# Connette v. Charlotte-Mecklenburg Hosp. Auth.

> Supreme Court of North Carolina · August 19, 2022

URL: https://www.frixlaw.com/law-library/cases/9348050

## Case

- **Court:** Supreme Court of North Carolina
- **Decided:** August 19, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9348050

## How later opinions describe it (automated extraction)

- explaining that medical malpractice actions require a plaintiff to offer competent evidence of “(1) the standard of care, (2) breach of the standard of care, (3) proximate causation, and (4) damages”

## Opinion text

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-95

No. 331PA20

Filed 19 August 2022

EDWARD G. CONNETTE, as guardian ad litem for AMAYA GULLATTE, a Minor,
and ANDREA HOPPER, individually and as parent of AMAYA GULLATTE, a
Minor,

v.
THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY d/b/a
CAROLINAS HEALTHCARE SYSTEM, and/or THE CHARLOTTE-
MECKLENBURG HOSPITAL AUTHORITY d/b/a CAROLINAS MEDICAL
CENTER, and/or THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY
d/b/a LEVINE CHILDREN’S HOSPITAL, and GUS C. VANSOESTBERGEN,
CRNA.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 272 N.C. App. 1 (2020), finding no error in a judgment entered

on 20 August 2018 by Judge Robert C. Ervin in Superior Court, Mecklenburg County.

Heard in the Supreme Court on 8 November 2021.

Edwards Kirby, LLP, by Mary Kathryn Kurth, John R. Edwards, and Kristen
L. Beightol, for plaintiff-appellants.

Robinson, Bradshaw & Hinson, P.A., by Matthew W. Sawchak, Jonathan C.
Krisko, Stephen D. Feldman, Erik R. Zimmerman, and Travis S. Hinman; and
Gallivan, White & Boyd, P.A., by Christopher M. Kelly, for defendant-appellees.

McGuireWoods LLP, by Mark E. Anderson, Joan S. Dinsmore, and Linwood L.
Jones, for North Carolina Healthcare Association, amicus curiae.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Mitchell
Armbruster, for North Carolina Society of Anesthesiologists, amicus curiae.
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MORGAN, Justice.

¶1 Plaintiffs petitioned this Court for discretionary review of the unanimous

opinion rendered by the Court of Appeals in Connette ex rel. Gullatte v. Charlotte-

Mecklenburg Hospital Authority, 272 N.C. App. 1 (2020), in which the lower appellate

court found no error in the trial court’s exclusion of evidence proffered by plaintiffs at

trial in an effort to show that defendant VanSoestbergen breached the professional

duty of care which governed his participation in the preparation and administration

of a course of anesthesia which resulted in profound injuries being suffered by

plaintiff Amaya Gullatte. The trial court’s evidentiary ruling, and the Court of

Appeals’ affirmance of it, was dictated by the application of the principle entrenched

by Byrd v. Marion General Hospital, 202 N.C. 337 (1932) and its progeny which

categorically establishes that nurses do not owe a duty of care in the diagnosis and

treatment of patients while working under the supervision of a physician licensed to

practice medicine in North Carolina. Id. at 341–43. Due to the evolution of the

medical profession’s recognition of the increased specialization and independence of

nurses in the treatment of patients over the course of the ensuing ninety years since

this Court’s issuance of the Byrd opinion, we determine that it is timely and

appropriate to overrule Byrd as it is applied to the facts of this case. Accordingly, we

reverse and remand this matter to the trial court for further proceedings consistent

with this opinion.
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I. Factual and Procedural Background

¶2 On 11 September 2010, an emergency room visit for an upper respiratory

infection revealed that three-year-old Amaya Gullatte was tachycardic, prompting

Amaya’s pediatrician to refer the child to a cardiologist. The cardiologist’s

examination of Amaya disclosed that the youngster was plagued by the heart disease

known as cardiomyopathy, an affliction which enlarges the heart and makes it

difficult for the heart to pump blood correctly. The cardiologist recommended the

performance of an “ablation procedure” on Amaya’s heart in order to address the

disorder. The child was admitted to a Carolinas Medical Center facility on 20 October

2010, where an anesthetics team consisting of anesthesiologist James M. Doyle, M.D.

and Certified Registered Nurse Anesthetist (CRNA) Gus C. VanSoestbergen utilized

a mask to administer the anesthetic sevoflurane to Amaya prior to the surgical

procedure. Shortly after she was induced with the sevoflurane, Amaya went into

cardiac arrest. Although the introduction of resuscitation drugs and the performance

of cardiopulmonary resuscitation (CPR) by Dr. Doyle was able to revive Amaya, still

the approximately thirteen minutes of oxygen deprivation which was experienced by

the child resulted in the onset of permanent brain damage, cerebral palsy, and

profound developmental delay. Plaintiff Edward Connette, as Amaya’s guardian ad

litem, and plaintiff Andrea Hopper, as Amaya’s mother, filed a lawsuit against Dr.

Doyle, CRNA VanSoestbergen, the Charlotte-Mecklenburg Hospital Authority, and
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two additional physicians who treated Amaya.

¶3 The trial spanned three months and concluded in February 2016. While the

jury returned a verdict in favor of the two additional treating physicians, the jury

failed to reach a verdict on the claims against Dr. Doyle and CRNA VanSoestbergen.

Dr. Doyle and his anesthesiology practice proceeded to settle plaintiffs’ claims against

them.

¶4 A second trial commenced in May 2018, in which plaintiffs asserted a number

of claims based on negligence against CRNA VanSoestbergen and the hospital as

VanSoestbergen’s employer. In plaintiffs’ opening statement during the second trial,

their counsel referenced a leading pharmacology textbook’s description of a process

known as intravenous introduction of etomidate, which was depicted as a safer

alternative to the method of introducing sevoflurane through the usage of a mask into

a patient who has cardiomyopathy. Witnesses testified that Dr. Doyle, in his capacity

as the anesthesiologist for the procedure, and CRNA VanSoestbergen, in his

respective role as the nurse anesthetist for the surgery, collaborated on Amaya’s plan

as both medical professionals independently and identically determined that

sevoflurane mask induction was the appropriate course of action to implement. CRNA

VanSoestbergen concurred with Dr. Doyle’s final decision to order this method of the

introduction of the anesthetic into Amaya’s system after the two consulted with one

another about the plan. While the ultimate decision to order the chosen
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anesthesiological procedure rested with the physician Dr. Doyle, the certified

registered nurse anesthetist VanSoestbergen advised the physician, agreed with the

physician, and participated with the physician in the election and administration of

the anesthetic sevoflurane through a mask.

