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Skinner v. Furman4/5/2005
health care profession with similar training and experience situated in the same or similar communities.'"
In this case, plaintiffs did not offer evidence that Dr. Furman failed to attend the necessary schools or courses or obtain the training required to provide the care that he was rendering. Rather, plaintiffs offered evidence that Dr. Furman failed to understand (1) the risk to Mr. Skinner's pulmonary function caused by the surgery and (2) oxygen saturation rates and the level at which decreased oxygen could cause brain damage. According to plaintiffs, because Dr. Furman did not understand these risks, he took actions that other similarly situated doctors would not have taken and breached his duty of care.
We believe that this theory is encompassed by the instruction that Dr. Furman was required to "provide healthcare in accordance with the standards of practice among members of the same healthcare profession . . . with similar training and experience situated in the same or similar communities at the time the healthcare is rendered." Plaintiffs' argument is simply another example of how Dr. Furman failed to "provide healthcare" in accordance with the standards of practice for surgeons in comparable communities, including knowledge of oxygen saturation rates and the risks ofsurgery upon a patient's pulmonary function. The trial court did not, therefore, err in failing to give plaintiffs' requested instruction.
II.
Plaintiffs' next assignment of error contends that the trial court erred in refusing to give an instruction regarding "circumstantial evidence of negligence." We first observe that plaintiffs are not discussing the general circumstantial evidence instruction (N.C.P.I. _ Civ. 101.45) _ which the trial court did give _ but rather the pattern jury instruction permitting a finding of negligence based on the doctrine of res ipsa loquitur, also called indirect evidence of negligence (N.C.P.I. _ Civ. 809.05).
"'Res ipsa loquitur (the thing speaks for itself) simply means that the facts of the occurrence itself warrant an inference of defendant's negligence, i.e., that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking.'" Sharp v. Wyse, 317 N.C. 694, 697, 346 S.E.2d 485, 487 (1986) (quoting Kekelis, 273 N.C. at 443, 160 S.E.2d at 323). The doctrine of res ipsa loquitur applies only (1) when direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident is under the defendant's control, and (3) the injury is of a type that does not ordinarily occur in theabsence of some negligent act or omission. Grigg v. Lester, 102 N.C. App. 332, 333, 401 S.E.2d 657, 657-68, disc. review denied, 329 N.C. 788, 408 S.E.2d 502 (1991). For res ipsa loquitur to apply to a case, it must be apparent "'as a matter of common experience'" to ordinary individuals that "'the accident could have happened without dereliction of duty on the part of the person charged with culpability.'" Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000) (quoting 57B Am. Jur. 2d Negligence ยง 1826 (1989)) (emphasis omitted).
This Court has recently addressed the restricted use of the res ipsa loquitur doctrine in medical malpractice cases. Howie v. Walsh, __ N.C. App. __, __ S.E.2d __, 2005 N.C. App. LEXIS 393 (Mar. 1, 2005). This Court recognized that, in medical malpractice cases, the average juror is unable to determine whether a plaintiff's injury would rarely occur in the absence of negligence because of (1) the scientific and technical nature of medical treatment and (2) the fact that medical treatment involves inherent risks despite adherence to the appropriate standard of c
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