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No. COA95-83
FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
CARLOYN M. WRENN )
                         )
                       Plaintiff, )
)
             vs. )
)
JESSE RANDALL BYRD, M.D. )
)
                     Defendant. )
_______________________________________________)
From Durham County
92 CVS 0094 

 

PLAINTIFF-APPELLANT'S BRIEF

 

INDEX

TABLE OF CASES AND AUTHORITIES....................... ii

QUESTIONS PRESENTED.................................. 1

STATEMENT OF THE CASE................................ 2

STATEMENT OF THE FACTS............................... 3

        ARGUMENT:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE  DEFENDANT'S  MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM OF CAROLYN M. WRENN BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AND THE DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW............................................. 11

     

CONCLUSION........................................... 20

CERTIFICATE OF SERVICE............................... 22

APPENDIX:

DEPOSITION OF ANTHONY D. SCIARA, PH.D......... App. 1-10 

TRANSCRIPT OF PROCEEDINGS..................... App. 11-26

-ii-

TABLE OF CASES AND AUTHORITIES

Cases

Andersen v. Baccus
335 N.C. 526, 439 S.E.2d 136 (1994)...................... 19

Butz v. Holder
113 N.C. App. 156, 437 S.E.2d 672 (1993)................. 20

Caldwell v. Deese
288 N.C. 375, 218 S.E.2d 379 (1975).................... 11, 12

Gardner v. Gardner
334 N.C. 662, 435 S.E.2d 324 (1993).................... 18, 19

Johnson v. Phoenix Mutual Life Insurance Co.
300 N.C. 247, 266 S.E.2d 610 (1980)...................... 11

Johnson v. Ruark Obstetrics
327 N.C. 283, 395 S.E.2d 85 (1990)......12, 15, 16, 17, 18, 19

Sorrells v. M.Y.B. Hospitality
334 N.C. 669, 435 S.E.2d 320 (1993)...................... 19

Statutes and Other Authorities

N.C.G.S. ' 1-277 and ' 7A-27.............................. 11
N.C.R.Civ.P. 56 (1990).................................... 11
Webster's Ninth New Collegiate Dictionary
Merriam-Webster, Inc., 1991.............................. 15

 

No. COA95-83 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
CARLOYN M. WREN )
                         )
                       Plaintiff, )
)
             vs. )
)
JESSE RANDALL BYRD, M.D. )
)
                     Defendant. )
_______________________________________________)
From Durham County
92 CVS 0093

 

PLAINTIFF-APPELLANT'S BRIEF

QUESTIONS PRESENTED

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM OF CAROLYN M. WRENN BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AND THE DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?

 

STATEMENT OF THE CASE

          This is a medical malpractice action filed by plaintiffs George T. Wrenn and Carolyn M. Wrenn in the Superior Court of Durham County, North Carolina on January 8, 1992. (R p. 2) Plaintiff George T. Wrenn brought this action for personal injuries he suffered as a result of the negligence of the defendant Jesse Randall Byrd, M.D. Plaintiff Carolyn M. Wrenn is the wife of Mr. Wrenn and joined her claim for negligent infliction of emotional distress in this action with her husband.
This action was initially brought against defendants Coastal Emergency Services, Inc. ("Coastal"), Maria Parham Hospital, Inc. ("Hospital"), and Jesse Randall Byrd, M.D., a physician who saw Mr. Wrenn in the Hospital's emergency department on September 4, 1989 for diagnosis and treatment with presenting complaints of, inter alia, the sudden onset of fever, chills, nausea, headaches, and aches in the muscles of his lower extremities. (R p. 2) Defendants Coastal and the Hospital were duly served with process. The defendant Byrd was duly served with process on January 13, 1992 (R p. 13) and served his response to plaintiffs' Complaint on February 12, 1992, denying liability. (R p. 15) On April 5, 1994, plaintiffs filed an Amended Complaint bringing in an additional Coastal defendant. (R p. 48) The defendant Byrd served his answer and motion to plaintiffs' Amended Complaint on June 6, 1994, denying liability. (R p. 62)
          The case was peremptorily set for trial for the October 10, 1994 Civil Session of Superior Court in Durham County. On September 29, 1994, defendant Byrd served his motion for summary judgment. (R p. 68) Plaintiffs earlier gave notice of voluntary dismissal without prejudice of their claims against the Hospital, and on October 10, 1994, plaintiffs filed and served their notice of voluntary dismissal without prejudice of their claims against all Coastal defendants. (R p. 70) Also on October 10, 1994, plaintiffs filed and served a notice of voluntary dismissal without prejudice of their claims for punitive damages against the defendant Byrd. (R p. 72)
          In a pre-trial hearing on October 10, 1994, the Court granted the defendant's motion for summary judgment on the claim for negligent infliction of emotional distress of the plaintiff Carolyn Wrenn. (R p. 126) On October 11, 1994, plaintiff Carolyn Wrenn filed and served Notice of Appeal to the North Carolina Court of Appeals. (R p. 127) Also on October 11, 1994, plaintiff George Wrenn filed and served Notice of Voluntary Dismissal without Prejudice of all his claims against defendant Dr. Byrd. (R p. 129) The Order Settling the Record on Appeal was entered on January 13, 1995. (R p. 131) The Record on Appeal was filed and served on January 23, 1995. (R p. 137)