¶5 Plaintiffs were prepared to present evidence through certified registered nurse

anesthetist Dean Cary acting as an expert witness on the manner in which CRNA

VanSoestbergen’s formulation of, affirmation of, and contribution to the decision to

administer sevoflurane to Amaya by utilizing the mask induction procedure rather

than by utilizing an intravenous method to induce anesthesia, allegedly breached the

professional standard of care applicable to VanSoestbergen. However, the trial court

determined that the introduction of evidence regarding a professional standard of

care which should apply to VanSoestbergen in his capacity as a certified registered

nurse anesthetist was precluded by Daniels v. Durham County Hospital Corp., 171

N.C. App. 535 (2005), disc. rev. denied, 360 N.C. 289 (2006), a case which directly

applied this Court’s holding in Byrd to govern the outcome in Daniels and which the

trial court, in turn, directly applied to the present case. Specifically, the trial court

prohibited the introduction of testimony from plaintiffs’ expert witness Cary which

would have tended to show that the standard practice of CRNAs under the medical

facts of Amaya’s case would have expressly prohibited the course of action followed

by CRNA VanSoestbergen. If allowed by the trial court to do so, the expert would
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have testified that an intravenous introduction of a drug other than sevoflurane, such

as etomidate, would have complied with the applicable professional standard of care

for a certified registered nurse anesthetist like VanSoestbergen, while the use of

sevoflurane mask induction in this instance would breach the applicable professional

standard of care. In its ruling which excluded this aspect of evidence from the

testimony rendered by the expert witness Cary, the trial court observed that a nurse

may be liable for independent actions taken against a plaintiff but could not be held

liable for planning and selecting the appropriate anesthesia technique because

nurses operate under the compulsory supervision of physicians licensed to practice

medicine.

¶6 On 17 July 2018, pursuant to North Carolina General Statutes Section 1A-1,

Rule 48, the parties stipulated on the record to the validity of a trial verdict rendered

by nine or more jurors. The jury returned a verdict in favor of VanSoestbergen and,

correspondingly, his hospital employer, and the trial court entered judgment

memorializing the jury’s verdict on 20 August 2018. Plaintiffs appealed, among other

matters, the trial court’s exclusion of plaintiffs’ proffered expert testimony regarding

CRNA VanSoestbergen’s involvement in the determination and implementation of

the allegedly negligent anesthesia plan as a claimed breach of the applicable

professional standard of care. On 16 June 2020, the Court of Appeals affirmed the

trial court’s exclusion of the evidence at issue in a unanimous decision. Connette, 272
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N.C. App. at 5, 13. Plaintiffs filed a Petition for Discretionary Review of the lower

appellate court’s determination, and this Court allowed the petition on 10 March

2021.

II. Analysis

¶7 A trial court’s determination as to the admissibility of evidence, particularly

when such admissibility is called into question on the issue of relevance, is generally

reviewed for abuse of discretion. See, e.g., State v. Williams, 363 N.C. 689, 701–02

(2009), cert. denied 562 U.S. 864 (2010); State v. Jacobs, 363 N.C. 815, 823 (2010).

The trial court’s exclusion of plaintiffs’ proffered testimony in the case sub judice was

governed by the application of Daniels v. Durham County Hospital Corp.,

171 N.C. App. at 538–40, in which the Court of Appeals properly implemented the

unequivocal holding in Byrd that nurses did not owe an independent duty to patients

in the selection and planning of treatment. The existence of a duty of care between a

defendant and a plaintiff is a question of law. See Pinnix v. Toomey, 242 N.C. 358,

362 (1955); see generally Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222,

225–26 (2010) (reciting elements of negligence, including duty of care). “We review

questions of law de novo.” State v. Graham, 379 N.C. 75, 2021-NCSC-125, ¶ 7 (quoting

State v. Khan, 366 N.C. 448, 453 (2013)). A trial court’s determination of the

admissibility of evidence which depends dispositively upon its conclusion regarding a

question of law is likewise reviewed de novo. See e.g., Da Silva v. WakeMed, 375 N.C.
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1, 4–5 (2020).

A. Substantive Law

¶8 Medical malpractice actions in North Carolina are negligence claims upon

which the Legislature has seen fit to erect extra statutory requirements—both

substantive and procedural—which a plaintiff must satisfy in order to sustain such

allegations. Turner v. Duke Univ., 325 N.C. 152, 162 (1989) (explaining that medical

malpractice actions require a plaintiff to offer competent evidence of “(1) the standard

of care, (2) breach of the standard of care, (3) proximate causation, and (4) damages”);

see N.C.G.S. § 1A-1, Rule 9(j) (2021) (requiring dismissal of medical malpractice

complaints which do not include one of three enumerated averments). Medical

malpractice actions are prescribed by a specific set of enactments found in Article 1B

of Chapter 90 of the North Carolina General Statutes. N.C.G.S. §§ 90-21.11 to -21.19B

(2021). A medical malpractice action is defined as a “civil action for damages for

personal injury or death arising out of the furnishing or failure to furnish professional

services in the performance of medical, dental, or other health care by a health care

provider.” Id. § 90-21.11(2)(a). The statute expressly contemplates medical

malpractice actions against registered nurses for professional services rendered in

the performance of “medicine,” “nursing,” providing “assistance to a physician,” and

other types of health care listed therein. Id. § 90-21.11(1)(a). In order to sustain a

medical malpractice action, it is a plaintiff’s burden to establish by the greater weight
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of the evidence that a defending party breached its duty of care by exhibiting

professional conduct which was “not in accordance with the standards of practice

among members of the same health care profession with similar training and

experience situated in the same or similar communities under the same or similar

circumstances at the time of the alleged act giving rise to the cause of action.” Id. §

90-21.12(a). Therefore, these statutes collectively create the requirement of

registered nurses to act in accordance with applicable and appropriate standards of

practice and establish the burden of proof which a plaintiff must satisfy in order to

demonstrate that a registered nurse has violated the expected applicable professional

standard of care.

¶9 Upon this Court’s issuance of the Byrd decision in 1932, nurses have not been

subject to culpability for the performance of their roles in the administration of any

negligent treatment of a patient and could only be held liable for the execution of

their primary function within the medical community, which was to “obey and

diligently execute the orders of the physician or surgeon in charge of the patient,

unless, of course, such order was so obviously negligent as to lead any reasonable

person to anticipate that substantial injury would result.” Byrd, 202 N.C. at 341.

While a nurse could be held liable for how nursing duties were executed outside the

supervision of a physician, it was clear from Byrd that a nurse could not be held liable

for what the nurse did to “diligently execute the orders of the physician.” Id. at 341–
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43. In Byrd, this Court was asked to answer the legal question: “What duty does a

nurse owe to a patient?” Id. at 341. In responding to this query, we reasoned that

“[n]urses are not supposed to be experts in the technique of diagnosis or the

mechanics of treatment”; instead, “the law contemplates that the physician is solely

responsible for the diagnosis and treatment of his patient.” Id. at 341–42. Thus, a

nurse could only be held liable for the negligent treatment of a patient when (1) the

nurse acted without direction from and outside the presence of a physician, and thus

without the requisite “acquiescence and implied approval of the physician,” or (2) the

nurse was undertaking to carry out a physician’s order that “was so obviously

negligent as to lead any reasonable person to anticipate that substantial injury would

result.” Id. at 343, 341. As a result, nurses were largely exempted from the existence

of any applicable professional standard of care, because nurses were deemed by Byrd

to be sheltered from exposure to liability for negligence when performing duties under

the supervision of a physician and were only vulnerable to negligence claims due to

the performance of their professional duties and responsibilities when substandard

execution of such nursing expectations was obvious.

