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Norman v. Branner7/19/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Marvin Norman (plaintiff), a sixty-seven-year-old retired machinist, was mowing his lawn at approximately 4:00 p.m. on 20 September 1999, when an object flew out from the mower and struck him in the corner of his right eye. Plaintiff's cousin took plaintiff to Carolinas Medical Center, and plaintiff's wife (Mrs. Norman) soon arrived at the hospital. Plaintiff was first examined by a nurse, who informed plaintiff that a specialist would be coming in to see him. At some time after 7:00 p.m., defendant Dr. William Branner, III (Dr. Branner) examined plaintiff's eye.
Plaintiff waited for an estimated two hours before an x-ray wasmade of plaintiff's eye. After the x-ray was made, Dr. Branner operated on plaintiff's eye. Plaintiff woke up in intensive care, still feeling pain in his right eye. Plaintiff did not remember speaking to Dr. Branner after the surgery and did not remember Dr. Branner telling him what he found during surgery. At around 10:00 p.m., Dr. Branner spoke to Mrs. Norman and informed her that he was not able to find any objects in plaintiff's eye but had sewn up a "star-like cut" in plaintiff's eye.
After surgery, plaintiff informed Dr. Branner and other hospital staff that he was still in pain. Dr. Branner gave plaintiff some medication for the pain and told plaintiff that "everything was going to be all right." Plaintiff remained in the hospital until about 6:00 p.m. the next day, when Dr. Branner discharged him with prescriptions and instructions to come to his office on 23 September 1999.
After plaintiff returned home, his pain worsened and he had a fever. Mrs. Norman called Dr. Branner's office and informed the staff of plaintiff's symptoms. A staff member told Mrs. Norman to give plaintiff Tylenol and bring plaintiff in for his scheduled appointment on 23 September 1999. When plaintiff's symptoms continued, Mrs. Norman again called Dr. Branner's office, and Dr. Branner's staff repeated the same instructions.
Plaintiff went to Dr. Branner's office on 23 September 1999 for his scheduled appointment. Dr. Branner looked at plaintiff's eye and telephoned another doctor, Dr. Antoszyk. Mrs. Norman spoke with Dr. Antoszyk on the telephone. Dr. Antoszyk asked Mrs. Norman tobring plaintiff to Presbyterian Hospital, where Dr. Antoszyk would be waiting. Mrs. Norman took plaintiff to Presbyterian Hospital. Dr. Antoszyk removed an object from plaintiff's eye, and plaintiff's pain instantly subsided. However, Dr. Antoszyk was unable to save plaintiff's eye and the eye had to be removed.
Plaintiff filed a complaint for medical malpractice against defendants. In an order entered 12 February 2004, the trial court granted a directed verdict for defendants pursuant to Rule 50 of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. ยง 1A-1, Rule 50 (2003). Plaintiff appeals.
Plaintiff argues that the trial court erred by granting a directed verdict for defendants because the evidence shows that Dr. Branner's breach of the standard of care proximately caused plaintiff's injury. Plaintiff contends that the jury should have been allowed to decide if the alleged deviation from the standard of care was a proximate cause of plaintiff's injury. We disagree.
In order to withstand a motion for directed verdict, a plaintiff is required to supply evidence that establishes the following: "(1) the standard of care; (2) breach of the standard of care; (3) proximate
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