Wiggins v. E. Carolina Health-Chowan , 234 N.C. App. 759 ( 2014 )

NO. COA13-1428
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
LAKISHA WIGGINS and G. ELVIN
SMALL, as Guardian ad litem for
ROY LEE BROTHERS, A Minor,
Plaintiffs,
v. Chowan County
No. 08 CVS 186
EAST CAROLINA HEALTH-CHOWAN, INC.
d/b/a CHOWAN HOSPITAL and MICHAEL
DAVID GAVIGAN, M.D.,
Defendants.
Appeal by plaintiffs from judgment entered 15 April 2013 by
Judge Gary E. Trawick in Chowan County Superior Court. Heard in
the Court of Appeals 22 April 2014.
Charles G. Monnett III & Associates, by Charles G. Monnett
III, for plaintiffs-appellants.
Harris, Creech, Ward and Blackerby, P.A., by Charles E.
Simpson, Jr. and Thomas E. Harris, for defendant-appellee.
HUNTER, Robert C., Judge.
Lakisha Wiggins (“Ms. Wiggins”) and G. Elvin Small,
guardian ad litem for Ms. Wiggins’s son, Roy Lee Brothers,
(“Roy”) (collectively “plaintiffs”) appeal from judgment entered
on 15 April 2013 in favor of East Carolina Health-Chowan, Inc.
d/b/a Chowan Hospital (“Chowan Hospital” or “defendant”) on
-2-
plaintiffs’ medical negligence claim.1 On appeal, plaintiffs
argue that the trial court erred by: (1) instructing the jury on
the sudden emergency doctrine; and (2) failing to instruct the
jury on defendant’s liability for unsuccessful or harmful
subsequent medical treatment necessitated by defendant’s
negligence.
After careful review, we hold that the trial court erred by
instructing the jury on the sudden emergency doctrine and remand
for a new trial.
BACKGROUND
The evidence presented at trial established the following
facts: On Friday, 8 July 2005, Ms. Wiggins was admitted to
Chowan Hospital for labor and delivery of her son, Roy. Labor
was induced on Friday night but was discontinued until the
following morning. Prior to Ms. Wiggins’s arrival at Chowan
Hospital, there was no indication that anything was wrong with
Roy or that he had suffered any injury. After a brief pause the
night before, induction resumed at 8:08 a.m. on 9 July 2005 with
the administration of the drug Pitocin. Though required by
hospital protocols, no vaginal exam was conducted at this time.
At around 12:54 p.m., a nurse performed a vaginal exam on Ms.
Wiggins and discovered an umbilical cord prolapse.
1
Dr. Michael Gavigan (“Dr. Gavigan”) was also named as a
defendant in plaintiffs’ complaint. He is no longer a defendant
to this suit and is not a party in this appeal.
-3-
A cord prolapse is a condition where the umbilical cord
protrudes from the vagina. The baby’s blood supply and oxygen
may become compromised if the cord is compressed. Low blood
flow and low oxygen can cause damage to a baby’s brain.
Standards of practice require a baby to be delivered as soon and
as safely as possible by emergency cesarean section (“C-
section”) in the event of a cord prolapse.
After discovering the cord prolapse, the nurses immediately
called the attending physician, Dr. Gavigan, and preparations
were made for an emergency C-section. It took sixteen minutes
to move Ms. Wiggins into the operating room. Dr. Gavigan
proceeded with the C-section under local anesthetic.
Roy was delivered at 1:30 p.m. with APGAR scores of 0 at
one minute after birth, 3 at five minutes, and 7 at ten minutes.
An APGAR score is a test designed to evaluate a newborn’s
physical condition using a score of 0-10 and to determine
whether any immediate additional or emergency care is needed.
Dr. Charles O. Harris, a practicing obstetrician, testified at
trial that an APGAR score of 0 means the baby had no heart rate,
no respiratory rate, and no muscle tone. He further testified
that “[Roy’s] ten minute APGAR was seven which is normal” and
stated that Roy’s initial resuscitation by the pediatric team
“went well.”
-4-
Following delivery, Roy was transferred to The Children’s
Hospital of the King’s Daughters in Norfolk, Virginia (“The
Children’s Hospital”) for further treatment. At the time, The
Children’s Hospital was a participant in clinical trials for an
experimental cooling procedure that is used on newborns who
suffer brain damage due to low oxygen or blood flow at birth.
The cooling is meant to reduce the metabolic needs of a
newborn’s brain tissue to help prevent long-term damage. This
procedure was performed on Roy when the transport team arrived.