STATEMENT OF FACTS

          On September 4, 1989, George Wrenn and Carolyn Wrenn had been married for about twenty-four years. (Wrenn dep. p. 57 [All "Wrenn dep." references are to the deposition of Carolyn Wrenn]) They lived together in Henderson, North Carolina. On this date, at about one o'clock in the morning, Mr. Wrenn went to bed and started shaking all over. He said to his wife, "I'm about to freeze." (Wrenn dep. p. 5) Mrs. Wrenn took her husband's temperature and the reading was over 103E heading toward 104E. Mrs. Wrenn had never known her husband to have a temperature that high and, being a religious person, she prayed because she was scared. (Wrenn dep. p. 6) After applying cold compresses to her husband and watching him for a while, Mrs. Wrenn decided to take her husband to the emergency department at Maria Parham Hospital in Henderson because she "...knew at that point that something deathly was wrong." (Wrenn dep. p. 8) Mrs. Wrenn drove her husband to the hospital. Mr. Wrenn lay in the back seat of the vehicle. Upon arriving at the Hospital's emergency department at approximately 3:10 a.m. on September 4, 1989, Mrs. Wrenn went to the desk to register her husband. She had to help her husband into the emergency department. (Wrenn dep. p. 9)
          She went with her husband to the examination room and was present with him in the examination room when the defendant, Dr. Jesse Byrd, came in to see her husband. (Wrenn dep. pp. 11, 13) She left the examination room only for a few minutes to see her pastor when he arrived at the emergency department in response to a phone call from Mrs. Wrenn. (Wrenn dep. p. 13)
Because Mr. Wrenn's condition was so poor, Dr. Byrd obtained a history from Mrs. Wrenn. (Wrenn dep. p. 14) Mrs. Wrenn told Dr. Byrd she thought her husband possibly had food poisoning. (Wrenn dep. p. 8) Mrs. Wrenn also told personnel at the emergency department that her husband had been bitten by a tick about two weeks previously in the groin area and that the head of the tick had stayed in a couple of hours. Mrs. Wrenn told them about the tick because she knew there was a possibility her husband had Rocky Mountain Spotted Fever. (Wrenn dep. p. 38)
          Upon admission to the emergency department, Mr. Wrenn's presenting complaints included the sudden onset of fever, chills, nausea, headaches, and aches in the muscles of his lower extremities. (R pp. 53, 64) After obtaining a history, Dr. Byrd performed a physical examination of Mr. Wrenn in the presence of Mrs. Wrenn. Dr. Byrd documented in the medical record the following: Mr. Wrenn was a 42 year old white male with sudden onset of fever two hours previously; he had fever, chills, and nausea, and he had vomited several times; he had frontal headaches and aches in the muscles of the lower extremities; he had been bitten by a tick in the groin two weeks prior and the head of the tick may have stayed in a couple of hours; he was acutely ill, and was vomiting bile-stained material; and he had an old abdominal scar from status post-splenectomy. (R pp. 53, 54, 64) Mr. Wrenn's vital signs showed tachycardia and hypotension. (R p. 81) Mr. Wrenn passed out during one of the x-rays. (R p. 81)
          Dr. Byrd's diagnosis of Mr. Wrenn's condition was gastroenteritis-rule out food poisoning, and Mr. Wrenn was discharged from Maria Parham on September 4, 1989 at approximately 6:55 a.m. (R pp. 64, 65) At the time of Mr. Wrenn's discharge from Maria Parham, "he was more or less out of it." (Wrenn dep. p. 18) Mrs. Wrenn could tell that her husband "...was sick, really sick." (Wrenn dep. p. 20) Dr. Byrd told Mrs. Wrenn what to do and gave her instructions to give her husband Phenergan, Tylenol, to force fluids, and that he should rest. (Wrenn dep. p. 17)
