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Daniels v. Durham County Hospital Corp.7/19/2005
ar to Cox and not an appeal addressing jury instructions based on presentation of the evidence as the issues in Campbell. The dicta in Campbell is "without precedential value" and does not address the issue presented here. 84 N.C. App. at 330, 352 S.E.2d at 911.
Following this Court's holdings in Cox and Clark, plaintiffs forecast no basis to impose a separate duty on the Hospital to obtain informed consent without any evidence to support or a finding to show the treating physician failed to do so. Cox, 54 N.C. App. at 331, 283 S.E.2d at 394-95; Clark, 114 N.C. App. at 315, 442 S.E.2d at 67.
C. Chain of Command
Plaintiffs also argue the Hospital should be held liable because it failed to have "an effective chain of command procedure" in place at the time of Lorren's delivery. Plaintiffs neither present nor cite to any authority to support this argument. N.C.R. App. P. 28(b)(6) (2004) ("Assignments of error . . . in support of which no . . . authority cited, will be taken as abandoned.).
Additionally, plaintiffs argue the Hospital "made no showing before the trial court as to why these negligent failures on itspart were not proximate causes of" Lorren's death. This argument is misplaced. Plaintiffs, not the Hospital, carry the burden of "establish beyond mere speculation or conjecture every essential element of negligence," including the element of proximate cause. Young, 122 N.C. App. at 162, 468 S.E.2d at 263 (quoting Roumillat, 331 N.C. at 68, 414 S.E.2d at 345). Without a forecast of evidence to support this element, plaintiffs cannot shift their burden to defendants. Summary judgment for the Hospital on this issue is proper. Id.
D. Interested Parties
Finally, plaintiffs contend the trial court erred in considering the affidavits and depositions of Drs. Dingfelder and Fried presented by the Hospital in support of its motion for summary judgment. Plaintiffs argue that Drs. Dingfelder's and Fried's testimony were biased because they both were "employed" by the Hospital at the time of the alleged negligent acts and have a personal stake in the outcome. Their argument asserts both doctors were "interested in the outcome of the case" which requires a jury, not the trial court, to act as the fact finder to resolve questions regarding credibility. State Farm Life Ins. Co. v. Allison, 128 N.C. App. 74, 77, 493 S.E.2d 329, 330 (1997), disc. rev. denied, 347 N.C. 584, 502 S.E.2d 616 (1998).
Plaintiffs fail to identify any specific testimony by the doctors or any other evidence considered by the trial court to support their argument. Plaintiffs also fail to forecast any evidence to contradict the doctors' testimony. Without a forecastof disputed testimony or evidence to create a genuine issue of material fact, consideration and resolution of any credibility issues of an alleged interested witness does not deprive the trial court of its ability to rule on a motion for summary judgment. Id.
VI. Conclusion
Although the facts at bar are tragic, plaintiffs settled and dismissed their claims with prejudice against the treating physician, Dr. Dingfelder, without any admission or finding of liability by him. In asserting claims against the Hospital and its nurses, plaintiffs have failed to forecast evidence to show a separate duty imposed on the nurses' or the Hospital's alleged negligence proximately caused Lorren's injuries.
Plaintiffs also failed to show the trial court erred by considering the affidavits of Drs. Dingfelder and Fried. Although the majority's opinion rests on plaintiffs' failure to establish any genuine issue of material fact of defendants owing a duty or breach of that duty, t
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