However, the procedure was discontinued after Roy experienced a
second episode of low oxygen while being cooled.
Plaintiffs filed a complaint against Chowan Hospital and
Dr. Gavigan on 27 June 2008 alleging that Roy sustained severe
brain injury as a proximate result of defendants’ failure to
perform a C-section in a timely manner. According to the
complaint, Roy has permanent cognitive impairments and loss of
motor control due to the complications with his birth. At
trial, plaintiffs presented testimony of liability expert Dr.
Fred Duboe (“Dr. Duboe”), who testified that Chowan Hospital’s
nurses were negligent by failing to: (1) perform a vaginal exam
immediately before administering Pitocin as required by the
applicable standards of practice and the hospital’s own
protocols; (2) notify Dr. Gavigan of the results of the vaginal
exam that should have been performed; (3) give Terbutaline to
-5-
slow or stop Ms. Wiggins’s contractions after the cord prolapse
occurred; and (4) move Ms. Wiggins to the operating room
expediently before Roy’s delivery by emergency C-section.
Several expert witnesses at trial testified that a cord
prolapse is uncommon and qualifies as a medical emergency. All
of the healthcare providers and experts who testified at trial
agreed that Ms. Wiggins did not have any risk factors for a cord
prolapse.
During the charge conference, defendants requested and the
trial court agreed to give an instruction regarding the sudden
emergency doctrine, which lessens the standard of care for a
defendant in certain emergency situations; plaintiffs preserved
their objections to the instruction. The jury returned a
verdict in favor of defendants on 20 March 2013, and judgment
was filed 15 April 2013. Plaintiffs timely filed and served
notice of appeal.
DISCUSSION
I. Jury Instruction on the Sudden Emergency Doctrine
Plaintiffs argue that the trial court erred by instructing
the jury on the sudden emergency doctrine because the doctrine
is not applicable in medical negligence actions and was
therefore misleading and likely affected the outcome of the
trial. We agree.
-6-
The trial court is responsible for ensuring that the jury
is properly instructed before deliberations begin. Mosley &
Mosley Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361
S.E.2d 608, 612 (1987) (“It [is] the duty of the [trial] court
to instruct the jury upon the law with respect to every
substantial feature of the case.”). A trial court’s primary
purpose in instructing the jury is “the clarification of issues,
the elimination of extraneous matters, and a declaration and an
application of the law arising on the evidence.” Littleton v.
Willis, 205 N.C. App. 224, 228, 695 S.E.2d 468, 471 (2010). In
considering whether to give a requested jury instruction, the
evidence must be viewed in the light most favorable to the party
requesting the instruction. Carrington v. Emory, 179 N.C. App.
827, 829, 635 S.E.2d 532, 534 (2006). On appeal, this Court
should consider the jury charge contextually and in its
entirety. Hammel v. USF Dugan, Inc., 178 N.C. App. 344, 347,
631 S.E.2d 174, 178 (2006).
The charge will be held to be sufficient if
it presents the law of the case in such
manner as to leave no reasonable cause to
believe the jury was misled or misinformed.
The party asserting error bears the burden
of showing that the jury was misled or that
the verdict was affected by an omitted
instruction. Under such a standard of
review, it is not enough for the appealing
party to show that error occurred in the
jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
-7-
jury.
Id. (citations and quotation marks omitted).
The North Carolina Pattern Jury Instruction for the
standard of care in a medical negligence case is based on the
duties enunciated in Hunt v. Bradshaw, 242 N.C. 517, 521, 88
S.E.2d 762, 765 (1955), and later codified into N.C. Gen. Stat.
§ 90-21.12 (2013).2 It provides that a plaintiff needs to prove
that the defendant was negligent in providing medical care by
establishing a violation of any one of the following duties:
2
We note that the General Assembly recently amended section
90.21-12 to address the precise issue raised in this appeal.
Subsection (b) provides:
(b) In any medical malpractice action
arising out of the furnishing or the failure
to furnish professional services in the
treatment of an emergency medical condition,
as the term “emergency medical condition” is
defined in 42 U.S.C. § 1395dd(e)(1)(A), the
claimant must prove a violation of the
standards of practice set forth in
subsection (a) of this section by clear and
convincing evidence.