          Mrs. Wrenn took her husband home from the Hospital at approximately 7:00 a.m. During the day of September 4, 1989, Mrs. Wrenn stayed home with her husband and took care of him. (Wrenn dep. p. 63) During the evening, at around 9:00 p.m. or 9:30 p.m., Mrs. Wrenn noticed spots on her husband's hips while she was giving him a suppository. (Wrenn dep. p. 25) The heat bumps on his hips had turned black. (Wrenn dep. p. 29) There were also splotched places on his face that were turning dark. (Wrenn dep. p. 31) Mrs. Wrenn became alarmed by the splotches. (Wrenn dep. p. 32) She then returned her husband by automobile back to the emergency department of Maria Parham Hospital, where they arrived at approximately 10:02 p.m. on September 4, 1989. (Wrenn dep. pp. 32, 33; R p. 65) On the return trip to the Hospital, Mr. Wrenn was laid out in the back seat again with a pillow. (Wrenn dep. p. 33) Mrs. Wrenn had to help him get into the car. She pulled her car in front of the entrance where the emergency ramp is, went inside and told the personnel she needed a wheelchair. Hospital personnel came out, helped put Mr. Wrenn in the wheelchair, and took him inside. (Wrenn dep. p. 33)
          Upon arrival at the emergency department of Maria Parham on his second visit on September 4, 1989, the medical records noted that Mr. Wrenn had signs and symptoms of sepsis and rule out Rocky Mountain Spotted Fever. (R p. 81) Mrs. Wrenn called her pastor and told him that her husband was back at the hospital in emergency. The pastor told Mrs. Wrenn he would be over in a short while and he came over. (Wrenn dep. p. 34) On the second visit to the emergency department, there were "quite a few" personnel working with Mr. Wrenn. (Wrenn dep. p. 35) Mrs. Wrenn told the physician on duty in the emergency department, Dr. Murphy, that if they weren't "...sure what was wrong with him and didn't know what to do for him, to please send him to Duke." (Wrenn dep. p. 36) She was concerned that the nurses could not get a blood pressure on her husband and she felt that if they did not know what to do for him at Maria Parham that he should be somewhere else and that maybe Duke would know what to do for him. (Wrenn dep. p. 36)
          During Mr. Wrenn's second admission to the emergency department of Maria Parham on September 4, 1989, he was resuscitated and transported by Life Flight to Duke University Medical Center. (R p. 65) Mr. Wrenn arrived at Duke Medical Center at approximately 2:40 a.m. on September 5, 1989. (R p. 65) Mrs. Wrenn was driven to Duke by her pastor and his wife. (Wrenn dep. p. 39) At Duke, doctors told Mrs. Wrenn that her husband was a very sick man and that it would be touch and go for the next twenty-four hours. (Wrenn dep. p. 40) While he was at Duke, Mr. Wrenn had multiple medical problems and multiple surgical procedures, including amputations of most of both of his feet, amputation of a finger, skin grafts, and treatment in the medical intensive care unit. (R p. 82)
          Plaintiff presented the affidavit of Neal Little, M.D., who is a physician licensed to practice medicine in the State of Michigan who was so licensed at all times relevant to this action. Dr. Little is also Board certified in emergency medicine and was Board certified during 1989. (R p. 80) In Dr. Little's opinion, "...Dr. Byrd deviated from the applicable standard of care by not entertaining the diagnoses of Rocky Mountain Spotted Fever and early sepsis caused by bacterial illness strongly enough to treat these conditions with intravenous antibiotics and fluids and other, appropriate adjunctive therapy." (R pp. 82-83) In addition, in Dr. Little's opinion, Dr. Byrd's deviations from the applicable standard of care were a cause of the necessity for the amputations and other conditions and complications suffered by Mr. Wrenn after he was discharged from the Maria Parham emergency department on September 4, 1989. (R p. 83) Dr. Little noted in his affidavit that Mr. Wrenn was immunocompromised due to his prior splenectomy. Further, Dr. Little explained Mr. Wrenn's condition as follows:

