I
Plaintiffs’ first three assignments of error concern the discrepancy between the original of the emergency room record prepared in connection with Mr. Paris’ 27-28 November 1980 visit and the copy provided by defendants to plaintiffs’ counsel. In their first argument, plaintiffs contend that it was error for the trial court to deny their motion to amend the complaint to add falsification of medical records as an additional act of negligence entitling them to damages and thereby to conform the complaint to the evidence. In their second argument, plaintiffs contend that the trial court erred in granting Dr. Averett’s motion for directed verdict on the issue of punitive damages because the evidence of his falsification of medical records amply supported that claim. In their third argument, plaintiffs contend that the trial court erred in refusing to permit plaintiffs’ counsel to read to the jury the entire stipulation reached by the parties with respect to the altered emergency room records.
The essence of plaintiffs’ three arguments and related assignments of error is that Dr. Averett’s alleged alteration of Mr. Paris’ emergency room record constitutes gross negligence or wanton or wilful conduct which, if proven, would entitle them to punitive damages. Since they presented evidence tending to show that Dr. Averett altered the records, they contend that they are permitted under G.S. 1A-1, Rule 15(b) to amend their pleadings to encompass this evidence and allow for the recovery of punitive damages and to submit the issue to the jury. We are not persuaded by plaintiffs’ arguments and find their assignments of error on this question to be without merit.
The established law in North Carolina regarding the recovery of punitive damages in tort actions is that “the tortious conduct must be accompanied by or partake of some element of aggravation before punitive damages will be allowed.”
Newton v. Insurance Co.,
Whether the tort is negligent or intentional, a party’s entitlement to punitive damages can only arise in connection with the tortious act; it may not constitute a separate cause of action. “If the complainant fails to plead or prove his cause of action, then he is not allowed an award of punitive damages because he must establish his cause of action as a prerequisite for a punitive damages award.”
Oestreicher v. Stores, supra
at 134,
With these principles in mind, we return to plaintiffs’ first argument: that the issue raised by the evidence of the altered document and tried by consent of the parties was “an additional act of negligence entitling plaintiffs to damages” and that the trial court should have allowed their motion under G.S. 1A-1, Rule 15(b), to amend their complaint accordingly. Under the facts of this case, this contention is without merit.
Plaintiffs complaint contains the following allegation:
XIX. The conduct of the Defendant Averett under all circumstances in not personally attending and overseeing the diagnosis and treatment of Mr. Paris in the early morning hours of November 28, 1980, when he knew or should have *375 known that Mr. Paris’ condition was serious and grave and emergency treatment was immediately called for, amounted to a reckless and wanton disregard of and indifference to the rights and safety of Mr. Paris.
While this allegation mentions no particular instance of aggravated conduct, we believe that it is sufficient, under the rule of
Shugar v. Guill,
Plaintiff argues, however, that the issue purportedly raised by the pleadings and tried by the consent of the parties was “an act of malpractice” or “an additional act of negligence.” As stated at trial and on appeal, this constitutes a separate cause of action, not (just an additional issue. G.S. 1A-1, Rule 15(b) provides in part as follows:
If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.
While defendants were not prejudiced by the admission of evidence relating to plaintiffs’ punitive damages claim, having been put on notice by the complaint, and could take remedial measures at trial, such as entering into a stipulation, to minimize the damage of any surprise, they were not prepared to defend against a separate cause of action based on the alleged alteration and clearly did not impliedly consent to the trial of that action. Allowing the amendment proffered by plaintiffs would have allowed' plaintiffs to plead a new cause of action and would have severely prejudiced defendants. “Despite the broad remedial purposes of this provision, however, Rule 15(b) does not permit judgment by ambush.”
Eudy v. Eudy,
*376 Since the issue purportedly raised by the evidence was not tried by the consent of the parties, it was not error for the court to refuse to amend the pleadings. Whether defendants waived their objection to the evidence is therefore immaterial. Moreover, as we understand plaintiffs’ argument on appeal, the purpose of the proposed amendment was to allow plaintiffs to use the evidence of the altered record in support of their claim for punitive damages. From the record and transcript it appears that the documents were admitted subject to the stipulation and were used in exactly this fashion. We do not perceive how plaintiffs were harmed in their malpractice action by the court’s refusal to allow the amendment.