N.C. Gen. Stat. § 90-21.12(b). Thus, rather than lowering the
applicable standard of care, as with the sudden emergency
doctrine, the General Assembly elected to raise the burden of
proof for medical negligence actions arising from treatment of
emergency medical conditions. However, because this amendment
altered rather than clarified the law, and the facts which form
the basis of this cause of action occurred prior to the amended
statute’s effective date of 1 October 2011, we cannot apply this
provision here. See Ray v. N.C. Dep’t. of Transp., 366 N.C. 1,
8-10, 727 S.E.2d 675, 681-82 (2012) (“In the event that the
amendment is a substantive change in the law, the effective date
will apply.”); see also 2011 Sess. Laws 400 § 11 (noting that
section 90-21.12(b) “become[s] effective October 1, 2011, and
appl[ies] to causes of actions arising on or after that date”).
-8-
(1) The duty to use their best judgment in
the treatment and care of their patient;
(2) The duty to use reasonable care and
diligence in the application of their
knowledge and skill to their patient’s care;
and
(3) The duty to provide healthcare in
accordance with the standards of practice
among members of the same healthcare
profession with similar training and
experience situated in the same or similar
communities at the time the healthcare is
rendered.
N.C.P.I. —Civ. 809.00A (2013).
Here, in addition to giving the pattern instruction for the
healthcare professional standard in N.C.P.I.-Civ. 809.00A, the
trial court also used the following pattern jury instruction
requested by defendants on the sudden emergency doctrine:
A person who, through no negligence of his
own, is suddenly and unexpectedly confronted
with imminent danger to himself and others,
whether actual or apparent, is not required
to use the same judgment that would be
required if there were more time to make a
decision. The person’s duty is to use that
degree of care which a reasonable and
prudent person would use under the same or
similar circumstances. If, in a moment of
such emergency, a person makes a decision
that a reasonable and prudent person would
make under the same or similar conditions,
he does all that the law requires, even if
in hindsight some different decision would
have been better or safer.
N.C.P.I.—Civ. 102.15 (2013).
-9-
The applicability of the sudden emergency doctrine in
medical negligence actions is an issue of first impression in
North Carolina. Plaintiffs argue that the sudden emergency
doctrine does not apply in medical negligence actions because
medical emergencies are already contemplated and built-in to the
standard of care for medical professionals; thus, plaintiffs
argue that the trial court’s charge to consider a what a
“reasonable and prudent person” would do in a medical emergency
was misleading to the jury, where they were also instructed to
consider defendant’s actions “in accordance with the standards
of practice among members of the same healthcare profession.”
Defendant argues that the sudden emergency doctrine is equally
applicable in medical negligence cases as it is in ordinary
negligence cases. Defendant further contends that the
instruction regarding the sudden emergency doctrine was not
misleading when considered contextually in light of the entire
jury charge.
In a general negligence action in North Carolina, the
sudden emergency instruction can be requested when a party
presents substantial evidence showing that a party (1) perceived
an emergency situation and reacted to it, and (2) the emergency
was not created by that party’s own negligence. Carrington, 179
N.C. App. at 829-30, 635 S.E.2d at 534. “The doctrine of sudden
emergency creates a less stringent standard of care for one who,
-10-
through no fault of his own, is suddenly and unexpectedly
confronted with imminent danger to himself or others.” Marshall
v. Williams, 153 N.C. App. 128, 131, 574 S.E.2d 1, 3 (2002)
(citation and quotation marks omitted).
The state of the law on the doctrine of
sudden emergency has been thoroughly stated
by our courts. One who is required to act in
an emergency is not held by the law to the
wisest choice of conduct, but only to such
choice as a person of ordinary care and
prudence, similarly situated would have
been.
Masciulli v. Tucker, 82 N.C. App. 200, 205-06, 346 S.E.2d 305,
308 (1986) (citation and quotation marks omitted).
Because our Courts have yet to address whether this
doctrine applies to medical negligence cases, defendant relies
on cases from Tennessee, New Mexico, and Massachusetts in which
the appellate courts in those jurisdictions have affirmed
application of the sudden emergency doctrine in the medical
negligence context. In Olinger v. Univ. Med. Ctr., 269 S.W.3d
560 (Tenn. Ct. App. 2008), the Tennessee Court of Appeals
affirmed the trial court’s jury instruction on the sudden
emergency doctrine in a case involving labor and delivery that
left the newborn baby with brachial plexus palsy. Olinger, 269
S.W.3d at 561. The doctor attempted two different maneuvers to
resolve the shoulder dystrocia and it was found that the failure
of those maneuvers was extremely rare. Id. at 565. Experts
-11-
testified at trial that the failure of a doctor to resolve
shoulder dystrocia with two typical maneuvers should be
considered a medical emergency. Id. at 566. The court stated:
We agree with [p]laintiffs’ argument that
because of a physician’s training and
background, the sudden emergency doctrine
has a limited application in medical
malpractice cases. Simply because there is a
medical complication does not necessarily
mean that there is a sudden emergency. We
are not, however, willing to go as far as
argued by [p]laintiffs and hold that the
sudden emergency doctrine never is
applicable in a medical emergency situation.