It is a well-known medical fact that patients who have undergone splenectomy are more susceptible to an overwhelming bacterial infection. This condition is known in the medical literature as overwhelming postsplenectomy infection. Mr. Wrenn also had a history of exposure to an infectious source, a tick bite, and he manifested signs and symptoms of an infectious disease process, including sudden onset of fever, chills, headaches, pain in the lwer extremities, nausea, and vomiting of bile-stained material, an elevated pulse rate (tachycardia), and he was hypotensive (he had an abnormally low blood pressure).

(R p. 82)

 

          Mr. Wrenn was a patient at Duke undergoing the extensive treatments referred to above from September 5, 1989 until one day short of three weeks, and again from October 10, 1989 until the day before Thanksgiving. (Wrenn dep. p. 42) During the time her husband was a patient at Duke, Mrs. Wrenn would work during the day in Henderson and then drive to Durham to be with her husband at Duke. She would spend the night at Duke and then drive back to her job in Henderson during the morning. She would cry on these trips and tried her best to cope and not to cry in front of her husband. Her husband would break down crying from time to time. (Wrenn dep. pp. 70-71) While her husband was at Duke, Mrs. Wrenn "lived at [the] hospital during much of [the] time he was there. [She] slept in ICU [Intensive Care Unit] waiting room" (Sciara dep., Exhibit 5) Mrs. Wrenn has received counseling "...only from the good Lord, no human down here." (R p. 54) During her husband's recuperation from the surgical procedures following his discharge from Duke, Mrs. Wrenn bathed her husband, handled his bed pan, put him in a wheelchair from time to time, and performed other tasks necessary for his care. (Wrenn dep. p. 66)
          Mrs. Wrenn was seen by Dr. Anthony D. Sciara, a psychologist practicing in Asheville, North Carolina, on July 31, 1992, almost three years after her husband's two visits to the emergency department of Maria Parham Hospital. (App. p. 1) Mrs. Wrenn cried during her interview with Dr. Sciara. (App. p. 9) During his discovery deposition, Dr. Sciara testified that Mrs. Wrenn "...has a lot of the symptoms of depression...It's not a severe depression, but it's moderate." (App. p. 9) This testimony was in relation to Dr. Sciara's opinions concerning Mrs. Wrenn's reaction to the changes that had happened in their life due to her husband's injuries. (App. p. 9) Although the Wrenns are very religious people who have relied on their pastor and prayer for psychological and emotional support, neither Mr. or Mrs. Wrenn denied to Dr. Sciara that they could use psychological counseling "...in terms of coping during the difficult times." (App. p. 10) The times when they could use psychological counseling not only dealt with past difficult times but also times when Mr. Wrenn is having skin breakdowns or when things were very difficult for them. (App. p. 10) Mr. Wrenn continues to have skin breakdowns and problems with ambulation, chronic pain, and trying to adjust to his disability. (App. pp. 6, 7) Also, Mr. Wrenn continues to have swelling and pain chronically in the afternoons and everyday he must lie down on a couch with his feet raised for several hours at a time. (App. p. 8) Mrs. Wrenn testified that if it had not been for the Lord, she could not have withstood the emotional distress that she went through as a result of her husband's injuries (Wrenn dep. p. 55), and that her experience has been a "nightmare." (Wrenn dep. p. 15)
          As a result of Mr. Wrenn's amputations, he suffers from reactive depression. (App. pp. 4, 5) He can no longer do many of the things he did before his injuries such as operate his business of setting up and servicing mobile homes, and enjoy hobbies such as bowling. His ability to enjoy other activities such as fishing and gardening is limited due to his injuries. (App. pp. 2 -6) The many changes in her husband's life depress Mrs. Wrenn (App. pp. 9, 10)