¶ 10 North Carolina was the first state in the nation to regulate the registration of

practicing nurses with the creation of The Board of Examiners of Trained Nurses of

North Carolina in 1903. Act of Mar. 3, 1903, ch. 359, 1903 N.C. Pub. Laws 58b

(captioned An Act to Provide for the Registration of Trained Nurses). By the time that
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Byrd was decided almost thirty years later, the regulation of nursing was still

confined to the examination and licensure of applicants who wished to use the title

“trained,” “graduate,” “licensed,” or “registered” nurse. N.C. Code Ann. §§ 6729, 6734,

6738 (Michie 1935). Licensure did not become a prerequisite to practice nursing

generally until 1965. Act of May 18, 1965, ch. 578, § 1, 1965 N.C. Sess. Laws (Reg.

Sess. 1965) 624, 624 (captioned An Act to Rewrite and Consolidate Articles 9 and 9A

of Chapter 90 of the General Statutes with Respect to the Practice of Nursing). In

1932, applicants for registration with the Board, which had been renamed The Board

of Nurse Examiners of North Carolina, were required to be at least twenty-one years

of age, of good moral character, a high school graduate, and either a graduate of a

school of nursing or one who had practiced nursing in another state under similar

registration requirements. N.C. Code Ann. §§ 6731, 6733 (Michie 1935). The Board of

Nurse Examiners was empowered with the authority to conduct periodic

examinations “in anatomy and physiology, materia medicia, dietetics, hygiene, and

elementary bacteriology, obstetrical, medical and surgical nursing, nursing of

children, contagious diseases and ethics in nursing, and such other subjects as may

be prescribed by the examining board.” Id. § 6732. The examination fee totaled ten

dollars, id., and the Board possessed the power to revoke a registered nurse’s license

for cause pursuant to notice and hearing requirements, id. § 6737. Despite the

sweeping authority which was vested in the North Carolina Board of Nurse
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Examiners as the importance and influence of nurses within the field of medicine

grew, nonetheless the express and specific identification of a nurse’s role of legal

responsibility within the medical industry remained undefined by any statutory

enactment of the Legislature. Consequently, by way of the Byrd decision, this Court

filled this legal culpability vacuum with the pronouncement that a nurse could only

“be held liable in damages for any failure to exercise ordinary care” when working

outside of the immediate supervision of a physician or when the treatment ordered

by the physician was “obviously negligent or dangerous.” Byrd, 202 N.C. at 343.

¶ 11 The nursing profession has evolved tremendously over the ninety years since

Byrd. Since 1965, all persons practicing as nurses in North Carolina must be licensed

by the North Carolina Board of Nursing (the Nursing Board) as either a “registered

nurse” or “licensed practical nurse.” Ch. 578, § 1, 1965 N.C. Sess. Laws at 625, 628–

29; N.C.G.S. § 90-171.43 (2021). The Nursing Board is empowered to adopt, amend,

repeal, and interpret rules pursuant to North Carolina’s Nursing Practice Act, a

comprehensive enactment regulating the nursing profession found in Chapter 90,

Article 9A of the North Carolina General Statutes. See N.C.G.S. § 90-171.23(b) (2021)

(listing the Board’s duties and powers).

¶ 12 With particular regard to registered nurses in the state, the Legislature has

defined the “practice of nursing by a registered nurse” as having ten components:

a. Assessing the patient's physical and mental health,
including the patient's reaction to illnesses and treatment
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regimens.

b. Recording and reporting the results of the nursing
assessment.

c. Planning, initiating, delivering, and evaluating
appropriate nursing acts.

d. Teaching, assigning, delegating to or supervising other
personnel in implementing the treatment regimen.

e. Collaborating with other health care providers in
determining the appropriate health care for a patient but,
subject to the provisions of G.S. 90-18.2, not prescribing a
medical treatment regimen or making a medical diagnosis,
except under supervision of a licensed physician.

f. Implementing the treatment and pharmaceutical regimen
prescribed by any person authorized by State law to
prescribe the regimen.

g. Providing teaching and counseling about the patient’s
health.

h. Reporting and recording the plan for care, nursing care
given, and the patient’s response to that care.

i. Supervising, teaching, and evaluating those who perform
or are preparing to perform nursing functions and
administering nursing programs and nursing services.

j. Providing for the maintenance of safe and effective nursing
care, whether rendered directly or indirectly.

Id. § 90-171.20(7) (2021) (emphases added).

¶ 13 The Nursing Board has further refined the scope of nursing practice. The

profession’s practice has evolved to include (1) the assessment of nursing care needs

resulting in the “[f]ormulation of a nursing diagnosis,” (2) developing care plans
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which include the determination and prioritization of nursing interventions, and (3)

implementing nursing activities. Components of Nursing Practice for the Registered

Nurse, 21 N.C. Admin. Code 36.0224 (2021). When a registered nurse “assumes

responsibility directly or through delegation for implementing a treatment or

pharmaceutical regimen,” the nurse becomes accountable for “anticipating those

effects that may rapidly endanger a client’s life or well-being.” License Required, id.

36.0221(c)(7) (2021). Lastly, the Nursing Board also oversees the additional licensure

of certain types of registered nurses for specialized roles; namely, Certified Registered

Nurse Anesthetist, Certified Nurse Midwife, Clinical Nurse Specialist, and Nurse

Practitioner. These categories of advanced practice registered nurses must all obtain

additional education and certifications to practice in their respective recognized,

specific, and unique specialties. N.C. Bd. of Nursing, APRN Requirements At-A-

Glance, https://www.ncbon.com/myfiles/downloads/licensure-listing/aprn/advance-

practice-at-a-glance.pdf (last visited Aug. 4, 2022) (listing licensure requirements for

Advanced Practice Registered Nurses); 21 N.C. Admin. Code 36.0120(6), 36.0226,

36.0228, 36.0801–.0817 (2021).

¶ 14 Pursuant to the statutory grant of rulemaking power afforded to it in N.C.G.S.

§ 90-171.23(b), the Nursing Board has defined the practice of a certified registered

nurse anesthetist as the performance of “nurse anesthesia activities in collaboration

with a physician, dentist, podiatrist, or other lawfully qualified health care provider.”
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Nurse Anesthesia Practice, 21 N.C. Admin. Code 36.0226(a) (emphasis added). The

rules further expound upon this collaboration as

a process by which the certified registered nurse
anesthetist works with one or more qualified health care
providers, each contributing his or her respective area of
expertise consistent with the appropriate occupational
licensure laws of the State and according to the established
policies, procedures, practices, and channels of
communication that lend support to nurse anesthesia
services and that define the roles and responsibilities of the
qualified nurse anesthetist within the practice setting.

