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Turbeville v. Wilson9/12/2005
an attempted to perform a colonoscopy, which resulted in a perforation of the colon. Cox, 286 S.C. at 413, 334 S.E.2d at 118. The plaintiff presented expert medical testimony that the colon was "totally unprepared" for the procedure such that the physician could not see. Id. at 417, 334 S.E.2d at 120. In fact, the defendant physician himself admitted that the colonoscope should not be advanced when the doctor is unable to adequately see. Id. The supreme court held " xpert testimony is not required to establish negligence when the act complained of was done in the face of a proscription known to the actor." Id.
Dr. Wilson testified that while attempting to surgically relieve the decedent's bowel obstruction, there came a point in time where he could not see the obstruction because he was required to reach into the decedent's bowels. However, he performed a "blunt dissection" in which he manually manipulated the area to relieve the obstruction.
This case is clearly distinguishable from the facts in Cox. Although Dr. Wilson could not see when he performed the blunt dissection, nothing indicates that this method deviated from the standard of care. Dr. McClean did not testify that Dr. Wilson deviated from the standard of care in freeing the bowel adhesions by means of blunt dissection. Moreover, Dr. Wilson never admitted his technique was inappropriate or deviated from the standard of care. Because there was no admission from Dr. Wilson himself that his actions deviated from the standard of care, a layperson could not determine in this complex medical case whether Dr. Wilson's actions in performing a blunt dissection were negligent without the aid of an expert. Thus, the common knowledge exception does not apply in this case.
C. Liability for Dr. Stewart
Citing Wilson v. Martin Memorial Hospital, 61 S.E.2d 102 (N.C. 1950), Turbeville claims Dr. Wilson is liable for any negligence committed by Dr. Stewart because Dr. Stewart was Dr. Wilson's agent.
When a physician for one reason or another is "temporarily unable to attend the patient personally, the physician, without being viewed as having either abandoned or neglected his patient, may make provision for a competent physician to attend the patient." Johnston v. Ward, 288 S.C. 603, 610-11, 344 S.E.2d 166, 170 (Ct. App. 1986), overruled on other grounds by Spahn v. Town of Port Royal, 330 S.C. 168, 499 S.E.2d 205 (1998). "In the absence of negligence in making the substitution, the physician is not liable for injuries resulting from the substitute physician's want of skill or care unless the substitute physician is in his employ or is his agent or partner." Id. at 611, 344 S.E.2d at 170-71.
Initially, we note Turbeville does not claim Dr. Wilson was negligent in making the substitution of Dr. Stewart. Further, there is no evidence in this case that Dr. Wilson exercised any control over Dr. Stewart. Dr. Wilson and Dr. Stewart were not partners in the same practice, Dr. Wilson did not supervise Dr. Stewart, and Dr. Stewart did not consult Dr. Wilson on the days he covered for him. Dr. Stewart testified that his role as the substituting physician was "to care for the patient just like they were your patient." Thus, Dr. Stewart was free to use his own discretion, knowledge, and skill in the care of the patient without any control, interference, or input from Dr. Wilson. Most importantly, the trial court ruled that "Dr. Stewart's actions or inactions did not proximately cause Mr. Turbeville's death." Turbeville did not appeal from this finding. See Brading v. County of Georgetown, 327 S.C. 107, 113, 490 S.E.2d 4, 7 (1997) (holding that an unchallenged ruling, right or wrong, is the law of the case). The
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