ARGUMENT

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM OF CAROLYN M. WRENN BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AND THE DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

 

           ASSIGNMENT OF ERROR NO. 1

          (R p. 133)

          Pursuant to N.C.G.S. ' 1-277 and ' 7A-27, plaintiff Carolyn M. Wrenn appeals as of right from the Order of the trial court granting summary judgment in favor of the defendant on her negligent infliction of emotional distress claim. The plaintiff's claim has been fully determined and dismissed and plaintiff therefore has the right to an immediate appeal. N.C.G.S. ' 1-277 (1983); ' 7A-27 (1989). There are no related claims pending in the trial court at this time. (R pp. 70, 72, 129)

          Summary judgment is appropriate only if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. N.C.R.Civ.P. 56 (1990). The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of material fact. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). Further, it must also be established that the movant is entitled to judgment as a matter of law. Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980). The movant is held to a strict standard and all inferences of fact must be drawn against the movant and in favor of the party opposing the motion. Caldwell v. Deese, supra.
          There are genuine issues of material facts in this case which should be determined by a jury. Therefore, this Court should reverse the trial court's ruling granting defendant's motion for summary judgment, and allow Mrs. Wrenn to have her claim determined at trial. In a claim for negligent infliction of emotional distress, the plaintiff must allege and prove that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress, and (3) the conduct did in fact cause plaintiff severe emotional distress. Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990).
          As to the first requirement, plaintiff presented expert testimony that Mrs. Wrenn's husband, George T. Wrenn, suffered amputations of most of both of his feet and other injuries because of the negligence of the defendant Dr. Byrd. (R p. 80) As to the second requirement, plaintiff's forecast of evidence showed that it was reasonably foreseeable that Dr. Byrd's conduct would cause Mrs. Wrenn severe emotional distress. Some of the factors to be considered in determining the reasonable foreseeability of a person suffering severe emotional distress as a result of concern for another include, but are not limited to, (1) the plaintiff's proximity to the negligent act causing injury to the other person, (2) the relationship between the plaintiff and the other person, and (3) whether the plaintiff personally observed the negligent act. Id., 395 S.E.2d at 98.
          As noted above, Mrs. Wrenn's husband was injured as a direct and proximate result of the negligence of the defendant Dr. Byrd. (R. p. 80) At the time the negligence occurred, the Wrenns were happily married and had been married for approximately twenty-four years. (Wrenn dep. pp. 3, 57) Mrs. Wrenn was with her husband in the examination room when Dr. Byrd engaged in negligent conduct in his treatment of Mr. Wrenn. (Wrenn dep. pp. 11, 13) Dr. Byrd personally gave Mrs. Wrenn discharge instructions when he sent Mr. Wrenn home from the emergency department with the wrong diagnosis. (Wrenn dep. p. 65) Mrs. Wrenn personally observed Dr. Byrd's negligent treatment of her husband and the catastrophic injuries her husband suffered because of the negligence.
          As to the third requirement, the evidence was overwhelming that Dr. Byrd's negligent conduct caused Mrs. Wrenn severe emotional distress. During her husband's first admission to the emergency department, Mrs. Wrenn feared he may be suffering from the life-threatening illness of Rocky Mountain Spotted Fever. (Wrenn dep. p. 38) She knew something was "deathly wrong" (Wrenn dep. p. 8), her husband was "out of it" (Wrenn dep. p. 18) and she could tell he "was sick, really sick." (Wrenn dep. p. 20) She called her pastor from the hospital sometime after 3:00 a.m. for support. (Wrenn dep. pp. 29-32) Later that day, approximately fourteen to fourteen and one-half hours following Mr. Wrenn's discharge from the emergency department, Mrs. Wrenn became alarmed by the appearance of black spots on her husband. She took him back to the hospital where her husband was diagnosed with sepsis, rule out Rocky Mountain Spotted Fever. (R p. 81) She asked that her husband be sent to Duke and he was flown there in the early morning hours in critical condition. (R p. 82) Mrs. Wrenn's pastor and his wife drove Mrs. Wrenn to Duke. (Wrenn dep. p. 39) Her husband was in a life-threatening condition in Duke's medical intensive care unit fighting for his life. (Wrenn dep. p. 40) Mrs. Wrenn literally lived at Duke Hospital during much of this time, sleeping in the waiting room of the intensive care unit and driving to Henderson to work every morning while crying because she did not want to break down in front of her husband. (Wrenn dep. pp. 70-71; Sciara dep., Exhibit 5) She was with her husband when he underwent amputations of most of both of his feet and one of his fingers and she watched and experienced with him his extreme physical and emotional suffering.
          After Mr. Wrenn's discharge from Duke on the day before Thanksgiving, 1989, Mrs. Wrenn took care of her husband, which included bathing him, handling his bed pan, and helping him in and out of his wheelchair. (Wrenn dep. p. 66) She described her ordeal as a "nightmare," (Wrenn dep. p. 15) and testified that she could not have withstood the emotional distress without the help of the Lord. (Wrenn dep. p. 55)
          In addition to the severe emotional distress Mrs. Wrenn suffered during the time of the events at Maria Parham and Duke, and during her husband's recovery at home from the acute phase of his condition, Mrs. Wrenn still suffers from depression. She was seen on July 31, 1992 by Anthony D. Sciara, Ph.D., a psychologist. (App. p. 1) Dr. Sciara testified at his deposition that Mrs. Wrenn cried during his interview with her. (App. p. 9) Dr. Sciara stated that although Mrs. Wrenn was not severely depressed at the time of the interview, which was almost three years after the date of Dr. Byrd's negligence and her husband's injuries, she nevertheless was suffering from moderate depression. (App. p. 9) Accordingly, Mrs. Wrenn suffers from chronic depression, which is an example of "severe emotional distress" identified in Johnson v. Ruark Obstetrics, supra, 395 S.E.2d at 97:
       