Id. 36.0226(b). Such collaboration between a physician and a registered nurse such

as a CRNA is contemplated to include “participating in decision-making and in

cooperative goal-directed efforts.” Components of Nursing Practice for the Registered

Nurse, id. 36.0224(g)(2). Depending on “the individual’s knowledge, skills, and other

variables in each practice setting,” CRNAs are expressly allowed to (1) select and

administer preanesthetic medications, (2) select, implement, and manage general

anesthesia consistent with the patient’s needs and procedural requirements, and (3)

initiate and administer several palliative and emergency medical procedures. Id.

36.0226(c)–(d). It is clear that CRNAs must fulfill these duties under the supervision

of a licensed physician. N.C.G.S. § 90-171.20(7)(e). But, it is also apparent that the

independent status, the professional stature, the individual medical determinations,

and the shared responsibilities with a supervising physician have grown in

significance and in official recognition since Byrd for a nurse such as a certified
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registered nurse anesthetist.

B. Historical Application

¶ 15 Amidst this growing authority and influence which have been wielded by

members of the nursing profession during the span of ninety years since this Court

issued the Byrd decision, the state’s appellate courts have applied Byrd with

increasing strain. In Blanton v. Moses H. Cone Memorial Hospital, Inc., this Court

did not apply Byrd as a bar to a plaintiff’s claims against a nurse, but utilized Byrd

to reiterate that a plaintiff’s claim against a nurse is valid “if the plaintiff can prove

an agent of the hospital followed some order of the doctor which” was “so obviously

negligent as to lead any reasonable person to anticipate that substantial injury would

result to the patient by the execution of such order.” 319 N.C. 372, 376 (1987) (quoting

Byrd, 202 N.C. at 341).

¶ 16 Several years after Blanton, this Court was presented with “the opportunity to

test the liability of a surgeon for the negligence of operating room personnel under

the borrowed servant rule.” Harris v. Miller, 335 N.C. 379, 388 (1994). In Harris, the

plaintiff sued an orthopedic surgeon for medical malpractice under a theory of

vicarious liability, alleging that the physician was responsible pursuant to the

doctrine of respondeat superior for a CRNA’s negligent administration of anesthesia

while the nurse was under the physician’s direct supervision during a surgical

procedure. Id. at 383. The trial court entered a directed verdict in favor of the
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physician after finding that the plaintiff had failed to establish a master-servant

relationship between the independent physician and the CRNA who was employed

by the hospital where the physician performed the surgery. The Court of Appeals

affirmed the trial court’s decision. Although this Court “held that the Court of

Appeals erred in affirming the trial court’s directed verdict for Dr. Miller on plaintiff’s

vicarious liability claim” and “reverse[d] and remand[ed] for a new trial on this

claim,” id. at 400, nonetheless, this Court, in its decision in Harris, offered

observations which were not expressly focused on Byrd but still served to dilute the

efficacy of the foundation which has undergirded Byrd. In examining the relevant

case law concerning the existence of employer-employee relationships in the context

of supervising surgeons and the operating room personnel who participate in a

surgical procedure, this Court identified the pivotal nature of the application of the

Byrd approach in the resolution of Harris. The seminal case on the issue presented

in Harris—Jackson v. Joyner, 236 N.C. 259 (1952)1—had given rise to a judicially

created “presumption that the surgeon in charge controls all operating room

personnel,” which would inure to the benefit of the plaintiff in Harris by establishing

a per se determination of liability on the part of the physician for the negligence of

the nurse under the physician’s supervision. 335 N.C. at 388–89. While the Court

reasoned that the presumption “may have been appropriate in an era in which

1 Jackson has been effectively overruled by Harris. See Harris, 335 N.C. at 391.
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hospitals undertook only to furnish room, food, facilities for operation, and

attendance” and “in which only physicians had the expertise to make treatment

decisions,” the Court concluded that such a presumption “is no longer appropriate in

this era.” Id. at 389 (extraneity omitted) (citing Byrd, 202 N.C. at 341–42, for the

proposition concerning the exclusive expertise of physicians making treatment

decisions). The Harris Court in 1994 noted that since the issuance of Jackson in 1952,

hospitals had transformed into treatment centers and now exercised “significant

control over the manner in which their employees, including staff physicians, provide

treatment.” Id. at 390. With this acknowledgment, the Court opined that “it is no

longer appropriate” to presume that a hospital which has hired its own employees,

such as nurses, cedes control over them to a supervising physician under a traditional

“borrowed employee” analysis simply because the hospital had assigned the nurse to

be directly supervised by an independent surgeon. Id. at 389–90. While Jackson

derived its presumption “from the mere fact that [the defendant] was the ‘surgeon in

charge,’ ” this paradigm of the physician fully controlling a supervised nurse and all

other medical personnel involved in a surgical procedure, resulting in the physician’s

ultimate responsibility for each medical contributor’s actions in conjunction with the

surgery, “no longer reflects . . . . [p]resent[-]day hospitals.” Id. at 389 (quoting Rabon

v. Rowan Mem’l Hospital, Inc., 269 N.C. 1, 11 (1967)). The Court stressed this medical

field evolution with the further recognition in Harris, which we find particularly
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relevant in the instant case which we now decide twenty-eight years later:

[S]urgeons are no longer the only experts in the operating
room. The operating team now includes nurses,
technicians, interns, residents, anesthetists,
anesthesiologists and other specialized physicians. All of
these are experts in their own fields, having received
extensive training both in school and at the hospital. When
directed to perform their duties, they do so without further
instruction from the surgeon, relying instead on their own
expertise regarding the manner in which those duties are
performed. Some of them, like anesthesiologists and
technicians, may have expertise not possessed by the
surgeon. Thus, the surgeon will in some cases be ill-
equipped, if not incapable, of controlling the manner in
which assisting personnel perform their duties.

Id. at 390–91 (emphases added) (citations omitted).

¶ 17 Although the Court made these observations in Harris concerning the

antiquated view of the total subservience of a nurse and other members of a medical

team to a supervising physician, nonetheless, the Court’s resolution of the vicarious

liability claims in Harris based upon the specific analysis of the tort’s elements

regarding the doctrine of respondeat superior and the accompanying “borrowed

servant” doctrine allowed Byrd to retain its precedential status on the distinguishable

legal issue of a nurse’s inability to be held liable on a theory of negligence for acts

performed under the supervision of a physician. With Byrd remaining intact as

controlling authority on this issue, the Court of Appeals followed this case precedent

in determining Daniels in 2005. In Daniels, the plaintiffs brought legal action against

the defendant hospital upon the death of their baby who died seven months after
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suffering injuries which the plaintiffs alleged were sustained during their daughter’s

delivery at the hospital. 171 N.C. App. at 536–37. In their lawsuit against the hospital

and the mother’s private physician who performed the baby’s delivery, as well as

other individuals that included two of the hospital’s nurses who were involved in the

delivery, the plaintiffs alleged that the defendants were jointly and severally liable

on the bases of negligence and medical malpractice for the baby’s injuries and

subsequent death. Id. at 537. In affirming the trial court’s entry of summary

judgment for the hospital on the plaintiffs’ claim that the delivery nurses failed to

oppose the doctor’s decision to perform the delivery as the physician directed, the

Court of Appeals stated:

[P]laintiffs’ evidence is not sufficient to meet the standard
set forth in Byrd v. Marion Gen. Hosp.