In their second argument, plaintiffs claim that the court erred in granting Dr. Averett’s motion for directed verdict on the punitive damages issue. Plaintiffs argue that their evidence clearly permits the inference that Dr. Averett falsified the emergency room record and was clearly sufficient to allow the issue of punitive damages to be submitted to the jury. In support of this argument, plaintiffs cite the cases of
Henry v. Deen,
Plaintiffs correctly point out that the evidence permits the inference that Dr. Averett altered the emergency room record of Mr. Paris’ 27-28 November 1980 visit. It appears that this evidence constitutes the entire basis for plaintiffs’ punitive damages claim; no other evidence has been called to our attention to support the claim. Plaintiffs also correctly note that our Supreme Court in Henry v. Deen, supra, held that a party could state a claim for damages in a medical malpractice action when the defendant physician had falsified patient records in an attempt to frustrate recovery by the party injured by his negligence. In *377 Henry v. Deen, which involved an appeal from a dismissal under G.S. 1A-1, Rule 12(b)(6), the plaintiffs’ allegations were held to be sufficient to state a claim for relief thus allowing him the opportunity to prove them at trial and possibly be compensated for the resulting injury.
Here, however, we have already held that plaintiffs could not amend their complaint to include a claim based on the alleged document alteration. Their attempt in this argument to use the same evidence as the basis for their punitive damages claim must also fail because they neither allege nor attempt to prove that the document alteration aggravated the injury caused by the alleged malpractice. On the basis of similar reasoning, another panel of this Court held in
Azzolino v. Dingfelder,
Neither our holding here nor Judge Hill’s opinion in Azzolino should be construed as any indication that defendants’ alleged behavior was acceptable, that we condone the alleged acts or that conduct of the type alleged may never be the basis for a punitive damages award. Defendant’s conduct, if plaintiffs’ allegations are true, is reprehensible and evinces a moral deficiency and disregard for the rights of others that we regard as odious and repugnant. Even so, we are bound by the law and the Rules of Civil Procedure which require that in order to be the basis of a recovery, a claim must be properly pleaded and proved. Here, plaintiffs fell short of the mark.
Even if it was error for the trial court to refuse to submit the issue of punitive damages to the jury, this error could not possibly have harmed plaintiffs. As we noted above, punitive damages can only be awarded where the underlying cause of action has been proved and a basis for compensatory damages has been established. Oestreicher v. Stores, Clemmons v. Insurance Co. both supra. Since plaintiffs failed to establish their claim of malpractice, as discussed more fully infra, there was no tortious conduct to which their claim for punitive damages could attach.
*378
As to plaintiffs’ third contention that it was error for the court to refuse to allow the entire stipulation to be read to the jury, defendant’s argument is directly on point. Stipulations are looked upon favorably by the courts and their use is encouraged.
Rural Plumbing and Heating v. H. C. Jones,
II
Plaintiffs’ fourth contention is that the trial court erred in denying their motion for a new trial on the grounds that the verdict was contrary to the greater weight of the evidence. Their fifth contention is that the trial court erred in allowing a directed verdict for defendant Hospital. Together, these contentions raise questions regarding the sufficiency of the evidence. Plaintiffs’ remaining contentions raise questions regarding specific evidentiary rulings by the trial court. Before addressing the general questions, we consider plaintiffs’ specific contentions.
a.
Plaintiffs contend in their sixth argument that the trial court erred in allowing Dr. Averett to testify as an expert when defendants had not identified him as an expert witness in their response to plaintiffs’ interrogatories. Citing the recent cases of
Green v. Maness,
In Green, defendant produced a new expert witness with a new defense theory “virtually on the eve of trial.” The court denied plaintiffs’ motion for a continuance. Relying on Willoughby, the Green court held that plaintiffs were entitled to a new trial because the court’s refusal to allow the continuance had unfairly deprived plaintiffs of the opportunity to conduct effective cross examination.
