Ingram v. Henderson Cnty. Hosp. Corp.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1016
Filed: 1 May 2018
Henderson County, No. 11 CvS 890
TOKISHA M. INGRAM, Plaintiff,
v.
HENDERSON COUNTY HOSPITAL CORPORATION, INC., d/b/a MARGARET R.
PARDEE MEMORIAL HOSPITAL, RYAN CHRISTOPHER DAVIS, M.D., ROBERT
C. BOLEMAN, M.D., HENDERSONVILLE EMERGENCY CONSULTANTS, PC,
AMY K. RAMSAK, M.D., and TST MEDICAL, PA., Defendant.
Appeal by plaintiff from order entered on or about 10 October 2014 by Judge
Martin B. McGee and judgment entered on or about 24 February 2016 by Judge Mark
E. Powell in Superior Court, Henderson County. Heard in the Court of Appeals 25
May 2017.
Ferguson Chambers & Sumter, P.A., by James E. Ferguson, II, for plaintiff-
appellant.
Roberts & Stevens, P.A., by Ann-Patton Hornthal and Phillip T. Jackson, for
defendant-appellees Henderson County Hospital Corporation, Inc. d/b/a
Margaret R. Pardee Memorial Hospital.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Emma J. Hodson, for
defendant-appellees Ryan Christopher Davis, M.D., Robert C. Boleman, M.D.,
and Hendersonville Emergency Consultants, PC.
Northup McConnell & Sizemore, PLLC, by Isaac N. Northup, Jr., for
defendant-appellees, Amy K. Ramsak, M.D. and TST Medical, PA.
STROUD, Judge.
INGRAM V. HENDERSON CTY. HOSP. CORP., INC.
Opinion of the Court
Plaintiff sued defendants for medical malpractice arising out of the care they
provided to her for sepsis. A jury ultimately found all defendants not liable. On
appeal, plaintiff contends the trial court erred in several evidentiary rulings and in
dismissing her claim arising out of nursing care against defendant Henderson County
Hospital Corporation, Inc., d/b/a Margaret R. Pardee Memorial Hospital. After
careful review, we affirm.
Many witnesses testified regarding plaintiff’s illness, the medical care she
received, and the standards of care for the diagnosis and treatment of her condition.
This overview of plaintiff’s medical care omits many details and is based primarily
upon plaintiff’s medical records and the testimony of Dr. David P. Milzman, plaintiff’s
expert witness, who provided the initial summary of the facts to the jury. Defendants
disputed the interpretation and meaning of some facts, but for purposes of the issues
on appeal, we need not summarize defendants’ evidence and contentions.
I. Factual Background
The factual background of plaintiff’s case took place over 23 and 24 February
2010.
A. 23 February 2010
Plaintiff, then age 35, went to the emergency room at defendant Henderson
County Hospital Corporation, Inc., d/b/a Margaret R. Pardee Memorial Hospital
(“Pardee Hospital”) on 23 February 2010 at about 9:17 p.m. Plaintiff reported that
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Opinion of the Court
she had severe pain in her back right side, which she described as at a level of 10 out
of 10. Plaintiff also had a fever, nausea, vomiting, fatigue, and shortness of breath.
Hospital employees took plaintiff’s blood pressure and temperature; plaintiff’s heart
rate was 103 and her blood pressure was 135/83.
Within about five minutes, plaintiff was seen by defendant Ryan Christopher
Davis, M.D. Defendant Davis evaluated plaintiff and noted that she had abdominal
cramps, vomiting, and body aches; he noted her pain was mild, even though she had
identified her pain as level 10 out of 10 to a nurse a few minutes earlier. Defendant
Davis did not note that plaintiff’s pain was on her right side and noted no prior
surgeries, although plaintiff “had had her tubes tied.” Defendant Davis did a physical
examination of plaintiff and noted that plaintiff had tenderness but no “guarding and
rebound” which would indicate a “really severe abdominal exam.” Defendant Davis
did not perform a pelvic examination; he did order two laboratory tests, one to check
her urine and “basic chemistries” which shows “kidney function and . . . basic
electrolytes, sodium, potassium chloride, serum bicarbonate and sugar.” Defendant
Davis prescribed, and plaintiff received, Toradol, an intravenous (“IV”) pain
medication; Zofran, for vomiting; and IV fluids.