In this context, the term "severe emotional distress"  means any emotional or mental disorder, such as, for example, neurosis,sychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so. (emphasis added)

"Chronic" means "marked by long duration or frequent recurrences." Webster's Ninth New Collegiate Dictionary, Merriam-Webster, Inc., 1991. Depression that has continued almost three years beyond the occurrence of the negligent conduct and injuries and which is more difficult for Mrs. Wrenn to cope with during the continuing skin breakdowns and other difficulties her husband suffers from, is chronic depression. That is to say, Mrs. Wrenn's depression is ongoing and recurrent. Dr. Sciara was of the opinion that Mrs. Wrenn and her husband were in need of psychological counseling and support during difficult times, which include the continuing times when Mr. Wrenn suffers skin breakdowns at the amputation sites, his chronic pain, his difficulty with ambulation, and his difficulty adjusting to his disability. (App. pp. 6, 7, 10)
          At the hearing on defendant's motion for summary judgment, the trial court was satisfied that Mrs. Wrenn had produced a sufficient forecast of evidence to meet the requirements of showing Dr. Byrd's negligent conduct and that it was reasonably foreseeable that Dr. Byrd's negligent conduct would cause the plaintiff severe emotional distress. (App. pp. 17, 19, & 22) However, the trial court ruled that Mrs. Wrenn failed to forecast evidence that she had suffered severe emotional distress and the Court allowed defendant's motion for summary judgment on that basis. (App. p. 26) In so ruling, the trial court committed reversible error in these respects: (1) by overlooking Mrs. Wrenn's evidence that she suffered severe emotional distress during the time her husband's critical condition and his injuries were manifested and during the acute phase of his illness and injuries, including his amputations; (2) by requiring Mrs. Wrenn to produce expert testimony that she was suffering from severe depression at the time of her interview with a psychologist, which occurred almost three years after Dr. Byrd's negligence and the manifestation of her husband's injuries, as opposed to chronic depression (App. pp. 11-26); and (3) by failing to follow the law of Ruark that chronic depression is a form of severe emotional distress. Ruark, supra, 395 S.E.2d at 97.
          As a result of the foregoing errors, the trial court ruled as a matter of law that Mrs. Wrenn had not forecast sufficient evidence of severe emotional distress, even though the evidence, including Mrs. Wrenn's testimony and the testimony of a qualified psychologist, as well as all of the reasonable inferences to be drawn from that testimony, and when taken in the light most favorable to the plaintiff, demonstrated that Mrs. Wrenn had indeed suffered severe emotional distress. It is certainly reasonable to conclude that she suffered and continues to suffer severe emotional distress upon consideration of the evidence and the circumstances of her husband's treatment and catastrophic injuries.
          Ruark, supra, is the controlling authority for this case. Our Supreme Court ruled in Ruark that in a medical malpractice action, a citizen can have a viable claim for negligent infliction of emotional distress due to the observation of injury caused to a loved one following negligent acts of a defendant health care provider. In Ruark, the plaintiffs were expectant parents who alleged that a doctor was negligent in his prenatal care of the mother and child, and as a result, the baby had to be delivered after it had died. The negligence occurred prior to the injury and it was not the observation of the negligent acts that caused severe emotional distress to the plaintiffs, but it was the experience of the labor and delivery of their stillborn child that caused the plaintiffs severe emotional distress. Ruark, supra, 395 S.E.2d at 87.
          In the instant case, as in Ruark, the negligence occurred prior to the injury, both of which were personally observed by the plaintiff, Carolyn M. Wrenn. Mrs. Wrenn suffered with her husband through the amputations of most of both of his feet and one of his fingers. She was with him and watched his suffering. In summary, Mrs. Wrenn was present when the negligence occurred, she personally observed the negligence, she was married to Mr. Wrenn at the time of the acts, and she was present and observed his extreme, disfiguring injuries and the painful, extensive treatments required to save her husband's life.