Id. at 568-69.
In another case, the Tennessee Court of Appeals found
material evidence of a sudden emergency when an individual with
a minor cut on her finger subsequently experienced a vasovagal
reaction after an emergency room doctor administered a numbing
shot, and she subsequently fell off the gurney bed and developed
a traumatic brain injury as a result of her fall. See Ross v.
Vanderbilt Uni. Med. Ctr., 27 S.W.3d 523, 525-26 (Tenn. Ct. App.
2000). The plaintiffs argued that the doctor was negligent
because he left the bedside without putting up the bedrails, id.
at 526, and “that the sudden emergency doctrine is not
applicable in a medical malpractice case to lower the standard
of acceptable professional practice required of an emergency
room physician.” Ross, 27 S.W.3d at 526, 529. The appellate
court disagreed and held that “under the appropriate facts,” the
-12-
sudden emergency doctrine may be applied in assessing an
emergency room doctor’s fault. Id. at 530. In so holding, the
court emphasized the importance of the sudden emergency doctrine
in a comparative fault jurisdiction, while noting there may also
be instances where the doctrine may come into play when no
comparative fault is alleged. Id. at 527-28. The court also
noted that the doctrine does not constitute a defense “as a
matter of law,” and does not negate the defendant’s liability,
but must be considered as a factor in the comparative fault
analysis. Id.Defendant also cites Sutherlin v. Fenenga, 810 P.2d 353,
356 (N.M. Ct. App. 1991), where a 16-year-old boy who came into
the emergency room with a sports injury to his knee died after
an anesthesia machine malfunctioned during surgery, causing a
rupture to his right lung. The New Mexico Court of Appeals held
the defendant was entitled to an instruction on sudden medical
emergency, which would have lowered the healthcare
professionals’ standard of care. Sutherlin, 810 P.2d at 360.
Finally, defendant cites Linhares v. Hall, 257 N.E.2d 429(Mass. 1970), a case involving a medical negligence suit against
an anesthesiologist after a minor plaintiff suffered a cardiac
arrest during a routine tonsillectomy. The plaintiffs argued
that cardiac arrest is always a possible complication during
surgery and it should not be assumed to be “an emergency within
-13-
the meaning of the emergency doctrine.” Linhares, 257 N.E.2d at
430. The appellate court disagreed and held “if an emergency
did exist, a fact left to the determination of the jury, the
defendant then and in that event was held to the exercise of a
certain standard of care.” Id.
Based on these cases, defendant argues that the sudden
emergency doctrine is equally applicable to healthcare providers
in North Carolina as it is to a layperson, and thus the trial
court’s instruction on the sudden emergency doctrine here was
without error. For the following reasons, we disagree.
In North Carolina, the sudden emergency doctrine has been
applied only to ordinary negligence claims, mostly those arising
out of motor vehicle collisions, and has never been utilized in
a medical negligence case. See, e.g., McDevitt v. Stacy, 148
N.C. App. 448, 458, 559 S.E.2d 201, 209 (2002); Ligon v. Matthew
Allen Strickland, 176 N.C. App. 132, 141, 625 S.E.2d 824, 831
(2006); Long v. Harris, 137 N.C. App 461, 467, 528 S.E.2d 633,
637 (2000). Even in cases where the facts giving rise to suit
could presumably be categorized as sudden medical emergencies,
the general standard of care for healthcare professionals has
been sufficient to assess liability. See O’Mara v. Wake Forest
Univ. Health Services, 184 N.C. App 428, 434, 646 S.E.2d 400,
404 (2007) (utilizing the healthcare professional standard where
the plaintiff alleged that a child’s spastic quadriparetic
-14-
cerebral palsy was caused by oxygen deprivation during the final
thirty minutes of birth); Lentz v. Thompson, 269 N.C. 188, 192,
152 S.E.2d 107, 110 (1967) (applying the standard of
“professional knowledge and skill ordinarily had by those who
practice that branch of the medical art or science” where the
plaintiff’s spinal accessory nerve was severed during surgery).
The application of the healthcare professional standard of
care to a wide range of factual scenarios is not accidental.
Our Supreme Court has described the standard for medical
professionals as “completely unitary in nature, combining in one
test the exercise of ‘best judgment,’ ‘reasonable care and
diligence’ and compliance with the ‘standards of practice among
members of the same health care profession with similar training
and experience situated in the same or similar communities.’”