By about 10:30 p.m., plaintiff’s blood pressure was a little lower but her heart
rate was still 103; plaintiff reported her pain as 7 out of 10. Defendant Davis received
plaintiff’s lab test results showing her creatinine was slightly elevated and her urine
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Opinion of the Court
showed a trace of blood and “a little bit of sugar,” and white blood cells. These results
usually mean “you are fighting a bacterial infection” and indeed plaintiff’s urine also
had “a few bacteria.” Defendant Davis returned to see plaintiff and reexamined her,
noting that she felt better. Defendant Davis gave plaintiff an oral antibiotic,
Levaquin 500 milligrams, and Vicodin for pain. Defendant Davis diagnosed plaintiff
with vomiting and a urinary tract infection. Defendant Davis gave plaintiff
prescriptions for Cipro, an oral antibiotic, and Vicodin for pain. Defendant Davis
discharged plaintiff by 11:04 p.m.
Plaintiff’s expert witness, Dr. Milzman, testified that Defendant Davis “got a
lab result” but “ignored the signs and symptoms” plaintiff reported. Specifically,
plaintiff did not report “the most common thing in a urine infection,” burning while
urinating nor did she report frequent urination, urgency, or pain in her bladder. Dr.
Milzman further testified that if part of plaintiff’s issue was dehydration from
vomiting, plaintiff’s heart rate should have dropped some after receiving the IV fluid,
but it did not. Plaintiff was still in pain, and “[p]ain that bad, that’s not a urine
infection.”
Dr. Milzman opined that Defendant Davis should have kept plaintiff in the
hospital until he could get plaintiff’s heart rate under 100 and get better pain relief.
Dr. Milzman also testified that Defendant Davis needed to determine why plaintiff’s
right side was hurting so much by performing an ultrasound or a CAT scan. In
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Opinion of the Court
addition, Defendant Davis should have “done a blood count” which may have
indicated a high white blood cell count as based on the tests done, the elevated
creatinine level could indicate kidney injury. Dr. Milzman ultimately testified that
Defendant Davis failed to provide proper care by failing to “recognize the initial and
progressive severity” of plaintiff’s condition, failing “to properly evaluate changing
values in her condition, including a heart rate and her pain complaint,” failing to give
her IV antibiotics which would generally get “around faster to the body,” failing to
examine her properly on her right side pain, and failing to improve her condition
before she was discharged.
B. 24 February 2010
The next day, 24 February 2010, plaintiff returned to Pardee Hospital ER at
about 3:36 p.m.1 A nurse noted plaintiff had a urinary tract infection and
hypotension/tachycardia; hypotension is low blood pressure, and tachycardia is a high
heart rate. The nurse noted plaintiff as a priority level 2 patient, which is one level
higher than she was assigned the night before, but instead of having a physician see
plaintiff, hospital personnel sent her to the “walk-in side” of the ER where she was
seen by a physician assistant; this would indicate that they believed her condition to
1 The trial court allowed a defense motion to preclude “testimony from Ms. Ingram, the plaintiff
in this case, about her recollection of presenting to the emergency department on the morning of
February 24th[.]” (Emphasis added.) But despite this ruling, plaintiff was allowed to testify that she
had come to the ER in the morning, but was told to return “‘home and give the medication time to
work.’” There was no medical record of the visit.
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be “less emergent.” Plaintiff’s temperature was 97; her heart rate was 100, and her
blood pressure was 99/51 – “a significant drop” from the night before; her pain level
was still 10 out of 10. Mr. Ursin, a physician assistant, saw plaintiff at about 4:30
p.m. Mr. Ursin noted plaintiff’s treatment from the night before and that plaintiff
had an appointment with her doctor the next day. Plaintiff reported that she was
still nauseated and vomiting and had vomited up her medication; she also felt
dehydrated. Mr. Ursin noted plaintiff had body aches and chills.
Although it had been about an hour since plaintiff’s blood pressure had been
checked, Mr. Ursin did not recheck it nor did he note any problems from her physical
exam. Mr. Ursin ordered 500 cc of IV fluid, some morphine, Toradol for pain
(although he did not chart the pain), an IV antibiotic, and Zofran. Dr. Milzman noted
that 500 cc of fluid would not be enough to raise plaintiff’s blood pressure, giving
plaintiff morphine could cause her blood pressure to drop, and Toradol could harm
her kidneys; again, plaintiff’s creatinine levels from the night before indicated she
may have kidney injury. Mr. Ursin also ordered labs. A little more than an hour
later, plaintiff’s lab results came back showing her creatinine had gone up indicating
“her kidney function is much worse . . . . [F]or the first time we have a blood count,
and it’s low. . . . . [A] low blood count goes along with being severely infected in some
patients.”
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Opinion of the Court
About 6:00 p.m., a nurse went to check on plaintiff and could not get a blood
pressure reading and could only feel a faint pulse; her blood pressure was 60 palpable,
meaning she was in shock and did not have “enough blood pressure to adequately
perfuse the body.” Mr. Ursin directed that the remainder of the 500 cc of fluid be
administered, but he did not direct any other care or consult a physician. Defendant
Robert C. Boleman was on duty at the time.
