*1 of the circuit court is the decision Accordingly, REVERSED. PLEICONES, JJ., C.J., MOORE, and
TOAL, WALLER concur. S.E.2d 30 Tracy Cole,
Marty co-administrators of S. K. COLE Tracy Kyle Cole, Austin Estate of S. individually, Respondents, Marty Cole, K.
v. RAUT, M.D., Dr. Pratibha P. Raut Associates, P.A., Petitioners. & No. 26503. Supreme Court South Carolina. Feb. 2008. Heard June 2008. Decided July 2008. Rehearing Denied *3 Hood, Hood, Jr., Robert H. Robert H. and Deborah Harri- Sheffield, counsel, Firm, son all Charleston, of Hood Law for Petitioners. Henshaw, Jr., Furr,
Charles L. Ohanesian, Henshaw & Columbia, for Respondents.
Chief Justice TOAL. case, In negligence this medical appeals court of re- the trial general versеd court’s favor of Petitioner doctor, holding that trial court erred in instructing the jury on the defense of the risk. This Court granted certiorari review the decision of the court of We appeals. appeals reverse decision court of reinstate the verdict for Petitioner. Background
Factual/Procedural delivering Before her son in February Respondent (“Cole”) Marty delivery Cole discussed the various options (“Dr. obstetrician, her Dr. Petitioner Pratibha Raut *4 Raut”). a previоusly baby by Cole had delivered caesarian (or C-section), section but Dr. Raut recommended that Cole undergo section,” a birth “vaginal after caesarian known as a time, At the VBAC. YBAC was the recommended method of delivery the risk despite that the uterine scar from Cole’s previous baby C-section could cause the to rupture and suffer deprivation. harm from oxygen
Dr. Raut a discussed risks of YBAC with delivery Cole and her during prenatal days husband visit two before giving birth, day, and the next informed Dr. that Colе Raut she past she to a VBAC. Because was two weeks attempt
wanted to labor induced date, Dr. Raut scheduled Cole have her due When Cole day Hospital. at Chester Memorial following obtained following day, the nurse hospital to the reported labor before beginning informed consent Cole’s written form documented Cole’s The consent delivery process. and medi- through of labor delivery, consent to a induction VBAC medication, also cation, and augmentatiоn of labor with and if neces- delivery by to indicated authorization C-section Cole’s the form sary. Specifically, provided: unfore- recognize during operation, I the course may pro- additional or different seen conditions necessitate those set forth above and I cedures or services [sic] surgeon and named request further authorize above are, in perform procedures professional ... such his and judgment, necessary desirable. labor a.m. to deliver intending
Dr. Raut induced at 8:00 VBAC, yet retaining surgical on-call baby by Cole’s crew pro- Labor emergency necessary.1 case an C-section became the fetal slowly following morning, 1:30 the gressed baby’s heart began indicating changes heart monitor nursing changes rate. did not abnormal to the appear These However, a.m., baby’s 2:00 in the changes further staff. rate administer to oxygen heart nurses to Cole prompted Raut, already present hospital, at the to summon Dr. who was heart rаte delivery baby’s to the room. When she viewed monitor, notify to attempted Dr. Raut became concerned crew, already had surgical the on-call been summoned which that it emergency, to the to attend another needed hospital operating remain there. Because the on-call crew still initial patient, operat- Dr. Raut’s call emergency unanswered, 2:10 a.m. that room and it was until ing went standby room received formal notice. operating a.m., began complain pains, At 2:15 abdominal Cole a.m., at 2:20 indicating ruptured, that her uterine had wall birth, Kyle's Hospital At the Memorial contained two 1. time of Chester surgery daily perform operating crews available rooms in-house during operation. Outside of the procedures scheduled set hours standby operation, single surgical regular crew remained hours emergency surgical on-call basis in the event that a available on an during time. arose this *5 Dr. Raut formally ordered an emergency for C-section Cole. The C-section began 2:42 a.m. and son Kyle was born at Kyle 2:45 a.m. suffered from brain damage and related prob- lems, including palsy, cerebral developmental delays, and a seizure disorder. conditions, As a result of these Kyle died in August 2003.
