Justice MEYER dissenting.

Justice LAKE did not participate in the consideration or decision of this case.

MITCHELL, Justice.

The issue before this Court is whether the Court of Appeals erred in reversing the trial court's grant of summary judgment in favor of the defendant Dr. Richard John Kazior. To resolve this issue, we must decide whether there was a forecast of evidence tending to show that the defendant, in his capacity as an on-call supervising physician, owed a duty of reasonable care to the plaintiffs. For reasons differing from those stated in the opinion of the Court of Appeals, we conclude that the forecast of evidence before the trial court tended to show that the defendant had such a duty, and we affirm the holding of the Court of Appeals.

As summary judgment was entered for the defendant by the trial court, the facts set forth are taken from the forecast of evidence found in allegations in the complaint, the depositions, the stipulations of the defendant Dr. Richard John Kazior and others, and the affidavits in the record on appeal. We express no opinion, of course, as to what the plaintiffs will be able to prove at trial.

In this action, the plaintiff Alton Mozingo, Jr., by his guardian ad litem, seeks money damages from the defendant Dr. Richard John Kazior for injuries allegedly caused by Dr. Kazior's negligent supervision of resident physicians at Pitt County Memorial Hospital ("Hospital"). Mozingo, Jr., alleges that the resident physicians who delivered him at his birth did so negligently, causing him severe injuries. The plaintiff Alton Mozingo, the father of the injured child plaintiff, seeks money damages for the loss of services of his son.

The forecast of evidence before the trial court tended to show that during December 1984 Dr. Kazior was an employee of Eastern OB/GYN Associates ("Eastern"). Eastern had entered into an agreement with the East Carolina University Medical School to provide on-call supervision of the interns and residents in the obstetrics residency program at the Hospital. On the afternoon of 5 December 1984, Sandra Dee Mozingo was admitted to the Hospital for the delivery of her second child, Alton Mozingo, Jr., one of the two plaintiffs in the present case. Two residents in the post-graduate training program in obstetrics treated Sandra Dee Mozingo who was not under the care of a private physician.

At 5 p.m. on 5 December 1984, the defendant Dr. Kazior began his assignment to provide on-call services for the obstetrics residents at the Hospital who were caring for patients. Dr. Kazior remained at his home available to take telephone calls from the residents. Shortly before 9:45 p.m., Dr. Kazior received a telephone call from Dr. Melinda Warren, a second-year resident at the Hospital, informing him that she had encountered a problem with the delivery of Mozingo, Jr. The baby was suffering shoulder dystocia, a condition in which a baby's shoulder becomes wedged in the mother's pelvic cavity during delivery. Dr. Kazior stated that he would be there immediately and left his home for the Hospital located approximately two miles away. When Dr. Kazior arrived at the hospital, the delivery of Mozingo, Jr., had been completed.

On 3 December 1987, the plaintiffs filed an amended complaint alleging inter alia negligent supervision of the obstetrics residents by Dr. Kazior. The plaintiffs alleged that Alton Mozingo, Jr., suffered severe and permanent injuries due to the shoulder dystocia and that Dr. Kazior's negligent supervision of the residents actually performing the delivery proximately caused these injuries. The plaintiffs alleged that Dr. Kazior "failed to make a reasonable effort to monitor and oversee the treatment administered by the defendant, Melinda Warren, and the agents of the Defendant, Hospital." Dr. Kazior filed an answer denying all allegations of negligence on his part.

The defendant Dr. Kazior filed a motion for summary judgment on 6 October 1989 supported by four affidavits, the pleadings, and other material obtained during discovery. Three of the affidavits were given by the heads of the Departments of Obstetrics and Gynecology of other teaching hospitals in North Carolina. The affidavits from the Chairmen of the Departments of Obstetrics and Gynecology of the Bowman-Gray School of Medicine of Wake Forest University, the University of North Carolina School of Medicine, and the Duke University School of Medicine stated that the protocol of their respective medical schools "permitted the Attending On Call physicians to afford coverage during the hours of their assignment by either being present in the hospital or, unless a problem is specifically anticipated, by being present at their residence or other specified place and immediately available to a telephone so as to come immediately to the hospital upon request."