          In addition to the above factors which satisfy the foreseeability requirement articulated in , plaintiff's evidence also showed that Dr. Byrd knew Mrs. Wrenn was subject to severe emotional distress as a result of his negligence and its consequences. See Gardner v. Gardner, 334 N.C. 662, 435 S.E.2d 324 (1993). Although our Supreme Court has not imposed this latter factor as a requirement for the tort of negligent infliction of emotional distress in a medical malpractice case where the plaintiff is present at the time of the negligence and injury, Ruark, supra, the circumstances of this case show that Dr. Byrd knew Mrs. Wrenn would suffer severe emotional distress if her husband were injured as a consequence of negligence. It is reasonable that Dr. Byrd could foresee that if he allowed George Wrenn to leave the hospital with the possibility he was suffering from an untreated, life-threatening condition, that Mr. Wrenn could suffer catastrophic injury or death in the presence of his wife causing her severe emotional distress. Dr. Byrd knew Mrs. Wrenn was Mr. Wrenn's wife. He obtained Mr. Wrenn's history from her (Wrenn dep. pp. 8, 14, 16) and gave Mrs. Wrenn discharge instructions. (Wrenn dep. p. 65) Also, Dr. Byrd knew she was very worried and emotionally distressed because of her husband's condition. She stayed beside her husband in the examination room the entire time, except to go meet her pastor when he arrived at the emergency room in response to her call. (Wrenn dep. pp. 29-32) Dr. Byrd knew that Mrs. Wrenn was watching her husband suffer and that she was distressed over his condition. Dr. Byrd knew Mrs. Wrenn was concerned that her husband could be suffering from Rocky Mountain Spotted Fever, an often fatal condition. (Wrenn dep. p. 38) Because of the nature of the relationship between doctors and their patients, doctors are witness daily to the severe emotional distress caused by the sudden loss of a loved one or the catastrophic injury of a loved one and are all too aware of the consequences of their negligent conduct.
          Mrs. Wrenn's severe emotional distress was foreseeable to Dr. Byrd because she was present at all times, she manifested her concern and susceptibility to emotional distress in Dr. Byrd's presence, and it was apparent to Dr. Byrd that the severe nature of Mr. Wrenn's condition, especially if it were not treated properly, was likely to cause Mrs. Wrenn severe emotional distress as opposed to "mere fright or temporary anxiety." Ruark, 395 S.E.2d at 97. Indeed, the evidence showed, as common sense would suggest under these catastrophic circumstances, that Mrs. Wrenn suffered severe emotional distress and continues to suffer chronic depression as a proximate and foreseeable result of defendant's negligence.
          Not only is this case in accord with Ruark, but it is consistent with Andersen v. Baccus, 335 N.C. 526, 439 S.E.2d 136 (1994), Sorrells v. M.Y.B. Hospitality, 334 N.C. 669, 435 S.E.2d 320 (1993), Gardner v. Gardner, 334 N.C. 662, 435 S.E.2d 324 (1993), and Butz v. Holder, 113 N.C. App. 156, 437 S.E.2d 672 (1993), because of Mrs. Wrenn's presence in the examination room with her husband and Dr. Byrd, and at the time Dr. Byrd discharged Mr. Wrenn, the concern she demonstrated to Dr. Byrd that her husband may have a life-threatening illness, the call to her pastor to come to the emergency department, the evidence of severe emotional distress she suffered during her husband's critical illness and injuries, and expert testimony of her chronic depression and difficulty coping with her husband's continuing skin breakdowns at his amputation sites and other continuing medical problems almost three years after the events giving rise to her husband's injuries. In addition, plaintiff specifically pleaded the elements of the tort and also pleaded that "...defendants knew...that the plaintiff Carolyn M. Wrenn was susceptible to suffering severe mental and emotional distress..." (R p. 59)
          Plaintiff's forecast of evidence created genuine issues of material facts and the trial court committed reversible error in allowing defendants the drastic remedy of summary judgment. Mrs. Wrenn's claim should be determined by a jury.