Under Byrd, a nurse may not be held liable for
obeying a doctor’s order unless such order was so obviously
negligent as to lead any reasonable person to anticipate
that substantial injury would result to the patient from the
execution of such order or performance of such direction.
The Court stressed that the law contemplates that the
physician is solely responsible for the diagnosis and
treatment of his patient. Nurses are not supposed to be
experts in the technique of diagnosis or the mechanics of
treatment.

Although these principles were set out more than 70
years ago, they remain the controlling law in North
Carolina. Plaintiffs refer repeatedly to the responsibilities
of the “delivery team” and argue for a collaborative process
with joint responsibility. While medical practices,
standards, and expectations have certainly changed since
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1932 [when the Supreme Court of North Carolina decided
Byrd] and even since 1987 [when the Supreme Court of
North Carolina decided Blanton], this Court is not free to
alter the standard set forth in Byrd and Blanton.

Id. at 538–39 (extraneity omitted).

¶ 18 Just as it did in its opinion in Daniels, the Court of Appeals in the present case

likewise recognized that it was bound by the governing, albeit obsolescent, approach

articulated in Byrd regarding a nurse’s blanket lack of exposure to liability for

negligence when acting under the direction of a supervising physician. In its issued

opinion in this matter, the lower appellate court assessed plaintiffs’ claim “that

VanSoestbergen breached the applicable standard of care by agreeing, during the

anesthesia planning stage, to induce Amaya with sevoflurane using the mask

induction procedure.” Connette, 272 N.C. App. at 4. The Court of Appeals went on to

further detail the specific contentions of plaintiffs:

Plaintiffs asserted that certified registered nurse
anesthetists are highly trained and have greater skills and
treatment discretion than regular nurses. Moreover, they
asserted, nurse anesthetists often use those skills to
operate outside the supervision of an anesthesiologist.
Plaintiffs also argued that VanSoestbergen was even more
specialized than an ordinary nurse anesthetist because he
belonged to the hospital’s “Baby Heart Team” that focused
on care for young children.

Id. at 4–5.

¶ 19 In its thorough analysis, the Court of Appeals began with the trial court’s

recognition of our decision in Daniels, which in turn was premised on our decision in
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Byrd, as the trial court excluded plaintiffs’ proffered expert testimony in support of

their claim against defendant VanSoestbergen that the CRNA “breached a standard

of care by agreeing to mask inhalation with sevoflurane.” Id. at 5. The Court of

Appeals explained that “[t]he trial court concluded that a nurse may be liable for

improperly administering a drug, but not for breaching a duty of care for planning

the anesthesia procedure and selecting the appropriate technique or drug protocol.”

Id.

¶ 20 The lower appellate court continued its examination by citing Byrd, observing

that “[n]early a century ago, a plaintiff sought to hold a nurse liable for decisions

concerning diagnosis and treatment.” Id. The Court of Appeals attributed guidance

from Byrd in recalling notable principles from our opinion in that case:

Our Supreme Court declined to recognize the
plaintiff’s legal claim [in Byrd], explaining that “nurses, in
the discharge of their duties, must obey and diligently
execute the orders of the physician or surgeon in charge of
the patient.” The Court held that the “law contemplates
that the physician is solely responsible for the diagnosis
and treatment of his patient. Nurses are not supposed to
be experts in the technique of diagnosis or the mechanics
of treatment.”

Id. at 6 (quoting Byrd, 202 N.C. at 341–42). Upon remarking that “[s]ince Byrd, this

[c]ourt repeatedly has rejected legal theories and claims based on nurses’ decisions

concerning diagnosis and treatment of patients,” id., the lower appellate court

replicated the type of language which it employed in Daniels in rendering the
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following observations as the Court of Appeals determined that the trial court did not

commit error:

In short, as this [c]ourt repeatedly has held in the
last few decades, trial courts (and this [c]ourt) remain
bound by Byrd, despite the many changes in the field of
medicine since the 1930s. Thus, the trial court properly
determined that Plaintiffs’ claims based on
VanSoestbergen’s participation in developing an
anesthesia plan for Amaya are barred by Supreme Court
precedent.

We acknowledge that Plaintiffs have presented
many detailed policy arguments for why the time has come
to depart from Byrd. We lack the authority to consider
those arguments. We are an error-correcting body, not a
policy-making or law-making one. And, equally important,
Byrd is a Supreme Court opinion. We have no authority to
modify Byrd’s comprehensive holding simply because times
have changed. Only the Supreme Court can do that.

Id. (extraneity omitted).

C. Revisiting Byrd

¶ 21 Having explored the evolution of the nursing industry in North Carolina in the

context of the medical field’s promotion of, and deference to, the independent abilities

of nurses, coupled with the North Carolina appellate courts’ concomitant recognition

of this shift in the nine decades since Byrd as a nurse’s legal culpability appropriately

has grown commensurate with professional responsibility, this Court deems it to be

opportune to implement its observations articulated in Harris and to ratify the

appropriateness intimated in Daniels and the present case by the Court of Appeals
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to revisit Byrd in light of the increased, influential roles which nurses occupy in

medical diagnosis and treatment. We hold that even in circumstances where a

registered nurse is discharging duties and responsibilities under the supervision of a

physician, a nurse may be held liable for negligence and for medical malpractice in

the event that the registered nurse is found to have breached the applicable

professional standard of care. To the extent that this Court’s decision in Byrd v.

Marion General Hospital establishes a contrary principle, we reverse Byrd. We

expressly note that our decision in the present case does not disturb in any way the

principle enunciated in Byrd that “nurses, in the discharge of their duties,” when they

“obey and diligently execute the orders of the physician or surgeon in charge of the

patient,” may be held liable when “such order was so obviously negligent as to lead

any reasonable person to anticipate that substantial injury would result to the

patient from the execution of such order or performance of such direction.” 202 N.C.

at 341.

¶ 22 With the reversal of this Court’s holding in Byrd and its progeny which

systematically prevented a registered nurse from being liable for the negligent

execution of nursing duties and responsibilities which were performed under the

auspices of a supervising physician, we are mindful to avoid any intrusion upon the

exclusive authority of the Legislature to reach complex policy judgments and

consequently to enact statutory laws which are consistent with these determinations
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with regard to the creation of new causes of action or theories of liability. While the

Legislature established the standard for recovery in civil actions for damages for

personal injury or death in medical malpractice claims against registered nurses

through the collective enactment of N.C.G.S. §§ 90-21.11 through 90-21.19B,

nonetheless, the law-making body has been silent regarding further enactments

which refine or interpret this body of statutory law. As we earlier noted, the finite

principle of law in Byrd which we overturn in the instant case was instituted by this

Court in the dearth of any express and specific decree from any empowered authority

which addressed the manner and extent of a registered nurse’s legal culpability in

situations wherein such a nurse is subject to negligence and medical malpractice

claims. Because we established the legal principle at issue in Byrd and no intervening

enactment or policy has emerged to change it, we are properly positioned to reverse

Byrd without treading upon the Legislature’s domain as we fulfill this Court’s charge

to interpret the law.