The Coles brought medical negligence action in their individual capacities and on behalf of Kyle Dr. against Raut and her medical practice. The alleged Coles that Dr. Raut’s in delay ordering the emergency C-section and failure to Kyle deliver a timely by manner C-section resulted in fetal oxygen deprivation causing Kyle’s various medical conditions trial, and his ultimate death. At expert witnesses for the Coles testified that Dr. Raut was negligent failing to order a C-section at 2:00 a.m. when the heart rate monitor first indicated troublesome variables in Kyle’s héart rate. The Coles’ expert obstetrician further testified that accordance with American College of Obstetrics and stan- Gynecology dards, the surgical team should have been able to deliver Kyle in this manner his by latest, 2:30 a.m. at the opinion, delivery by no later than 2:33 a.m. would have result- ed in a neurologically healthy baby. This testimony differed slightly from that of the expert Coles’ witness on neonatalogy who opined permanent brain damage had almost certainly by occurred 2:30 a.m. Conversely, expert witnesses for the defense testified that Dr. Raut did not deviate from the standard of care with respect ordering Kyle’s delivery by C- section because there nothing to indicate an emergency a.m., until 2:20 at which time Dr. Raut promptly ordered the C-section. The defense also emphasized that the hospital had only one operating hour, crew available at this and that this crew was performing an emergency procedure on another patient when Dr. Raut expressed first concern. evidence,
At the close of the trial court Dr. granted Raut’s earlier motion to amend her pleadings include assumption defense, the risk as an affirmative but denied the doctor’s request special for a verdict form. The trial court instructed on the law of negligence followed risk, doctrine of assumption and the jury returned a ¿ general verdict in of Dr. favor Raut. The Coles moved trial on grounds new erroneously charged *6 risk assumption on the of of the because jury doctrine delayed the risk of a The had not assumed C-section.
Cole appealed. motion court and the Coles trial denied Coles’ initiаlly the trial The court of affirmed court’s appeals based of application in favor of Dr. Raut judgment rehearing, petitioned rule. After the Coles’ two-issue remanded, finding of the case and that appeals court reversed of charge assumption that the trial erroneous on court’s rule did risk the two-issue not prejudiced Coles Raut, 434, uphold jury verdict. Cole v. apply certiorari, This 740 (Ct.App.2005). granted 617 S.E.2d Court Raut following and Dr. raises the issue for review: trial Did the court err that the сourt’s appeals finding of defense of of the jury assumption instructions on the risk constituted error? reversible of review
Standard An court the trial appellate will reverse court’s the trial regarding jury decision instructions unless Cantrell, committed an discretion. v. 339 abuse of Clark S.C. (2000). 369, 389, 528, 529 S.E.2d 539 An abuse of discretion of ruling occurs when the trial court’s based on an error law or is not the evidence. Id. supported by
Law/Analysis argues Dr. Raut that the court of erred appeals finding the trial the defense jury court’s instructions on of error, and assumption of the risk constituted reversible we agree. matter, the court primary
As we find that of trial correctly held that the court erred in appeals charging risk. jury jury charge consisting A assumption confuse the inapplicable principles may of irrelevant error confusion jurys and constitutes reversible where the Washington, the outcome the trial. State 338 affects v. S.C: (2000). 392, 400, 709, 526 S.E.2d In order for the doctrine case, assumption apply particular of thе risk to injured freely voluntarily exposed him- party must have danger self to a which he understood appreciated.2 known (1986). Faile Bycura, v. In this case the of the risk improper because even if Cole assumed risk respect procedure by form, VBAC consent signing the did not Cole simultaneously any assume the risk danger specifically delayed delivery, associated with a C-section which is basis for the negligence Coles’ medical claim. The court of appeals found, agreе, and we does record not indicate that recognized any Cole danger posed by delay between the doctor’s warning signs observation indicating need for a delivery C-seetion and actual of a commencement C- Furthermore, section delivery. Cole was not aware possible might circumstances under which such a delay *7 occur. could not Accordingly, Cole understand and appreciate the Therefore, nature and extent of the of a danger delаy. the court of appeals correctly found that the trial erred in charging of the risk. assumption instruction, however,
An jury erroneous is not grounds for reversal unless the can appellant prejudice show Simmons, from the erroneous instruction. Ellison v.