The plaintiffs responded with the sworn affidavit of Dr. William Dillon and the transcript of the deposition of Dr. Dillon, a board-certified obstetrician and an expert witness for the plaintiffs, who stated that an on-call supervising physician should call in periodically during his coverage shift. Dr. Dillon in his affidavit stated that Dr. Kazior had a "responsibility, when he came on call, to find out what obstetrical patients had been admitted to the hospital, their condition and to formulate a plan of management." (Emphasis added). Dr. Dillon in his deposition also stated, "I think in at least a minimum sense a supervising physician needs to make contact sometimes, preferably at the beginning, and maybe a few times in between, as to what is occurring on his service." Dr. Dillon further stated, "I think that what we are talking about is what is proper supervision and what is not proper supervision. . . . I think that there is a certain standard when one is supervising residents that must be met. If a private physician is going to supervise residents, he must meet those standards." Further, according to Dr. Dillon, Sandra Dee Mozingo "was a known gestational diabetic with extreme obesity and no established estimated fetal weight notwithstanding sonography. As such there was a known significant risk of a macrosomic baby [an extremely large baby]. Therefore, there were very significant known risk factors for this pregnancy which included a known significant risk factor of shoulder dystocia."

The trial court granted summary judgment for the defendant Dr. Kazior on 29 December 1989, and the plaintiffs filed a notice of appeal. Subsequently, the trial court rescinded summary judgment and received into evidence Dr. Kazior's stipulation dated 28 March 1988. Thereafter, the trial court again granted summary judgment in favor of Dr. Kazior on 27 March 1990. The plaintiffs again filed a notice of appeal with the Court of Appeals.

A divided panel of the Court of Appeals reversed the trial court's entry of summary judgment in favor of the defendant Dr. Kazior, concluding that he owed the plaintiffs a duty of care arising out of a contract between Eastern and East Carolina University Medical School. The Court of Appeals concluded, however, that the defendant owed no duty of reasonable care to the plaintiffs based on a doctor-patient relationship because no such relationship existed. For different reasons, we affirm the holding of the Court of Appeals reversing the trial court's entry of summary judgment for the defendant Dr. Kazior.

Dr. Kazior contends that the Court of Appeals erred in reversing the trial court's grant of summary judgment in his favor.

The North Carolina Rules of Civil Procedure provide that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R. Civ. P. 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial. Dickens, 302 N.C. 437, 276 S.E.2d 325. All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

Collingwood v. General Electric Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Summary judgment is a drastic measure and should be used with caution. Williams v. Carolina Power and Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979).

The gravamen of the plaintiffs' claim is that the defendant Dr. Kazior negligently supervised the obstetrics residents who cared for Mozingo, Jr., and his mother during his birth and that this negligent supervision proximately caused the plaintiffs' injuries. "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." Waltz v. Wake County Bd. of Education, 104 N.C. App. 302, 304-05, 409 S.E.2d 106, 107 (1991) (quoting Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 217, 152 S.E.2d 336, 341 (1967)), disc. rev. denied, 330 N.C. 618, 412 S.E.2d 96 (1992).

Dr. Kazior argues that the parties' forecasts of evidence in the trial court established as a matter of law that he owed no duty of care to the plaintiffs because no doctor-patient relationship existed. Uncontroverted evidence before the trial court tended to show that Dr. Kazior's first contact with Alton Mozingo, Jr., and his parents occurred when Dr. Kazior arrived at the Hospital after the delivery of Mozingo, Jr., on 5 December 1984, in response to the telephone call from Dr. Warren. However, the defendant Dr. Kazior stipulated that he was responsible for supervision of the obstetrics residents at the Hospital on the night of 5 December. In a stipulation dated 28 March 1988, the defendant stated he had "responsibility for supervision of the OB/GYN residents and interns at the time of the birth of Alton Ray Mozingo, Jr." "Stipulations are viewed favorably by the courts because their usage tends to simplify, shorten, or settle litigation as well as save costs to litigants." Pelham Realty Corp. v. Board of Transportation, 303 N.C. 424, 430-31, 279 S.E.2d 826, 830 (1981). See also Miller v. Marrocco, 63 Ohio App.3d 293, 296, 578 N.E.2d 834, 836 (1989) (physician in stipulation admitted he owed a duty of care to plaintiff patient and had breached that duty). "Such stipulations continue in force for the duration of the controversy and preclude the later assertion of a position inconsistent therewith." In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 14, 249 S.E.2d 698, 706 (1978). Based on this stipulation and the uncontested fact that Dr. Kazior knew the residents at the Hospital were actually treating patients when he undertook the duty to supervise the residents as an on-call supervising physician, we conclude that he owed the patients — including Mozingo, Jr. — a duty of reasonable care in supervising the residents. Further, we conclude that the defendant's duty of reasonable care in supervising the residents was not diminished by the fact that his relationship with the plaintiffs did not fit traditional notions of the doctor-patient relationship.