III. Conclusion

¶ 23 This Court recognizes the impracticalities and inconsistencies of the ongoing

application of the disputed and outdated principle in Byrd to the realities of the

advancement of the field of medicine with regard to the ascension of members of the

nursing profession to statuses within the medical community which should

appropriately result in an acknowledgement of their elevated station and their
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commensurate elevated responsibility. The expanding authority, recognition, and

independence of nurses, which have steadily evolved as these professionals,

exemplified by those who have achieved identified specializations and certifications,

have sufficiently risen within the ranks of the field of medicine to earn levels of

autonomy and influence which formerly were fully withheld. Pursuant to N.C.G.S. §

90-171.20(7), registered nurses now have the ability, inter alia, to collaborate with

other health care providers in determining the appropriate health care for a patient;

to implement the treatment and pharmaceutical regimen prescribed by any person

authorized by state law to prescribe the regimen; and to plan, initiate, deliver, and

evaluate appropriate nursing acts. As a certified registered nurse anesthetist,

defendant VanSoestbergen in the instant case is a beneficiary of these heightened

responsibilities which have been accorded to registered nurses and, with these

heightened powers and the autonomy recognized by law come heightened

responsibilities recognized by law.

¶ 24 The trial record developed in this case indicates that the trial court excluded

from evidence the proffered testimony of plaintiffs’ witness who was available to

render expert testimony concerning CRNA VanSoestbergen’s alleged breach of the

applicable professional standard of care. While the application of Byrd has previously

operated to prevent the admission into evidence of such testimony pursuant to this

Court’s announced principle in Byrd that nurses cannot be held liable for the
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discharge of their duties when obeying and diligently executing the orders of a

supervising physician due to the physician’s sole responsibility for the diagnosis and

treatment of the patient, our reversal of this principle, as espoused in Byrd, compels

a new trial. Accordingly, the trial court’s exclusion of plaintiffs’ expert testimony is

reversed, and this case is remanded to the Court of Appeals for further remand to the

trial court for a new trial.

REVERSED AND REMANDED.

Justice ERVIN and Justice BERGER did not participate in the consideration

or decision of this opinion.
Justice BARRINGER dissenting.

¶ 25 The issue before this Court is whether a certified registered nurse anesthetist

(CRNA) who collaborates with a doctor to select an anesthesia treatment can be liable

for negligence in the selection of that treatment. Since 1932, this Court has held no,

and the legislature has never required otherwise. In judicially changing this

standard, the three-justice majority appears to create liability without causation—

allowing a nurse to be held liable for negligent collaboration in the treatment

ultimately chosen by the physician. Such a policy choice should be made by the

legislature, not merely three Justices of this Court. Accordingly, I respectfully

dissent.

I. Factual Background

¶ 26 Plaintiffs are the guardian ad litem and the mother of the juvenile who was

injured in this case. The juvenile suffered from a serious case of dilated

cardiomyopathy, a heart disease. Due to the juvenile’s serious heart conditions, her

cardiologist recommended the juvenile undergo a radiofrequency ablation procedure

to try to regulate her heart rhythm. A doctor, who is not a party to this case, prepared

an anesthesia treatment plan for the procedure. The anesthesia treatment plan was

to administer sevoflurane through inhalation induction and then switch to an

intravenous induction after the juvenile was asleep. Defendant, a CRNA, assisted

with the procedure, collaborating with the doctor on the treatment plan and helping
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to administer the anesthetic. The doctor testified that as the doctor “it is my

responsibility” to develop and prescribe the anesthesia treatment, though he and

defendant CRNA had independently reached the same conclusion regarding which

anesthesia treatment plan to use.

¶ 27 After the juvenile received the sevoflurane, her heart rate started dropping

significantly. The doctor provided resuscitation drugs and performed chest

compressions for approximately twelve-and-a-half minutes. During that time, the

juvenile suffered oxygen deprivation to her brain, resulting in cerebral palsy and

global developmental delay. Plaintiffs sued defendants for negligence.

¶ 28 At trial, the trial court held that only a doctor, not a nurse, can be liable for the

selection of an anesthesia treatment under Daniels v. Durham County Hospital Corp.,

171 N.C. App. 535 (2005). Accordingly, plaintiffs were prohibited from admitting

evidence concerning whether defendant CRNA breached a duty of care by failing to

recommend a different anesthetic drug or better administration technique. The trial

court concluded that evidence of a better anesthesia treatment was not relevant

under Rule 401 of the North Carolina Rules of Evidence because it did not make some

fact material to the case more or less likely to be true. At the conclusion of the trial,

the jury found that the juvenile was not injured by defendant CRNA’s negligence.

¶ 29 Plaintiffs appealed, arguing that the trial court erred by granting defendants’

motion to exclude the evidence of a better anesthesia treatment. However, the Court
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of Appeals held that the trial court properly allowed defendants’ motion to exclude

evidence that defendant CRNA breached the applicable standard of care by agreeing

to induce the juvenile with sevoflurane using inhalation since the doctor, not the

nurse, was responsible for selecting an anesthesia treatment under Daniels. Connette

v. Charlotte-Mecklenburg Hosp. Auth., 272 N.C. App. 1, 4–6 (2020). Further, despite

plaintiffs’ policy arguments that the practice of medicine had evolved beyond Daniels,

rendering it obsolete, the Court of Appeals held that it was bound by Daniels because

Daniels followed this Court’s decision in Byrd v. Marion General Hospital, 202 N.C.

337 (1932). Connette, 272 N.C. App. at 6. Thus, the Court of Appeals found no error

in the trial court’s ruling. Id. at 6–7.

¶ 30 Plaintiffs then petitioned this Court, asking us to allow discretionary review of

the case to address whether Byrd is still good law. Despite the fact that two members

of this Court were recused in this case, review was allowed.

II. Standard of Review

¶ 31 “We review relevancy determinations by the trial court de novo before applying

an abuse of discretion standard to any subsequent balancing done by the trial court.”

State v. Triplett, 368 N.C. 172, 175 (2015). Thus, “[a] trial court’s rulings on relevancy

are technically not discretionary, though we accord them great deference on appeal.”

State v. Lane, 365 N.C. 7, 27 (2011).
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III. Analysis

¶ 32 “It is axiomatic that only relevant evidence is admissible at trial, while

irrelevant evidence is inadmissible.” State v. Hembree, 368 N.C. 2, 16 (2015). Rule

401 defines relevant evidence as “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401

(2021).

¶ 33 Here, the trial court held that the evidence of defendant CRNA’s ability to

suggest an alternative anesthesia treatment was inadmissible under Rule 401

because it was not relevant to whether defendant CRNA was liable for breaching the

standard of care. Daniels took its holding from this Court’s decision in Byrd. Daniels,

171 N.C. App. at 538. Byrd “stressed that ‘[t]he law contemplates that the physician

is solely responsible for the diagnosis and treatment of his patient,’ ” id. (alteration in

original) (quoting Byrd, 202 N.C. at 341–42), and so held that “nurses, in the

discharge of their duties, must obey and diligently execute the orders of the physician

or surgeon in charge of the patient, unless . . . such order was so obviously negligent

as to lead any reasonable person to anticipate that substantial injury would result to

the patient from the execution of such order or performance of such direction,” Byrd,

202 N.C. at 341. Therefore, in accordance with Byrd, the Court of Appeals in Daniels
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rejected plaintiffs’ request to hold the nurse liable “for a collaborative process with

joint responsibility.” Daniels, 171 N.C. App. at 539.