364, 372,
209,
(1961).
120 S.E.2d
213
From
premise,
this
the
for
majority
the court
writing
appeals
found that the jury
on
charge
of the risk
assumption
constituted reversible error
charge
because the
“had
potential
the
the jury
confuse
concerning
underlying
factual basis of the Coles’ claims
and
with a
availed Raut
defense that was not supported by the
Cole,
evidence.”
An of the jury charges examination is instructive in this matter. After on giving charge negligence and the doc- risk, trine of of the the trial assumption court concluded with the following explanation: effectively
2. assumption This Court abolished affirmative defense of Plantation, Davenport Hope holding of the risk in v. Cotton that the largely by comparative negli- doctrine had been subsumed thе law of 71, 88, (1998). However, gence. 333 S.C. 508 S.E.2d prior cause Davenport of action in instant case arose and the validity regard challenged appeal. is on defense that not freely and charge you plaintiff if find that you, I under- danger to a known voluntarily exposed herself then circumstance danger, stood and such appreciated However, I be for the defendant. your verdict would hand, other if find charge you, you plaintiffs the result of the defendant’s injuries negligence werе circumstance, be your in such would negligence, then plaintiff. charge light the entire of the evidence Considering jury trial, the erroneous issues conclude that presented we not assumption prejudicial the risk was charge matter, In forth clear and very this set two parties Coles. that Dr. argued distinct theories the case: Coles very order the 2:00 failing Raut was C-section negligent a.m., her Dr. Raut maintained that actions were while conditions, that under the negligent particular hospital timеly healthy in her everything power she did deliver Therefore, erroneous, although baby. we believe jury’s little charge of the risk had effect on party’s consideration of the evidence under either presented theory of the case.
Furthermore, the trial confu- any potential court clarified by definitively estab- resulting sion from erroneous injuries should for the if lishing Kyle’s find Coles Dep’t Dr. Raut’s See Proctor v. negligence. resulted from Control, 279, 319, Health and Envt’l (“If the [jury] charge reasonably free (Ct.App.2006) *8 error, might misleading be do not portions from isolated which error.”). It be too speculative constitute reversible would far part prejudicial given on the of this Court to find error apparent insufficiency at trial presented evidence on early facilities at this available staff and in this small hospital hour, testimony explaining as medical experts well as from that Dr. Raut not C-section negligent ordering was Cole’s a more Accordingly, argument she specific when did. without thаt showing prejudiced, how the Coles were we hold on of the risk not amount charge assumption erroneous does to error. reversible to appeals’ analysis turn next the court of
We rule, jury rule. when a returns two-issue Under two-issue
407
involving
a
verdict in a case
or more issues
general
two
or
defenses, and
at
supported
the verdict is
least one
issue
presented
or
that
jury
defense
has been
free from
Kist,
Inc. v.
error,
C &
the verdict
be reversed.
Gold
will not
Bank,
272, 282,
S Natl
67,
286 S.C.
73 (Ct.App.
S.E.2d
1985). The aрplication of the two-issue rule is separate and
distinct from a
error
prejudicial
inquiry,
operates
jury
a
verdict
uphold
by
sustained
the facts of the case.