The modern provision of medical care is a complex process becoming increasingly more complicated as medical technology advances. Moeller v. Hauser, 237 Minn. 368, 371, 54 N.W.2d 639, 642 (1952); Maxwell v. Cole, 126 Misc.2d 597, 599, 482 N.Y.S.2d 1000, 1002 (1984); Grubb v. Albert Einstein Med. Center, 255 Pa. Super. 381, 396, 387 A.2d 480, 487 (1978). Large teaching hospitals, such as the Hospital in the present case, care for patients with teams of professionals, some of whom never actually come in contact with the treated patient but whose expertise is nevertheless vital to the treatment and recovery of patients. One commentator states,

In the delivery of health care services in an institutional setting it is increasingly difficult to determine factually who is in control of whom. As allied health professionals proliferate and are accorded a greater degree of independence from the direct supervision and control of the attending physician, the matter of the right to control another's actions becomes a very difficult question both as a matter of fact and of law.

Arthur F. Southwick, The Law of Hospital and Health Care Administration 580 (2d ed. 1988). Another commentator states,

The health care environment requires cooperation and teamwork. Physicians are dependent upon many other health care professionals in a health care institution to ensure good patient care. . . . The health care professional is obligated to take actions to protect the interest of patients, who are innocent parties in the health care environment. A failure to act in the interest of good patient care or in the protection of the public welfare creates liability.

John Dale Dunn, Practice with co-providers, in Legal Medicine: Legal Dynamics of Medical Encounters 434, 438 (2d ed. 1991).

Medical professionals may be held accountable when they undertake to care for a patient and their actions do not meet the standard of care for such actions as established by expert testimony. Thus, in the increasingly complex modern delivery of health care, a physician who undertakes to provide on-call supervision of residents actually treating a patient may be held accountable to that patient, if the physician negligently supervises those residents and such negligent supervision proximately causes the patient's injuries. See Jerry Zaslow, What is Malpractice in General Surgery?, Medical Trial Technique Quarterly 272, 285-86 (1981 Annual) (discussing supervisory duties of surgical staff in a "teaching institution"). See also Stewart R. Reuter, Some Legal Aspects of Angiography and Interventative Radiology, Medical Trial Technique Quarterly 59, 67 (1987 Annual) ("Physicians with supervisory responsibilities must act in a reasonably prudent manner" or face tort liability for negligent supervision).

Courts in other jurisdictions also have recognized a duty of care owed by a supervising physician to a patient actually cared for by a supervised resident. McCullough v. Hutzel Hosp., 88 Mich. App. 235, 276 N.W.2d 569 (1979); Maxwell v. Cole, 126 Misc.2d 597, 482 N.Y.S.2d 1000 (Sup.Ct. 1984) (rejecting the defendant's "narrow reading of [a supervising] physician's responsibility" and concluding that failure "to provide medically acceptable rules and regulations which would insure appropriate supervision of ill patients" is a reasonable basis on which to find "a breach of the standards of medical care by that individual [defendant physician]"); see also Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639 (1952) (although a doctor-patient relationship existed, the appellate court affirmed the verdict finding the supervising doctor liable for his patients' injuries caused by the negligent post-operative care rendered by resident physicians). In McCullough v. Hutzel Hosp., 88 Mich. App. 235, 276 N.W.2d 569 (1979), for example, the appellate court concluded that a supervising physician owed the plaintiff a duty of care in supervising the residents actually caring for the plaintiff. Id. at 239, 276 N.W.2d at 571.