¶ 34 Byrd also recognized that obviously in the absence of instruction from a

physician, a nurse who undertakes to administer treatment when the physician is

not present “will be held liable in damages for any failure to exercise ordinary care.”

Byrd, 202 N.C. at 343. However, “if the physician is present and undertakes to give

directions, or, for that matter, stands by, approving the treatment administered by

the nurse, unless the treatment is obviously negligent or dangerous, as hereinbefore

referred to, then in such event the nurse can then assume that the treatment is proper

under the circumstances, and such treatment, when the physician is present,

becomes the treatment of the physician and not that of the nurse.” Id.

¶ 35 Plaintiffs do not dispute that, under Byrd, evidence of a better anesthesia

treatment was not relevant because the doctor, not defendant CRNA, bore the sole

responsibility for the selection of which treatment should be used. After all, if a

doctor’s inaction while observing a nurse select a treatment does not waive that

doctor’s sole responsibility for the selection of that treatment, see id., then that

doctor’s collaboration with the nurse in selecting the treatment likewise cannot waive

the doctor’s exclusive responsibility. Nor do plaintiffs argue that the anesthesia

treatment chosen in this case “was so obviously negligent as to lead any reasonable

person to anticipate that substantial injury would result to the patient” from it. Id.
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Instead, plaintiffs’ sole arguments are that Byrd and its progeny should be

overturned or limited to their facts.

¶ 36 “This Court has never overruled its decisions lightly.” Rabon v. Rowan Mem’l

Hosp., Inc., 269 N.C. 1, 20 (1967) “The salutary need for certainty and stability in the

law requires, in the interest of sound public policy, that the decisions of a court of last

resort affecting vital business interests and social values, deliberately made after

ample consideration, should not be disturbed except for most cogent reasons.” Potter

v. Carolina Water Co., 253 N.C. 112, 117–18 (1960) (quoting Williams v. Randolph

Hosp., Inc., 237 N.C. 387, 391 (1953)). Accordingly, this Court faithfully adheres to

the “doctrine of stare decisis which proclaims, in effect, that where a principle of law

has become settled by a series of decisions, it is binding on the courts and should be

followed in similar cases.” State v. Ballance, 229 N.C. 764, 767 (1949) (emphasis

omitted).

¶ 37 Admittedly “[t]he rule of stare decisis, though one tending to consistency and

uniformity of decision, is not inflexible.” Hertz v. Woodman, 218 U.S. 205, 212 (1910)

(emphasis omitted); see also Patterson v. McCormick, 177 N.C. 448, 456 (1919)

(quoting Hertz, 218 U.S. at 212). For instance, “the doctrine of stare decisis should

never be applied to perpetuate palpable error.” State v. Mobley, 240 N.C. 476, 487

(1954) (emphasis omitted). “Nor should stare decisis be applied where it conflicts with

a pertinent statutory provision to the contrary.” Id. (emphasis omitted). “[W]here a
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statute covering the subject matter has been overlooked, the doctrine of stare decisis

does not apply.” Id. (emphasis omitted). However, no such justification exists in this

case to depart from our longstanding precedent in Byrd.1

¶ 38 Plaintiffs contend that Byrd conflicts with a pertinent statutory provision and

thus should be overruled. Specifically, plaintiffs reference N.C.G.S. § 90-21.12(a),

which states, in relevant part:

[I]n any medical malpractice action as defined in [N.C.]G.S.
[§] 90-21.11(2)(a), the defendant health care provider shall
not be liable for the payment of damages unless the trier of
fact finds by the greater weight of the evidence that the
care of such health care provider was not in accordance
with the standards of practice among members of the same
health care profession with similar training and experience
situated in the same or similar communities under the
same or similar circumstances at the time of the alleged act
giving rise to the cause of action . . . .

N.C.G.S. § 90-21.12(a) (2021). “Where the language of a statute is clear, the courts

must give the statute its plain meaning . . . .” Frye Reg’l Med. Ctr., Inc. v. Hunt, 350

N.C. 39, 45 (1999). Looking to the plain language of N.C.G.S. § 90-21.12(a), nothing

in the statute indicates that it is providing an exhaustive list of every situation in

which a health care provider may be liable. Instead, N.C.G.S. § 90-21.12(a) functions

1While the majority argues that Harris v. Miller, 335 N.C. 379 (1994), weakened Byrd,
Harris cited Byrd once in an offhanded comment and then did not mention it again in the
opinion. Id. at 389. Harris never engaged in a serious examination of the merits or reasoning
of Byrd or further addressed it. Thus, Harris cannot be interpreted as affecting Byrd’s
precedential value.
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as a general liability limitation such that, regardless of other circumstances, a health

care provider cannot be liable unless certain criteria are met; namely, unless the

provider failed to act in accordance with the standard of care set forth in the statute.

However, nowhere does N.C.G.S. § 90-21.12(a) state that no other limitations might

apply to certain categories of health care providers or exempt them from liability in

specific situations. Thus, the holding in Byrd, which functions as a specific limitation

on the liability of nurses when treating or diagnosing patients, does not conflict with

N.C.G.S. § 90-21.12(a).

¶ 39 Furthermore, N.C.G.S. § 90-21.12(a) is a broad statute that provides a general

rule applicable to all health care providers. A more specific and thus more relevant

statute to the issue in this case is N.C.G.S. § 90-171.20(7), which defines the scope of

practice for nurses. Subsection 90-171.20(7) sets forth the “10 components” of “[t]he

‘practice of nursing by a registered nurse.’ ” N.C.G.S. § 90-171.20(7) (2021). The fifth

and sixth components are relevant to this case. The fifth component is “[c]ollaborating

with other health care providers in determining the appropriate health care for a

patient but, subject to the provisions of [N.C.]G.S. [§] 90-18.2,[2] not prescribing a

medical treatment regimen or making a medical diagnosis, except under supervision

2 Section 90-18.2 applies specifically to nurse practitioners but does not expand their
liability beyond the limits set forth in N.C.G.S. § 90-171.20(7). While N.C.G.S. § 90-18.2
provides that nurse practitioners may take certain actions, it explicitly notes that the
“supervising physician shall be responsible for authorizing” those actions. N.C.G.S. § 90-18.2
(2021).
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of a licensed physician.” N.C.G.S. § 90-171.20(7)(e). The sixth component is

“[i]mplementing the treatment and pharmaceutical regimen prescribed by any person

authorized by State law to prescribe the regimen.” N.C.G.S. § 90-171.20(7)(f).