The rule is consistent
notion
established
every
courts
this
“exercise
appellate
pre-
State
reasonable
in favor of
verdict.” Id. sumption
validity
general
a
282,
In this
in a
applying
two-issue rule
secondary
analysis creates additional
for our
sustaining grounds
holding
that the trial
on
charge
assumption
court’s
the risk is not
Hеre,
jury
reversible error.
a general
rendered
defense
after hearing
properly
negligence
verdict
submitted
claim
on
and an erroneous
risk.3 As
above,
in the prejudice analysis
described
find there
we
was
evidence at
ample
jury
trial from which a
could have conclud
Dr.
ed that
Raut
not
negligent
rendering
was
medical
during
assistance
labor and delivery. Accordingly,
Cole’s
verdict
general
for Dr. Raut
bemay
sustained because it is
by the
claim
independently supported
negligence
which was
See
Dropkin
also
v. Beach
properly
jury.
submitted to the
Condominium,Assn.,
walk
Villas
S.E.2d 808
(Ct.App.2007)
verdict
(affirming
defense
under the
rule
alleged
two-issue
where
error in the trial court’s
plaintiff
of a
denial
directed
negligence,
verdict
issue of
but
the record
where
contained evidence
supporting
defense
on
Bryant v. Waste
cause);
verdict
the issue of proximate
Inc.,
Management,
380 (Ct.App.2000)
S.C.
S.E.2d
an
(applying
two-issue rule
determine that
erroneous
per
instruction
se
negligence
prejudicial
was
defendant where there
other
of liability sup
existed
theories
ported
ample evidence
the record
which the
upon
v.
have
Sierra
could
based its
for the
plaintiff);
Skelton,
307
Furthermore, nothing in this jurisprudence sug- Court’s would, gests, dissent as the cases on a excluding presented of single theory liability single affirmative defense from the ambit of the rule. two-issue To the in what contrary, the appears very to be case in first this State set forth the rule, basic tenets of two-issue this that “a Court observed general finding for the of plаintiff is sufficient to dispose the petition issues both on and on the counter- [defendant’s] claim.” Refrigerator Supply Hussmann & Co. v. & Cash Inc., Grocer, 191, 196, (1926). Carry 173, 134 S.C. 132 S.E. West, See also Anderson v. (1978) (“[W]here a jury returns a general involving verdict or
two more issues and supported its is as to at least issue, reversed.”). one the verdict will not be Accordingly, that any because we find error in of charging assumption instance, the risk in prejudicial the Coles the first we decline to place further limitations on scope of the two- issue rule in today. our decision
Therefore, jury may verdict for the be defense affirmed because the jury charge assumption risk did error, prejudicial alternative, not amount to or in the pursuant two-issue rule.
Conclusion reasons, For foregoing appeals we reverse the court of judgment and reinstitute trial court’s favor of Dr. Raut. MOORE, WALLER, JJ., and Acting APHRODITE Justice KONDUROS, PLEICONES, K. concur. J a dissenting separate opinion.
Justice PLEICONES. dissent, hold that the erroneous
I and would respectfully Coles, charge prejudiced risk assumption Appeals. the decision of the Court of affirm therefore would below, majority’s Moreover, explained my view the rule” flawed. fundamentally issue discussion “two this judge I trial majority Court agree charging jury defense erred view, this my prejudiced risk. In the Coles were that it must return defense verdict which instructed *11 exposed and hex-self plaintiff freely voluntarily if it found “the dan- a understood and danger appreciated to known “informed forms wex-e ger” in two consent” which light need my engage into evidence. In we not opinion, introduced to determine this speculation weighing evidence reversible error. constituted
I
invokes the two
opinion
am also concerned because the
the rule’s
appeal despite
inapplicabili
issue rule to affirm this
a
issue rule holds that
lower court’s
ty. The two
where
one of
independent grounds, only
rests on two
general verdict
court
affirm.
challenged
appeal,
appellate
on
will
which is
simply
appellate
The
one
of the fundamental
expression
rule is
of our
to affirm the decision of the lower
philosophy
courts:
a
appellate
if
It also serves
second
possible.
goal,
court
is,
by allowing
scarce
resources
courts
appellate
conserve
...
alter
forgo
“pointless
which cannot
analyzing
exceptions”
Co.,
v.
