Boykin v. Kim

620 S.E.2d 707, 174 N.C. App. 278, 2005 N.C. App. LEXIS 2396
CourtCourt of Appeals of North Carolina
DecidedNovember 1, 2005
DocketNo. COA05-102.
StatusPublished
Cited by8 cases

This text of 620 S.E.2d 707 (Boykin v. Kim) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boykin v. Kim, 620 S.E.2d 707, 174 N.C. App. 278, 2005 N.C. App. LEXIS 2396 (N.C. Ct. App. 2005).

Opinion

McCULLOUGH, Judge.

Defendants Dr. Ipbi Kim and Associated Allergy Center (Dr. Kim) appeal from judgment entered 7 June 2004 and order entered 28 June 2004 by Judge Gary L. Locklear in Cumberland County Superior Court. We find no error.

FACTS

This is a wrongful death action based upon alleged medical malpractice brought by the administrator of the estate of Doris Boykin ("the estate") against Dr. Kim, Associated Allergy Center, Inc., Dr. Wilburn and Caromed Family Practice, P.A. On 8 June 2004 the estate took a voluntary dismissal with prejudice of their claims against defendants Dr. Wilburn and the Caromed Family Practice (Dr. Wilburn). The trial against the remaining defendants commenced on 3 May 2004. On 12 May 2004 the jury returned a verdict in plaintiff's favor.

Doris Boykin (decedent) began having pulmonary problems in 2001 and sought treatment from her general family practitioner, Dr. Clinton Wilburn. Dr. Wilburn initially diagnosed decedent with bronchitis, but when her condition did not improve she sought treatment from an Ear, Nose and Throat specialist, Dr. Kim. In the initial visit to see Dr. Kim, decedent complained of several symptoms including hearing loss, nasal problems and a sore throat with hoarseness. Dr. Kim informed decedent she only treated ear, nose, throat and allergy related symptoms and that decedent would need to see an internist for general medical problems. Dr. Kim's initial diagnosis was allergic rhinitis.

Both doctors initiated treatment of decedent with prescriptions of several medications, both prescribing a form of steroids. The first dose was prescribed by Dr. Wilburn in October 2001 and the second was prescribed by Dr. Kim in November 2001. Decedent continued seeking treatment throughout December. When her condition did not improve, decedent again visited both doctors on 9 January 2002, and was administered an injection of steroids, Celestone, by Dr. Kim and prescribed steroids, Medrol, by Dr. Wilburn.

*710There is no indication that the doctors were communicating or that either was aware that decedent was being prescribed steroids by both physicians. Decedent returned to see Dr. Wilburn in January and February 2002 still complaining of coughing. In February, Dr. Wilburn ordered a chest x-ray along with other radiology tests. The tests revealed that decedent's lungs had patch density which was consistent with infection.

On 18 March 2002, decedent returned to Dr. Kim's office where an examination of her throat revealed a large mass. At this time, Dr. Kim again administered steroid injections. Decedent received the steroid injections from Dr. Kim throughout April 2002 along with a prescription for the steroid Prednisone. In addition, decedent received a prescription for Prednisone, from Dr. Wilburn. Even though previous requests had been made for chest x-rays and blood work from Dr. Wilburn, Dr. Kim did not receive any of these requested reports until 19 April 2002 when she received the results of the tests performed in February by Dr. Wilburn, but still no blood work. This communication on 19 April 2002 was the only communication between the two treating physicians. Decedent again visited Dr. Kim on 2 May 2002 where upon review of the previous test results, Dr. Kim determined a possible lung infection. Steroid injections were again administered, however, the lung infection was not discussed even though Dr. Kim received no indication that it was being treated by Dr. Wilburn.

Decedent's last visit to Dr. Kim's office was on 15 May 2002 where she once more received the steroid treatment because it appeared to be working by decreasing the size of the mass. Dr. Wilburn then saw decedent for the last time on 16 May 2002 when he prescribed an oral steroid with a 20-day course. This was the last time decedent was seen by a physician. On 24 May 2002 decedent collapsed and died from exsanguination related to pulmonary tuberculosis. Both physicians had failed to detect the tuberculosis.

A verified complaint was filed by the estate of decedent against the two defendants, Dr. Wilburn and Dr. Kim, alleging negligence on the part of both defendants which was the proximate cause of the wrongful death of decedent. Subsequently, an answer and demand for jury trial was filed by Dr. Kim alleging that all treatment was in accordance with the proper standard of care and that her actions were not the proximate cause of decedent's death. An answer also was filed by Dr. Wilburn alleging conformance to the appropriate standard of care and denying that any conduct contributed to this defendant was the proximate cause of decedent's death. Before trial ensued, one defendant, Dr. Wilburn, entered into a release from all liability for the consideration of $1,500,000.00. A voluntary dismissal of all claims with prejudice against Dr. Wilburn was filed by the estate on 8 June 2004.

At trial, both sides presented expert testimony that tended to show both Dr. Wilburn and Dr. Kim failed to act in accordance with the proper standard of care in their communities. Before the trial began, the estate had designated several expert witnesses, some of whom were to testify in regard to Dr. Kim and others in regard to Dr. Wilburn. At trial, one of those expert witnesses, Dr. Steginsky, was called to testify. Dr. Kim on cross-examination wanted to elicit testimony that Dr. Wilburn, the former codefendant, had failed to comply with the proper standard of care. The court excluded this testimony upon objection by the estate. Dr. Kim then conducted voir dire of Dr. Steginsky in which the witness was asked whether he had an opinion to a reasonable degree of medical certainty as to whether Dr. Wilburn had breached the applicable standard of care:

I believe that [Dr. Wilburn] breached the standard of care by not recognizing that an upper lobe infiltrate was possibly consistent with tuberculosis and to do the further appropriate investigation or enlisting the support of a specialist to help reach a timely diagnosis. I further believe that his administration of steroids contributed to the death of [decedent].

I believe that he failed to communicate with Dr. Kim, and his failure to communicate with Dr. Kim led to the over-administration....

*711....

I believe that his failure to communicate with Dr. Kim also contributed to the co-administration of steroids.

Later in the trial, Dr. Kim was permitted to cross-examine another expert witness of the estate, Dr. Foster, as well as some of her own expert witnesses, Dr. Dave and Dr. Mansfield, who testified that Dr. Wilburn had breached the standard of care and that in fact his actions had fallen far below the standard of care.

At the conclusion of the trial, a charge conference was held in which Dr. Kim requested the court to instruct the jury on insulating negligence. The estate objected to this instruction on the ground that no issue of insulating negligence had been presented by evidence at trial. Dr. Kim acknowledged that insulating negligence had not been pled but stated that it had been raised by the evidence and therefore an amendment should be allowed because it was a substantive issue raised at trial. The court denied the request and excluded any instruction on insulating negligence. Also, at the charge conference Dr. Kim raised several objections to jury instructions regarding proximate cause and joint and several liability.

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Cite This Page — Counsel Stack

Bluebook (online)
620 S.E.2d 707, 174 N.C. App. 278, 2005 N.C. App. LEXIS 2396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boykin-v-kim-ncctapp-2005.