¶ 40 Pursuant to the fifth and sixth components, a registered nurse’s practice does

not include prescribing or implementing a medical treatment or making a medical

diagnosis unless under the supervision of a physician. The language in N.C.G.S. § 90-

171.20(7)(e) and (f) thus incorporates the holding of Byrd, “that the physician is solely

responsible for the diagnosis and treatment of his patient,” Byrd, 202 N.C. at 341–

42, but a nurse may administer treatment when the “physician . . . stands by,

approving the treatment[,]” id. at 343. As a result, the General Statutes do not conflict

with Byrd but are indeed consistent with it.

¶ 41 Additionally, while plaintiffs cite the regulations governing CRNAs passed by

the North Carolina Board of Nursing, these regulations do not provide for a liability

different than Byrd. A regulation passed by an administrative body cannot create a

liability that is not authorized by statute. Rouse v. Forsyth Cnty. Dep’t of Soc. Servs.,

373 N.C. 400, 407 (2020) (“[A]n administrative agency has no power to promulgate

rules and regulations which alter or add to the law it was set up to administer or

which have the effect of substantive law.” (cleaned up)).

¶ 42 Further, the regulations’ language does not support plaintiffs’ argument.

Certainly, 21 N.C. Admin. Code 36.0226(b) recognizes that there will be collaboration,
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defined as “a process by which the [CRNA] works with one or more qualified health

care providers, each contributing his or her respective area of expertise,” and states

that an “individual [CRNA] shall be accountable for the outcome of his or her actions.”

21 N.C. Admin. Code 36.0226(b) (2020). Additionally, 21 N.C. Admin. Code 36.0226(c)

notes that one of the responsibilities of a CRNA includes “selecting, implementing,

and managing general anesthesia.” 21 N.C. Admin. Code 36.0226(c). However, these

clauses are limited by the scope of practice provision in the first subsection of 21 N.C.

Admin. Code 36.0226(a), which provides that

[o]nly a registered nurse who completes a program
accredited by the Council on Accreditation of Nurse
Anesthesia Educational Programs, is credentialed as a
[CRNA] by the Council on Certification of Nurse
Anesthetists, and who maintains recertification through
the Council on Recertification of Nurse Anesthetists, shall
perform nurse anesthesia activities in collaboration with a
physician, dentist, podiatrist, or other lawfully qualified
health care provider. A [CRNA] shall not prescribe a
medical treatment regimen or make a medical diagnosis
except under the supervision of a licensed physician.

21 N.C. Admin. Code 36.0226(a) (emphasis added). Once again, this regulation is

consistent with the holding of Byrd, prohibiting CRNAs from prescribing treatments

or making medical diagnoses, except under the supervision of a licensed physician.

¶ 43 Finally, plaintiffs argue that Byrd conflicts with the law of joint and several

liability because it does not permit both a doctor and nurse to be held liable for the

same injury. Joint and several liability, however, does not determine whether a
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defendant is liable for negligence. “To recover damages for actionable negligence, a

plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury

proximately caused by such breach.” Mozingo by Thomas v. Pitt Cnty. Mem’l Hosp.,

Inc., 331 N.C. 182, 187 (1992) (cleaned up). Joint and several liability simply

determines how a plaintiff recovers once he proves that two or more defendants meet

the definition of actionable negligence for the same injury. See Beanblossom v.

Thomas, 266 N.C. 181, 186–87 (1966). Under Byrd, however, plaintiffs cannot

establish that a nurse acts negligently in collaborating on a treatment plan with a

doctor. Therefore, the threshold requirement for reaching joint and several liability,

that two or more parties be negligent, was never met. Accordingly, Byrd does not

conflict with joint and several liability.

¶ 44 Still, plaintiffs contend that due to developments in medicine, Byrd is now

obsolete and should be overruled. However, adhering to the principles of stare decisis,

this Court should not disturb settled precedent that clearly defines the liability of

doctors and nurses when treating or diagnosing patients. Of course, the legislature,

which is not bound by stare decisis, could have at any time in the last ninety years

enacted a different rule of liability to account for changes in the medical profession.

As summarized previously, it did not. Neither the General Statutes nor the

regulations governing CRNAs conflict with Byrd’s holding. Indeed, even the majority

recognizes that under the current regulatory framework, nurses remain under the
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supervision of a licensed physician. Thus, even if a nurse’s collaboration is negligent,

the fact that the physician makes the ultimate care decision means that the nurse’s

negligence would not be the proximate cause of any injury. Therefore, plaintiffs’

arguments that Byrd should be overruled or limited to its facts are not persuasive.

¶ 45 Furthermore, as we recognized in Parkes v. Hermann, 376 N.C. 320 (2020),

creating a new form of liability involves making “a policy judgment [that] is better

suited for the legislative branch of government.” Id. at 326. In this case, departing

from Byrd by expanding nurse liability would require us to determine which nurses’

training and responsibilities are so advanced or specialized as to warrant liability

and which nurses, if any, remain not liable under Byrd. Neither the statutes nor

caselaw provide a clear guideline for making this determination. Further,

dramatically expanding liability requires the type of factor weighing and interest

balancing that are quintessential policy determinations for the legislature to make,

not the courts. See Rhyne v. K-Mart Corp., 358 N.C. 160, 169–70 (2004). For instance,

under this new standard, nurses may now need malpractice insurance. Regardless of

this Court’s view on whether expanding CRNA liability is a beneficial policy, “[t]he

legislative department is the judge, within reasonable limits, of what the public

welfare requires, and the wisdom of its enactments is not the concern of the courts.”

State v. Warren, 252 N.C. 690, 696 (1960) (emphasis added). “As to whether an act is

good or bad law, wise or unwise, is a question for the Legislature and not for the
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courts — it is a political question.” Id.

¶ 46 It appears that the majority’s newly created theory holds CRNAs liable if they

negligently collaborate with their supervising physician in choosing a treatment plan.

Left unanswered is what constitutes adequate collaboration or what happens when

the physician and CRNA disagree. The uncertainty created by the majority’s new

standard highlights why such policy decisions should be left to the legislature, not

this Court.

¶ 47 The legislature, as the policy making body of our government, has adopted and

codified the holdings in Byrd in its statutes and regulations rather than supplanting

them. Thus, the majority’s holding not only overturns this Court’s precedent without

sufficient cause but also ignores the plain language of the statutes and regulations.

In doing so, three Justices of this Court substitute their judgment of the public

welfare for that of the General Assembly and create instability in the medical

profession by striking down ninety years of precedent without providing a discernible

standard.

IV. Conclusion

¶ 48 Both the General Statutes and the regulations governing CRNAs are

consistent with the holdings in Byrd. Legal responsibility for treatment and

diagnoses lies with the physician alone, not with nurses. As a result, the trial court

correctly found that evidence of whether an alternative anesthetic treatment plan
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should have been used was not relevant to the liability of defendant CRNA. No

justification exists to depart from our prior holdings, especially when doing so

involves policymaking beyond the authority of this Court, creates more questions

than it answers, and is adopted by less than a majority of this Court. Accordingly, I

respectfully dissent.

Chief Justice NEWBY joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9348050. Public record. Not legal advice.