The plaintiff in that case claimed that the defendants improperly performed a tubal ligation on her. Id. at 237, 276 N.W.2d at 571. Because the surgery was performed in a teaching hospital, a resident supervised by the defendants actually performed the operation. Id. at 238, 276 N.W.2d at 570. A few months after the operation, the plaintiff became pregnant and underwent a therapeutic abortion and a hysterectomy. Id. at 237-38, 276 N.W.2d at 570. The jury awarded the plaintiff $100,000 in damages. Id. at 238, 276 N.W.2d at 570. The court in upholding the verdict stated, "Even though the surgical procedure was actually performed by a resident, defendants were under a duty to see that it was performed properly. . . . Their [defendants'] failure to take reasonable care in ascertaining that the surgery was competently performed renders them liable for the resulting damages." Id. at 239, 276 N.W.2d at 571.

In the present case, the defendant Dr. Kazior stipulated that he assumed the responsibility for the on-call supervision of the obstetrics residents at the Hospital. As a result, we have concluded that the defendant owed Mozingo, Jr., a duty of reasonable care in supervising the residents who actually cared for him.

The defendant Dr. Kazior further argues that the affidavits of the chairmen of the three teaching hospitals in North Carolina established that he did not breach the applicable standard of care for on-call supervising physicians. These affidavits are not as unequivocal as the defendant and the dissent suggest. In these affidavits, each chairman using nearly identical language states that an on-call supervising physician may take calls at home "unless a problem is specifically anticipated." Thus, according to the defendant's own experts, simply remaining at home and available to take telephone calls is not always an acceptable standard of care for supervision of residents.

In opposition to the defendant's motion, the plaintiffs introduced the affidavit and deposition of Dr. Dillon in which he stated that the defendant Dr. Kazior did not meet the accepted medical standard for an on-call supervising physician, given the known medical condition of Sandra Dee Mozingo. In Dr. Dillon's opinion, the defendant Dr. Kazior should have called in at the beginning of his on-call coverage and periodically thereafter to check on the status of patients. The evidence forecast by the plaintiffs establishes a genuine issue of material fact as to whether the defendant doctor breached the applicable standard of care and thereby proximately caused the plaintiffs' injuries. Such issues are questions for the jury. Turner v. Duke Univ., 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989). Therefore, without expressing any opinion as to what the plaintiffs will be able to prove at trial, we conclude that the trial court erred by entering summary judgment for the defendant.

The dissent makes much of a contract between Dr. Kazior's employer and East Carolina University Medical School, contending that the contract somehow relieved Dr. Kazior of the responsibility for any negligence on his part in supervising the obstetrics residents at the Hospital. The precise terms of the contract are not before us, as it was not before the trial court and is not a part of the record on appeal. However, the defendant's forecast of evidence did refer to certain provisions of the contract.

Notwithstanding the assertions made in the dissent, we recognize the general principle that a physician may contractually limit the extent and scope of his employment. E.g., Childers v. Frye, 201 N.C. 42, 158 S.E. 744 (1931); Nash v. Royster, 189 N.C. 408, 127 S.E. 356 (1925). Here, however, the defendant has stipulated that he undertook the duty of on-call supervision of — not merely consultation with — the resident physicians actually caring for the plaintiff Alton Ray Mozingo, Jr., and his mother. The plaintiffs' forecast of evidence tends to show that the defendant performed his duty in this regard in a negligent manner. We conclude that a contract providing for supervision of resident physicians in a manner which substantial evidence tends to show is negligent will not shield a supervising physician such as the defendant from legal liability for providing such negligent supervision, at least where, as here, the plaintiff patient was not a party to that contract. See generally A. M. Swarthout, Annotation, Validity and Construction of Contract Exempting Hospital or Doctor from Liability for Negligence to Patient, 6 A.L.R.3d 704 (1966) (cases cited and analyzed therein and in the supplement); cf. 61 Am. Jur.2d Physicians and Surgeons 304 (1981); W. Page Keeton et al., Prosser and Keeton on the Law of Torts 68, at 482-84 (5th ed. 1984).

For the above stated reasons, different from those relied upon in the opinion of the Court of Appeals, we affirm the holding of the Court of Appeals, which reversed the trial court's summary judgment for the defendant.

Affirmed.

Justice LAKE did not participate in the consideration or decision of this case.