# Campbell v. Pitt County Memorial Hospital, Inc.

> Court of Appeals of North Carolina · February 17, 1987 · 84 N.C. App. 314

URL: https://www.frixlaw.com/law-library/cases/9588406

## Case

- **Full name:** JENNIFER LOVE CAMPBELL, by and Through Her Guardian Ad Litem, DUNCAN A. MCMILLAN, MARGARET O. CAMPBELL and JEFFREY L. CAMPBELL v. PITT COUNTY MEMORIAL HOSPITAL, INC.
- **Court:** Court of Appeals of North Carolina
- **Decided:** February 17, 1987
- **Citations:** 84 N.C. App. 314; 352 S.E.2d 902; 1987 N.C. App. LEXIS 2509
- **Precedential status:** Published
- **Opinion:** Dissent by Orr
- **Judges:** Wells, Becton, Orr
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Johnson v. Ruark Obstetrics & Gynecology Associates, P.A., 327 N.C. 283 (1990).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9588406

## Opinion text

Judge ORR
dissenting in part.
The majority expands the hospital’s duty in this case to require the hospital to make a reasonable effort to insure that the patient’s informed consent to delivery of a footling breech baby has been obtained prior to delivery. This duty applies, according to the majority, even though the patient was being treated by her own private physician. I find no support in our statutes or case law for such an extension of a hospital’s duty. Furthermore, this requirement would appear to constitute a major invasion of the physician/patient relationship and place an unworkable burden upon hospitals.
Bost v. Riley, 44 N.C. App. 638 , 262 S.E. 2d 391 , disc. rev. denied, 300 N.C. 194 , 269 S.E. 2d 621 (1980), relied upon by the majority, does not, in my opinion, mandate such an expansion. Bost states that “the hospital [has] the duty ... to make a reasonable effort to monitor and oversee the treatment which is prescribed and administered by physicians practicing at the facili *332 ty.” Bost, 44 N.C. App. at 647 , 262 S.E. 2d at 396 . A reasonable effort on the part of a hospital to insure that quality medical care is being provided to patients by private physicians with privileges at the hospital is an accepted hospital practice. Likewise, where hospital staff become aware of a patient’s lack of informed consent, or negligent treatment of a patient by a private physician, they have a duty to report it to the person designated by the hospital to take appropriate corrective action.
However, the duty to make a reasonable effort to monitor and oversee treatment does not extend to the direct intervention in the physician/patient relationship as it applies to informed consent.
In Bost our Court stated, “Since all of the above duties which have been required of hospitals in North Carolina are duties which flow directly from the hospital to the patient, we acknowledge that a breach of any such duty may correctly be termed corporate negligence. . . .” Bost, 44 N.C. App. at 647 , 262 S.E. 2d at 396 (emphasis added). The duties referred to included: (1) the duty to make a reasonable inspection of equipment used by the hospital in the treatment of patients and remedy any defects discoverable by such inspection, Payne v. Garvey, 264 N.C. 593 , 142 S.E. 2d 159 (1965); (2) the duty to provide equipment reasonably suited for the use intended, Starnes v. Hospital Authority, 28 N.C. App. 418, 221 S.E. 2d 733 (1976); (3) the duty not to obey instructions of a physician which are obviously negligent or dangerous, Byrd v. Hospital, 202 N.C. 337 , 162 S.E. 738 (1932); (4) a duty to promulgate adequate safety rules relating to the handling, storage and administering of medications, Habuda v. Hospital, 3 N.C. App. 11 , 164 S.E. 2d 17 (1968); and (5) the failure to adequately investigate the credentials of a physician selected to practice at the facility, Robinson v. Duszynski, 36 N.C. App. 103 , 243 S.E. 2d 148 (1978). Bost v. Riley, 44 N.C. App. at 647 , 262 S.E. 2d at 396 .
Noticeably missing from these enumerated hospital duties is the duty to insure that a patient’s informed consent has been obtained when that patient is being treated in the hospital by a private physician. As previously pointed out, the Court in Bost concluded that the duties imposed on hospitals flow directly from the hospital to the patient. In this case a duty to insure that a pa *333 tient’s informed consent has been obtained does not flow directly from the hospital to the patient. There is an intervening party — the private treating physician who is the person directly responsible for obtaining a patient’s informed consent. Bost , therefore, cannot be read as authority for imposing such a duty on a hospital where the patient has a private treating physician.
Furthermore, this Court has previously refused to extend the doctrine of informed consent in a similar situation. In Cox v. Haworth and Cox v. Haworth, 54 N.C. App. 328 , 283 S.E. 2d 392 (1981), this Court was asked “to impose a duty upon a hospital to properly inform and advise a patient of the nature of a medical procedure to be performed on him when the patient is admitted to the hospital for an operation under the care of his privately retained physician.” 54 N.C. App. at 331 , 283 S.E. 2d at 394-95 .
In Cox , plaintiff alleged that defendant hospital was liable under a corporate negligence theory. Plaintiff s private physician performed a myelogram on plaintiff at defendant hospital which resulted in a failure to remove all the dye injected into plaintiffs spinal canal. Plaintiff contended that the hospital had a duty to obtain his informed consent before the plaintiffs private physician performed the myelogram. A unanimous Court declined to impose such a duty on the hospital and relied on Bost .
