Grigg, supra. See also Elliot v. Owen, 99 N.C. App. 465, 393 S.E.2d 347 (1990). We therefore affirm the trial court’s ruling.

Informed Consent Clatm

Second, plaintiff argues that defendant Dr. Jones did not obtain her informed consent to the bone marrow harvest procedure. Specifically, plaintiff alleged that Dr. Jones misrepresented the status of his assistant, Zachary Shpall, to plaintiff before she underwent the procedure. This misrepresentation, plaintiff asserts, violated N.C. Gen. Stat. § 90-21.13, requiring a physician to obtain consent from the patient “in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities[.]” N.C. Gen. Stat. § 90-21.13(a)(1).

The forecast of evidence presented at trial does not support this contention. We first note that defendants’ forecast of evidence included expert testimony that the use of medical students in providing health care is standard practice in teaching hospitals. Second, we note that plaintiff acknowledged that she signed a consent form which included a statement that she agreed medical students could assist in providing her care, both specifically and by acknowledging the fact that Duke University Medical Center is a teaching institution. The pertinent “consent” language in the form plaintiff signed was as follows:

Teaching Institution
I understand that Duke University Medical Center is a teaching institution, and I agree that students training to be physicians, nurses, [and] allied health personnel may assist in providing my care and that my medical records may be used for purposes of research, education, and patient care.

It appears that plaintiff contends defendant Dr. Jones should have informed her of any health care provider who would assist him in the bone marrow harvest procedure and their levels of expertise. There is, however, no statutory or common law duty for an attending surgeon to inform a patient of the particular qualifications of individuals who will be assisting, and the consent given by plaintiff defeats this argument. See generally Foard v. Jarman, 326 N.C. 24, 387 S.E.2d 162 (1990). We therefore hold that the trial court’s granting summary judgment on the informed consent claim to be proper.

*151 Constructive Fraud Claim

Finally, plaintiff argues that defendant Dr. Jones’ failure to reveal Mr. Shpall’s status as an unlicensed medical student amounts to constructive fraud. To sustain a cause of action for constructive fraud, plaintiff must allege facts and circumstances (1) which created a relationship of trust and confidence, and (2) which led up to and surrounded a transaction in which defendant allegedly took advantage of his position of trust to injure the plaintiff. Watts v. Cumberland County Hosp. System, 317 N.C. 110, 343 S.E.2d 879 (1986). The first prong of the test in Watts is easily satisfied if plaintiff alleges defendant Dr. Jones was her attending physician at Duke Medical Center. Our Court has consistently recognized the physician-patient relationship to be a fiduciary one, “imposing upon the physician the duty of good faith and fair dealing.” Id. See Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).

While plaintiff has established a relationship of trust and confidence between defendant Dr. Jones and herself, we find that she has not alleged facts sufficient to show defendant Dr. Jones breached his fiduciary duty or took advantage of plaintiff’s trust to her detriment. Again, there was no affirmative duty to inform the plaintiff of Mr. Shpall’s status, and it is common practice for medical students at teaching hospitals to assist in medical procedures. As we have noted, informing the patient of each assistant’s level of training or level of expertise is not an affirmative duty we will impose in such cases. Therefore, we find the forecast of evidence presented insufficient to support plaintiff’s claim for constructive fraud.

For the reasons stated, we affirm the trial court’s order granting partial summary judgment in favor of defendants.

Affirmed.

Judges ARNOLD and LEWIS concur.