CONCLUSION

          Based on the foregoing reasoning and authorities, plaintiff-appellant respectfully requests this Court to reverse the Order of the trial court granting partial summary judgment to the defendant on the plaintiff Carolyn M. Wrenn's claim for negligent infliction of emotional distress, and to remand this action to the Superior Court of Durham County for trial.

                             Respectfully submitted this ____ day of _________, 1995.

                                                          BENTLEY & KILZER, P.A.

 

                             _________________________________________ 
                                                                     Charles A. Bentley, Jr.
                             _________________________________________ 
                                                                     Susan B. Kilzer
                                                                     Attorneys for Plaintiff-Appellant
                                                                     Post Office Box 52089
                                                                     Durham, North Carolina 27717-2089
                                                                     (919) 489-1330

 

 

CERTIFICATE OF SERVICE

            I do hereby certify that on this ___ day of _______________, 1995, I served a copy of PLAINTIFF-APPELLANT'S BRIEF on counsel for the defendant by depositing a copy of same in the United States Post Office, with first class postage prepaid and properly addressed as follows:
                                                         Samuel G. Thompson
                                                         John D. Madden
                                                         James Y. Kerr
Smith, Anderson, Blount, Dorsett,
                                                         Mitchell & Jernigan 
Attorneys for Jesse Randall Byrd, M.D.
                                                         Post Office Box 2611 
                                                         Raleigh, North Carolina 27602-2611

 

                         ___________________________________ 
                                                                 Charles A. Bentley, Jr./ Susan B. Kilzer

 

 

APPENDIX

Contents                                                                      Page

DEPOSITION OF ANTHONY D. SCIARA, PH.D.............. 1-10 
TRANSCRIPT OF PROCEEDINGS............................ 11-26

 


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