Mut. Ins.
255 S.C.
outcome. Buckner
Preferred
(1970).
are
544
These
reflected
policies
e.g.
verdict.
challenges
general
situations other than
a
See
County Georgetown,
v.
Brading
S.C.
S.E.2d
(1997)(failure to
grounds
ruling
requires
all
for
below
argue
affirmance); Buckner,
(same);
Prop,
and Cas.
supra
Yensen,
(Ct.App.
v.
I issue rule is majority properly two agree for more plaintiff a verdict rests on applied where theory challenged than not all of are liability, one which theories, a defense verdict rests on appeal, multiple or where Here, one not challenged.4 least of which is have a we verdict, but one only liability defense and one dеfense. theory I majority As understand the it opinion, applying two rule to a preclude issue review of verdict appellate defense where the issues” are the challenge “two defendant’s plaintiffs proof, (admittedly and an inapplicable) affirmative mean, defense. example, This new rule would for that in an automobile plaintiff wreck ease where the the light testified green red, was and the defendant testified light was party neither could appeal charging inаpposite liability theories or following defenses a verdict general jury because a “general party] may verdict be [either sustained because it is independently supported by negligence claim which was submitted to the properly jury.” join I cannot creation of this new rule. view,
The two issue rule no application, my has where as there theory here is one liability (negligence) the defense theories are “not proven” “assumption of the risk.” That have may returned defense upon finding that Dr. Raut not negligent rather than on the erroneous risk defense should affect the Coles’ to an right and a reversal. Since appeal appellate has no basis upon which determine whether the defense verdict rests on the jury’s decision the Coles failed in their or proof upon finding risk, that Mrs. Cole assumed the *12 view, in my the Coles have requisite preju demonstrated the fear, entitling dice them to a new The majority, trial. I has unwittingly resurrected the same of pеrversion the “two issue soundly rejected rule” it v. Dep’t Anderson S.C. of 417, 421, & Highiways 253, Pub. 322 Transp., S.C. 255 of (1996)(rejecting Court of Appeals’ misapplication the majority, 4. Refrigerator Supply Unlike I do not read & Hussmann Grocer, Inc., 191, (1926) Carry Co. v. Cash & 134 S.C. S.E. 132 173 as rule, involving application holding of two issue rather but party interposes timely objection, that where a a no verdict for disposes party all other of claims and counterclaims. Hussmann is party challenge appeal grounds not a case where a to failed on all the rеst, jury’s upon might which party’s verdict but one rather where timely object precluded failure at trial to to the form of the verdict West, (1978), further relief. Anderson 270 S.E.2d v. 551 majority, actually supports my cited view also that the rule is properly only appellant challenge all invoked where fails to upon might theories which the rest. rule, the jury’s general verdict part “because [if] two issue it of susceptible two upheld anytime be could potentially constructions, be for trial there no incentive or would more errors....”). to correct such courts requisite prejudice I believe the Coles established Since the “two assumption of risk and since from the improper affirm the decision apply, rule” I would issue does the matter for reversing remanding Appeals Court new trial. S.E.2d County Magistrate
In the Matter of Anderson SMITH, Respondent. F. Michael Supreme of South Carolina. Court June 2008. ORDER petition asking Disciplinary has filed The Office Counsel pursuant on interim place respondent suspеnsion to Court 17(a) 17(b) Disci- to and Rule Rules Judicial Rule Enforcement, Rule SCACR. plinary petition granted respon- IT IS ORDERED County is interim Anderson placed suspension. dent is salary during to his obligation pay respondent under no 216, 403 Ferguson, See In Matter suspension. (1991). immediately Respondent is directed S.E.2d 628 records, funds, books, documents property, all deliver judicial Magistrate office Chief relating his monies, enjoined any He is from access County. Anderson accounts, judicial office. bank and records related his *13 that respondent prohibit- IT IS FURTHER ORDERED unless entering premises magistrate ed from from officer after authorization escorted law enforcement