Plaintiffs in this case claim that the prejudice resulting from the “surprise” use of Dr. Averett as an expert is that defendants were allowed to place before the jury the testimony of an expert who, because he was a party to the action, would be listened to more carefully and given more weight by them. We disagree.
Though Dr. Averett was not listed as an
expert
witness, he was a party and was listed as a potential witness. We hold that it was not error for the trial court to let him testify as an expert witness. This case differs from
Willoughby
and
Green
in several respects. We note first that plaintiffs here did not object to Dr. Averett’s testimony on the grounds of surprise but on the grounds that he was not qualified as an expert. Having objected on this specific ground, they are precluded from arguing a different ground on appeal.
State v. Sellars,
While Dr. Averett should have been listed as an expert, the fact that he testified as an expert for defendants could not have unfairly surprised these plaintiffs. Moreover, the prejudice allegedly resulting from this “surprise” does not rise to the level encountered in Willoughby and Green. Plaintiffs’ contention is without merit.
b.
In their seventh argument, plaintiffs contend that the trial court erred in allowing Doctors Averett, Shull and Johnson to testify as to the standard of care for nurses in hospitals. The substance of their testimony was that it would not have been in conformity with standards of nursing practice for a nurse to disobey a physician’s treatment instructions and that the treatment afforded Mr. Paris in the emergency room was in conformity with professional nursing standards. In their assignments of error, plaintiffs contend that the doctors were not qualified to testify as experts on the standard of care for nurses. In their brief, they argue that the testimony should have been excluded because it directly contradicts the judicially established standard that permits a nurse to disobey instructions that are obviously negligent. We disagree.
Physicians are clearly acceptable experts with regard to the standard of care for nurses.
Haney v. Alexander,
c.
In their eighth argument, plaintiffs contend that it was error to allow defendants to cross examine their expert witness, Dr. Selwyn Rose, regarding his role as an expert witness in two earlier unrelated cases. Dr. Rose had testified as an expert in two well-publicized murder cases and, over objection, was cross examined about his role in these cases. On appeal, plaintiffs contend that defendants were allowed to place before the jury material of questionable relevancy that had the effect of inflaming passion and prejudice against Dr. Rose and his testimony. As plaintiffs concede, counsel must be given a wide latitude on cross examination to test the qualifications of an opposing party’s expert. Plaintiffs contend defendants’ questioning of Dr. Rose exceeded permissible bounds. We disagree.
We note first that Dr. Rose’s testimony was limited to the issue of damages. Since the jury found no negligence, they never reached the issue of damages. Plaintiffs’ counsel’s objection came after several questions in this line had been asked and answered and though the objection was overruled, the question objected to was never answered. Accordingly, there was no evidence admitted to which plaintiffs made a timely objection. Further, our reading of the transcript fails to disclose how plaintiffs were prejudiced by defendants’ questions or by Dr. Rose’s answer. Without a showing of prejudice, a finding of error is not warranted.
Collins v. Lamb,
*382 d.
In their ninth argument, plaintiffs contend that the trial court erred when it excluded testimony regarding statements allegedly made by Dr. Shull during his treatment of Mr. Paris. Plaintiffs’ witnesses were asked what Dr. Shull had said regarding the delay in treating Mr. Paris. Defendants’ objections were sustained. There was no error and no prejudice by these objections being sustained.
Later in the trial, on re-re-redirect examination, Pat Simmons testified over objection by defendants that Dr. Shull had said to her, “I’m not sure that I can save your father’s leg due to the lapse of time of the onset and the time I get him into surgery.” The statement that plaintiffs argue had been erroneously excluded came before the jury in Pat Simmons’ testimony. This assignment of error is overruled. Collins v. Lamb, supra; Brandis, supra, Section 9.
e.
