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Gregory v. Kilbride6/18/2002
andard of care in this wrongful death action brought jointly on behalf of the third party wife (Kathryn) and the "patient" (Mark). The analysis of the legal duty owed by a defendant to a "patient" in a wrongful death claim based on failure to involuntarily commit a "patient" differs from the analysis of defendant's duty in a wrongful death claim for failure to warn a third party. Based on this Court's analyses in Davis and Pangburn, general negligence is clearly the proper theory to apply in the instant case as it relates to the third party action involving failure to warn the spouse.
The analysis of the proper theory to apply to a claim by a "patient" for the failure to involuntarily commit the "patient" is more a problematic one. A review of the trial court procedure in the instant case is helpful to this analysis. First, in his complaint plaintiff alleges "[Dr. Kilbride's] acts were not in accordance with the standards of practice among members of the same health care profession with similar experience situated in similar communities at the time Dr. Kilbride performed the referenced acts." In response Dr. Kilbride denied the existence of a physician-patient relationship. At trial the parties agreed that this was not a classic medical malpractice action. However, the parties agreed that expert testimony was necessary on the issue of negligence based upon the facts in this case. Following the presentation of evidence at trial, the parties fully participated in the charge conference wherein the court declined to give the classic malpractice instruction but gave a modified instruction based on Alt and Pangburn. The court instructed the Kilbride jury that a psychiatrist must use "accepted professional judgment, professional practice and professional standards of practice exercised by psychiatrists with similar training and experience situated in the same or similar communities . . . ."
The elements of a cause of action based on negligence are: a duty, breach of that duty, a causal connection between the conduct and the injury and actual loss. A duty is defined as an 'obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.' A breach of that duty occurs when the person fails to 'conform to the standard required.' Davis, 121 N.C. App. at 112, 465 S.E.2d at 6 (quoting W. Page Keeton et al., Prosser and Keeton on The Law of Torts ยง 30, at 164-65 (5th ed. 1984) (citations omitted)).
In the instant case, the duty required was that Dr. Kilbride conform to a psychiatric standard of practice. The record reveals the trial court found and the parties agreed, that expert testimony was necessary to prove the applicable psychiatric standard of practice or conduct. Such testimony was also necessary to prove whether or not Dr. Kilbride breached the psychiatric standard of practice, in essence a medical negligence standard.
Plaintiff relies on Davis as support for his contention that requiring proof of liability under medical negligence was in error. However, we are not convinced that Davis or Pangburn would bar expert testimony of a medical negligence standard of care based on the facts of this case as relates to failure to involuntarily commit a "patient." As stated earlier in this opinion, general negligence is the proper theory to apply to a third party action involving failure to warn the spouse based on Davis and Pangburn. In ruling that "Kilbride did not have a separate legal duty to warn Kathy Gregory of Mark Gregory's release separate and apart from any general duty of care imposed under the common law of negligence," it is clear the trial court was not holding plaintiff to a highe
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