226 N.C. App. 470
N.C. Ct. App.2013Background
- Mrs. Katy gave birth to twins at McDowell Hospital on 9 February 2008 and was treated for pneumonia with antibiotics.
- On 22 February 2008, Mrs. Katy returned to the ER; Riser examined her and, with Capriola, treated her for pneumonia and discharged.
- Radiology on 25 February 2008 was interpreted by a radiologist later, diagnosing worsening congestive heart failure, which differed from the ER physicians’ assessment.
- Mrs. Katy deteriorated; she was admitted 1 March 2008, transferred to Mission Hospital on 2 March, and suffered a kidney embolus then a stroke, leading to death on 23 March 2008.
- Plaintiff, as administrator, alleged negligent delay in diagnosis by Capriola, Chung, Riser, and others caused or contributed to the death; trial occurred starting August 29, 2011.
- Jury found Capriola and Chung not negligent; found Riser negligent and awarded damages; defendants sought JNOV or new trial; new trial granted for prejudicial errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Capriola’s expert testimony on Riser’s standard of care | Capriola could opine on Riser’s standard of care as a physician assistant. | Capriola lacked qualification to testify about Riser’s standard of care. | Capriola improperly restricted; trial court abused discretion; new trial warranted. |
| Contributory negligence directed verdict | Evidence showed patient delayed care after ER instructions; jury should decide. | Andrews controls; patient delay not causally connected. | Directed verdict in plaintiff's favor was error; jury should decide contributory negligence. |
| Special jury instruction on proximate cause | Needed instruction that causation requires more than a possibility of improvement with earlier treatment. | Pattern instruction plus White v. Hunsinger support stricter proximate cause. | Trial court erred in not giving defendant’s requested proximate cause instruction; likely misled jury. |
| Admissibility of plaintiff’s remarriage | Remarriage evidence bears on damages and collateral source considerations. | Remarriage should be excluded under collateral source rule. | Remarriage evidence properly excluded; collateral source rule applied. |
Key Cases Cited
- Whitehurst v. Boehm, 41 N.C. App. 670 (1979) (standard of care testimony requires expert proof)
- Purvis v. Moses H. Cone Mem’l Hosp. Serv. Corp., 175 N.C. App. 474 (2006) (Rule 702(d) allows expert on PA standard of care if familiar with community resources)
- Barham v. Hawk, 165 N.C. App. 708 (2004) (recognizes purposes of expert testimony and related standards)
- Cato Equipment Co. v. Matthews, 91 N.C. App. 546 (1988) (implicit expert qualification when ruling admissibility of testimony)
- Sherrod v. Nash General Hosp., Inc., 348 N.C. 526 (1998) (prohibition on jury-facing judicial statements about expert qualifications; must not reveal judge's opinion)
- McGill v. French, 333 N.C. 209 (1993) (active patient responsibility for care; contributory negligence context)
- Andrews v. Carr, 135 N.C. App. 463 (1999) (contributory negligence issue for jury where post-treatment activities are involved)
- Ellison v. Gambill Oil Co., 186 N.C. App. 167 (2007) (standards for reversible error in evidence instructions)
- Outlaw v. Johnson, 190 N.C. App. 233 (2008) (criteria for giving specific jury instructions)
- Warren v. Gen. Motors Corp., 142 N.C. App. 316 (2001) (motion in limine standard of review)