During cross examination of Dr. Averett, he was asked what he would have done if he had seen Mr. Paris in the emergency room and Mr. Paris had been in the same condition as he was in Dr. Averett’s office the next morning. The trial court sustained defendants’ objection to this question and plaintiffs contend it was error to do so. They argue that cross examination is properly limited by considerations of relevance and competence and that this question was not objectionable under this liberal standard. Plaintiffs’ argument here is not persuasive.
Counsel is permitted a liberal cross examination but his questions must nevertheless be based on evidence that is before the court and not on mere conjecture.
State v. Satterfield,
*383 f.
Plaintiffs next contend that it was error to exclude the testimony of their expert, Dr. Neville, as to the standard of care for physician’s assistants. Dr. Neville was asked whether the treatment afforded Mr. Paris in the emergency room on 27 and 28 November 1980 by defendants Kreitz and Dr. Averett was in accordance with the standards of practice among doctors with similar training and experience to Dr. Averett in communities like High Point. Defendants objected and the court sustained the objections to the portion of the question pertaining to physicians’ assistants. Plaintiffs’ contention that this was error is without merit.
Where there is an offer of expert testimony as to an applicable standard of professional care for physicians’ assistants, the witness must first be shown to have a familiarity with the standard of practice (1) among physicians’ assistants with similar training and experience to the person in question, (2) who are situated in the same or similar communities, (3) at the time the alleged malpractice occurred. See Haney v. Alexander, supra.
While Dr. Neville had been duly qualified as an expert vascular surgeon of national repute and had testified in that capacity, no attempt was made to show that he was qualified to testify as to the standard of care for physicians’ assistants. Plaintiffs’ argument that physicians’ assistants are subject to the same standards of care as the physicians for whom they work is without merit. G.S. 90-21.12 provides that a “health care provider” is subject to the “standards of practice among members of the
same health care profession with similar training and experience
situated in the same or similar communities. . . .” [Emphasis added.] Clearly Kreitz, a physician’s assistant, was not subject to the same standard of practice as Dr. Averett, a medical doctor.
See Wall v. Stout,
g-
In their final assignment of error, plaintiffs contend that the trial court erred prejudicially in sustaining defendants’ objection to plaintiffs’ direct examination of Dr. Neville on whether in his opinion, based on the applicable standards of practice, Dr. Aver- *384 ett exercised reasonable care and diligence in his diagnosis and treatment of Mr. Paris on 27 and 28 November 1980. We disagree.
Defendants objected to each question in a series of similar questions. Defendants’ objection to the first question was sustained after Dr. Neville had answered, “He did not.” Defendants’ objection to a second similar question was initially overruled and Neville answered, “He did not.” After a bench conference, defendants’ second objection was sustained but Dr. Neville’s answers were never stricken from the record. Notwithstanding that defendants’ objections were sustained twice, Dr. Neville’s answer remained before the jury. Moreover, several times in response to other questions, Dr. Neville expressed his opinion (1) that Dr. Averett did not meet the applicable standard of care; (2) that Dr. Averett’s initial diagnosis of peripheral vascular insufficiency was wrong in that the symptoms indicated an occlusion; (3) that Dr. Averett should have admitted Mr. Paris to the hospital and consulted a vascular surgeon immediately; and (4) that “the initial problem with the delay in diagnosis was the proximate cause of [Mr. Paris’] amputation.”
Based on the testimony of Dr. Neville that was before the jury, we perceive no prejudice to plaintiffs. This assignment of error is without merit.
Ill
a.
In their fifth argument, plaintiffs contend it was error for the trial court to grant a directed verdict for defendant Hospital. The test for whether a directed verdict is proper is well established. The purpose of a motion for a directed verdict is to test the legal sufficiency of the evidence to support a verdict for the plaintiff and to submit the contested issue to a jury.
E.g., Manganello v. Permastone,
In this case, plaintiffs argue that the evidence was sufficient to establish defendant Hospital’s negligence on two theories and that the motion for directed verdict should have been denied. Under the theory of respondeat superior, plaintiffs argue that the Hospital is liable for the negligence of its employees. Byrd v. Marion General Hospital, supra. Under the theory of corporate negligence, plaintiffs argue that the Hospital violated its direct duty to them to use reasonable care in the treatment of Mr. Paris. Bost v. Riley, supra.
