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Norman v. Branner7/19/2005
causation; and (4) damages." Bridges v. Shelby Women's Clinic, P.A., 72 N.C. App. 15, 19, 323 S.E.2d 372, 375 (1984), disc. review denied, 313 N.C. 596, 330 S.E.2d 605 (1985) (citing Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570, disc. review denied, 304 N.C. 195, 291 S.E.2d 148 (1981)). If a plaintiff fails to present sufficient evidence to establish any one of these elements, a defendant is entitled to a directedverdict. Bridges, 72 N.C. App. at 19, 323 S.E.2d at 375.
In the case before us, defendants contend that proximate cause is lacking. "In a medical malpractice action, the plaintiff must prove that . . . the defendant's treatment proximately caused the injury." White v. Hunsinger, 88 N.C. App. 382, 383, 363 S.E.2d 203, 204 (1988) (citing Ballenger v. Crowell, 38 N.C. App. 50, 54, 247 S.E.2d 287, 291 (1978)). Further, the connection or causation between the negligence and the damage "must be probable, not merely a remote possibility." White, 88 N.C. App. at 387, 363 S.E.2d at 206 (citing Bridges, 72 N.C. App. at 20-22, 323 S.E.2d at 376).
Plaintiff specifically cites as breaches of the standard of care that were the proximate cause of plaintiff's injury: (1) Dr. Branner's failure to order a CT scan; (2) Dr. Branner's failure to prescribe certain antibiotics; and (3) Dr. Branner's failure to instruct plaintiff to come to his office after plaintiff called complaining of pain and fever. However, plaintiff's own expert, Dr. Stephen Katz (Dr. Katz) testified at trial that the object in plaintiff's eye "could be missed on a CT scan, but it is more likely to be picked up on a CT scan[,]" and that it was possible that plaintiff's eye could have been lost even if plaintiff had gone into Dr. Branner's office when he called Dr. Branner's office complaining of pain and fever. Dr. Katz stated that "if everything was done exactly right it's possible to lose that eye." He also stated that " eye may have had a poor outcome with or without appropriate treatment."
Dr. Katz's testimony was the only evidence of malpracticesubmitted by plaintiff. The testimony shows that Dr. Katz was unable to conclude that Dr. Branner's actions were the proximate cause of plaintiff's injury. Thus, plaintiff did not put forth evidence that establishes proximate cause, and defendants were entitled to a directed verdict.
Plaintiff next argues that the trial court erred by finding that the evidence failed to show that plaintiff's damages would have been avoided or lessened by other or different examinations or treatments.
The dispositive issue in the present case is whether Dr. Branner's actions were the proximate cause of plaintiff's injury, and "proof of proximate cause in a malpractice case requires more than a showing that a different treatment would have improved the patient's chances of recovery." White, 88 N.C. App. at 386, 363 S.E.2d at 206 (citing Gower v. Davidian, 212 N.C. 172, 174, 193 S.E. 28, 29 (1937), and Bridges, 72 N.C. App. at 20-22, 323 S.E.2d at 376). Plaintiff must show that there is a probable connection or causation between the negligence and the loss of his eye, not just a possible connection or causation. See White, 88 N.C. App. at 387, 363 S.E.2d at 206.
Under White, plaintiff cannot prevail by merely showing that following Dr. Katz's recommended courses of action would have improved plaintiff's chances of keeping his eye. Dr. Katz testified that plaintiff's chances of keeping his eye would have increased if Dr. Branner had ordered a CT scan, prescribed a different course of antibiotics, and seen plaintiff immediately following plaintiff'scalls to Dr. Branner's office. However, Dr. Katz also testified that "if everything was done ex
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