Wall v. Stout, 310 N.C. 184, 193, 311 S.E.2d 571, 577 (1984)
(emphasis added) (holding that the passage of section 90-21.12
did not abrogate the duties of healthcare professionals created
at common law). Part of the standard developed at common law is
to examine a healthcare professional’s conduct in light of the
factual circumstances of the case. In Brawley v. Heymann, a
semiconscious patient fell off of a narrow examining table to
which he was not secured. Brawley v. Heymann, 16 N.C. App 125,
128, 191 S.E.2d 366, 367-368 (1972). This Court held that “[a]
jury could reasonably conclude from such findings that defendant
-15-
failed to give, or see that plaintiff was given, such care as a
reasonably prudent physician in the same or similar
circumstances would have provided[.]” Id. (emphasis added).
Thus, the standard of care for healthcare professionals,
both at common law and as enunciated in section 90-21.12, is
designed to accommodate the factual exigencies of any given
case, including those that may be characterized as medical
emergencies. Therefore, we hold that the sudden emergency
doctrine is unnecessary and inapplicable in such cases, and the
trial court’s instruction on the sudden emergency doctrine here
was “likely, in light of the entire charge, to mislead the
jury.” Hammel, 178 N.C. App. at 347, 631 S.E.2d at 177.
Because this erroneous instruction likely misled the jury, we
remand for a new trial.
Even if we were to hold that that the sudden emergency
doctrine is applicable in medical negligence cases, the trial
court’s specific instructions here would still require a new
trial. The trial court instructed the jury that it should
assess defendant’s actions in light of what a reasonable and
prudent person would do when faced with the same emergency.
However, even in cases from other jurisdictions where the sudden
emergency doctrine was applied in medical negligence actions,
the language used by those trial courts limited the standard to
a reasonable healthcare professional, not a reasonable person.
-16-
For example, the sudden emergency instruction as given in
Olinger was as follows:
A physician/nurse who is faced with a sudden
or unexpected emergency that calls for
immediate action is not expected to use the
same accuracy or judgment as a person acting
under normal circumstances who has time to
think and reflect before acting. A
physician/nurse faced with a sudden
emergency is required to act within the
recognized standard of care applicable to
that physician or nurse. A sudden emergency
will not excuse the actions of a person
whose own negligence created the emergency.
Olinger, 269 S.W.3d at 564 (emphasis added). The sudden
emergency instruction given in Ross reads:
A physician who is faced with a sudden or
unexpected emergency that calls for
immediate action is not expected to use the
same accuracy of judgment as a physician
acting under normal circumstances . . . .
Ross, 27 S.W.3d at 526-27 (emphasis added). Finally, the
instruction that the defendant requested in Sutherlin, UJI Civ.
13–1113, was specifically designed for use in medical cases.
Sutherlin, 810 P.2d at 360. UJI Civ. 13-1113 provided that:
A doctor who, without negligence on his
part, is suddenly and unexpectedly
confronted with peril arising from either
the actual presence or the appearance of
imminent danger to the patient, is not
expected nor required to use the same
judgment and prudence that is required of
the doctor in the exercise of ordinary care
in calmer and more deliberate moments.
Id. (emphasis added).
-17-
Thus, when compared to the instructions in the cases cited
favorably by defendant, the trial court’s specific language here
was far too general to be considered a sound application of the
law. The charge instructs the jury to simultaneously apply the
“standards of practice among members of the same healthcare
profession with similar training and experience situated in the
same or similar communities at the time the health care is
rendered” in addition to the duty to “use that degree of care
which a reasonable and prudent person would use under the same
or similar circumstances.” These duties are incompatible.
Healthcare professionals are held to a higher standard of care
than laypersons. See Leatherwood v. Ehlinger, 151 N.C. App. 15,
20, 564 S.E.2d 883, 886 (2002) (“[B]ecause the practice of
medicine involves a specialized knowledge beyond that of the
average person, the applicable standard of care in a medical
malpractice action must be established through expert
testimony”), disc. review denied, 357 N.C. 164, 580 S.E.2d 368(2003); see also N.C. Gen. Stat. 90-21.12(a) (emphasizing that
medical professionals, to avoid liability, must uphold a level
of care in accordance with “the standards of practice among
members of the same health care profession with similar training
and experience”).
CONCLUSION
-18-
After careful review, we hold that the trial court erred by
instructing the jury on the sudden emergency doctrine. Because
this error likely misled the jury, we reverse the underlying
judgment and remand for a new trial.
NEW TRIAL.
Judges BRYANT and STEELMAN concur.