We do not read Bost or the cases cited therein to impose a duty on the Hospital to obtain the informed consent of Mr. Cox under the facts of this case. The role of the Hospital in the entire procedure was to provide facilities and support personnel for Dr. Haworth. Any liability imputed to the Hospital would have to flow from acts or omissions which were a part of the function it performed in the myelogram.
This Court has held that if circumstances warrant, a physician has a duty to warn a patient of consequences of a medical procedure. Brigham v. Hicks, 44 N.C. App. 152 , 260 S.E. 2d 435 (1979). The physician in this case was Mr. Cox’s own privately retained physician. Any duty to inform Mr. Cox of the risks of the procedures would have been on the privately retained physician, not on the Hospital or its personnel. Consequently, we find that the Hospital had no duty to inform Mr. Cox of the risks and procedures to be used in the administration of the myelogram or to secure his in *334 formed consent when Mr. Cox hired his private physician to perform the myelogram.
Cox v. Haworth and Cox v. Haworth, 54 N.C. App. at 332-33 , 283 S.E. 2d at 395-96 .
Whether a party has a legal duty to another is not a question of fact to be decided by a jury based upon expert testimony or other evidence.
The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the Courts alone. (Elam v. College Park Hospital supra, 132 Cal. App. 3d at p. 339; Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal. App. 3d 814, 822 [ 131 Cal. Rptr. 854 ]; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 493, p. 2756.)
Clarke v. Hoek, 174 Cal. App. 3d 208, 213 , 219 Cal. Rptr. 845, 848-49 (1985).
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. (Citations omitted.) The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, ....
Pinnix v. Toomey, 242 N.C. 358, 362 , 87 S.E. 2d 893, 897 (1955).
In the case sub judice the trial court’s jury instruction as to the informed consent issue indicated that the jury had to determine whether plaintiff had proven that the hospital had a duty to insure the patient’s informed consent was obtained. This was clearly in error. In Clarke , plaintiff sought to interject the issue of foreseeability into that of duty, thus making a question of fact for the jury. There the Court stated;
[w]hile it is the province of the jury, as trier of fact, to determine whether an unreasonable risk of harm was foreseeable under the particular facts of a given case, the trial court must still decide as a matter of law whether there was a duty in the first place, even if that determination includes a con *335 sideration of foreseeability. (Stout v. City of Porterville (1983) 148 Cal. App. 3d 937, 941 [ 196 Cal. Rptr. 301 ]; Peter W. v. San Francisco Unified Sch. Dist., supra, 60 Cal. App. 3d at pp. 822-23.)
Clarke v. Hoek, 174 Cal. App. 3d at 214 , 219 Cal. Rptr. at 849 .
Likewise, in this case whatever issues of fact may have arisen, it is still a question of law whether there was a duty on the part of the hospital. As previously pointed out, I find no support in our law for extending a hospital’s duty as required by the majority.
Finally, to impose such a duty on hospitals would place hospital personnel in the untenable position of interjecting themselves into the physician/patient relationship and producing an unworkable requirement on hospital staffs. This could result in the disturbing duty of going behind a treating physician’s back in order to determine if the patient has been “informed” about the procedure in question and the inherent risks involved.
As has been observed by our [N.Y.] Court of Appeals, the relationship between the physician and his patient “is always one of great delicacy. And it is perhaps the most delicate matter, often with fluctuating indications, from time to time with the same patient, whether a physician should advise the patient (or his family), more or less, about a proposed procedure, the gruesome details, and the available alternatives. Such a decision is particularly one calling for the exercise of medical judgment. ... In the exercise of that discretion, involving as it does grave risks to the patient, a third party should not ordinarily meddle. . . .” Florentino v. Wenger, 19 N.Y. 2d 407, 415-16 .
Prooth v. Wallsh, 105 Misc. 2d 603, 603 , 432 N.Y.S. 2d 663, 665 (1980).
The logical extension of the new duty imposed on hospitals by the majority is potentially fraught with problems. As a practical matter, what hospital staffer should determine whether a patient’s informed consent to a procedure had been obtained? Is it the admission clerk at the front desk or a nurse assigned to the patient’s care? To what medical procedures or treatment does the duty apply? If a thoracic surgeon is prepared to perform by-pass *336 surgery, is it the hospital’s duty to insure that the risks and alternative treatments have been explained? If a privately retained physician determines that a hospitalized patient should take a certain medication with known side effects, is the hospital required to determine if the patient’s informed consent has been obtained before a nurse administers the medication? Should a hospital be required to insure that a privately retained obstetrician has informed a patient of the risks and alternatives involved in a footling breech delivery and that the patient has consented? The majority apparently says that a hospital has such a duty. I disagree and for the reasons set forth above, I dissent from that portion of the majority opinion imposing a duty on the hospital to insure that a patient’s informed consent has been obtained prior to treatment performed by a privately retained physician. As to the other parts of Judge Wells’ opinion, I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9588406. Public record. Not legal advice.