With respect to the theory of respondeat superior, plaintiffs argue that the treatment of Mr. Paris in the emergency room on 27 and 28 November 1980 —the diagnosis and prescription of Defendants Kreitz and Averett —was obviously negligent and that Nurse Garrett was under an obligation either to overrule the diagnosis or to order an alternative treatment. We disagree.
Though plaintiffs in their brief repeatedly characterize the treatment of Mr. Paris by Kreitz and Dr. Averett as “obviously negligent,” the record reveals no evidentiary support for this assertion. As noted earlier, plaintiffs’ argument assumes that Nurse Garrett was in a position to diagnose Mr. Paris. Plaintiffs correctly concede that nurses are not responsible for the diagnosis or treatment of patients. Byrd v. Marion General Hospital, supra. Plaintiffs’ assertions that Mr. Paris was not afforded proper treatment by Hospital employees are supported only by evidence that he did not get the treatment that he and his daughter and son-in-law thought he should have. There is no showing of how the handling of Mr. Paris’ case by the physician and his assistant was so obviously negligent that Nurse Garrett was obliged to intervene and order a different treatment. Whether Kreitz or Averett were negligent at all was, at the time of the motion, not an established fact. What evidence of negligence there was, in our opinion, was not sufficient to warrant submit *386 ting the question of the Hospital’s negligence to the jury on the theory of respondeat superior.
Similarly, we do not think that the evidence would have supported a jury finding of negligence on the theory of corporate liability. Applying Bost v. Riley, supra, to the present case, plaintiffs claim that the Hospital employees “may not close their eyes to the commission of obvious negligence by a physician or a physician’s assistant who has been granted the privilege of using the emergency room.” This argument is no different from plaintiffs’ argument under the respondeat superior theory and fails for the same reasons.
Plaintiffs contend in addition that the Hospital’s negligence existed also in its apparent lack of regard for Mr. Paris’ obvious pain and his daughter’s request that he be examined by the emergency room staff physician. While there is evidence that Mr. Paris was experiencing some pain and that Mrs. Simmons requested that he be seen by the staff physician, we can find no evidence that the Hospital or its employees violated any standard of care owed to Mr. Paris. There is no evidence of a standard by which the Hospital’s handling of the case could be judged by a jury; no indication from persons qualified to testify as to what should have been done under the circumstances; and no testimony that Mr. Paris’ observable manifestations of pain were so severe as to cause a reasonable hospital employee to act any differently. The evidence clearly shows that Mr. Paris was not ignored. He was observed and examined upon arrival by Nurse Garrett and her assistant who determined that his condition was not urgent enough to warrant being seen by the on-duty physician. Further, the Hospital employees were aware that either Dr. Averett or Michael Kreitz was on the way. There is no evidence that the Hospital employees did anything other than what they should have done under the circumstances. Since the evidence fails to establish that the Hospital was negligent, its motion for directed verdict was properly allowed. We need not consider whether the Hospital’s alleged negligence was the proximate cause of plaintiffs’ injury. Plaintiffs’ contention is without merit.
b.
Finally, plaintiffs contend that the trial court erred in denying their motion for a new trial. We disagree.
*387
Under North Carolina law, a motion for a new trial is addressed to the sound discretion of the trial judge who may order a new trial whenever, in his opinion, the verdict rendered is contrary to the weight of the evidence.
Britt v. Allen,
While there is evidence from which the jury could have concluded that Kreitz or Dr. Averett or both were negligent in their treatment of Mr. Paris, there is also evidence tending to show that they were not negligent. Which evidence to believe was properly the province of the jury. We find no abuse of discretion in the trial court’s denial of plaintiffs’ motion for a new trial.
For all of the foregoing reasons, we hold that plaintiffs were afforded a fair trial, free from prejudicial error.
No error.