At 6:50 p.m., plaintiff’s blood pressure was even lower, 50/25. Mr. Ursin first
consulted defendant Amy K. Ramsak, M.D. At about 7:56 p.m., defendant Boleman
first saw plaintiff. Defendant Boleman ordered more antibiotics and started
dopamine, a medication to help raise blood pressure. At this point, plaintiff started
to receive critical care. Over the next hour, plaintiff received additional medication
to raise her blood pressure, fluid, and antibiotics. At 9:01 p.m., defendant Ramsak
who had previously provided other orders by phone, ordered a lactate level; the result
was 5.6, which is “very high” and placed plaintiff at “50 percent, probably closer to 60
percent mortality at that time.” By 11:00 p.m., plaintiff was given a breathing tube
and placed on a ventilator; hospital personnel continued to work on resuscitating
plaintiff through that night and into the next morning. Plaintiff had progressed from
shock to septic shock; Dr. Milzman described this progression:
[W]e have different criteria that we use for describing an
infectious syndrome which takes into account any two of up
to seventeen combinations of heart rate and temperature
and white blood cell count and respiratory effort
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measurement. And so that’s called what we call SIRS or
systemic inflammatory response syndrome, which is
basically an infectious series of information that we use to
identify people at big risk. So you can have an infection.
We talked about sepsis, when now the infection has
created changes in the body’s response. So not just a sore
throat, a strep throat, but a -- maybe high fever and high
heart rate, that will get you sepsis. . . .
....
. . . So if you want to think of it as a spectrum . . . . there’s
regular infection and then what we calls SIRS, which is
systemic inflammatory response syndrome. And then
there’s sepsis, a source of infection plus these criteria. So
that’s sepsis.
And then there’s severe sepsis which is you have the
infection with all of these markers, plus the body is starting
to fail. Either one or two organ systems start to fail. Like
the kidneys start to fail. Like with Ms. Ingram,
unfortunately. I told you her creatinine, which is a marker
for kidney injury, is starting to go up. Later on she has
trouble breathing, can’t breathe on her own. They have to
put a breathing tube in, put her on a ventilator which
happens at 11:00 p.m. that night. So the body -- different
organ systems in the body, the lungs, now are starting to
fail.
....
And you go from severe sepsis with a mortality rate of
anywhere between 20 and 40, depending who you read, to
septic shock, where now you have a mortality of 50 to 70
percent.
Dr. Milzman testified that Mr. Ursin did not provide adequate care because he
did not make his supervising physician aware of plaintiff’s 60 palp blood pressure
when this was first discovered about 6:00 p.m., and he did not consult with the ICU
and ask that plaintiff be admitted. Dr. Milzman also testified that defendants had
missed the opportunities to intervene the night before or much earlier on 24 February
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Opinion of the Court
after plaintiff returned to the ER. “[I]f you can intervene and prevent the patient
from going into shock, you have a much better chance at survival.”
C. Treatment at Mission Hospital
The next day, 25 February 2010, plaintiff was transferred to another hospital,
Mission St. Joseph’s Hospital in Asheville, because she needed “dialysis to get off the
excess fluid.”2 Plaintiff was hospitalized for over a month. Upon discharge from
Mission Hospital,
[i]t was noted in the records that a tampon was left in her
at the time of catheterization and it was not immediately
discovered. She had many diagnoses including severe
systemic inflammatory response syndrome, suggestive of
overwhelming sepsis. She had extensive finger and toe
necrosis and skin sloughing with necrosis on both calves.
Her fingers were eventually surgically removed and she is
to have her toes removed in the near future. She was
discharged from Mission Hospital on March 29, 2010.
Plaintiff had additional medical treatment after her discharge from the hospital and
eventually lost all of her fingers and both legs below the knee.
II. Procedural Background
Plaintiff filed a complaint against defendants in May of 2011, alleging that
each defendant was negligent in providing care and this resulted in her devastating
injuries. Defendants all filed answers, denying the substantive allegations.
Defendants also filed various motions, but for purposes of this appeal, we will not
2 Plaintiff did not bring any claims against Mission Hospital.
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discuss them all. In March of 2013, defendant Pardee Hospital moved to dismiss
“[p]laintiff’s complaint to the extent the complaint alleges or asserts that said
Defendant is liable for the negligence of any health care provider except for
Defendants Ryan Christopher Davis, M.D. and Robert C. Boleman, M.D., the health
care providers that Plaintiff’s 9(j) expert identified as being negligent.” In October
of 2014, the trial court allowed the motion and dismissed plaintiff’s claims against
defendant Pardee Hospital “to the extent the Complaint asserts a claim for negligence
based upon the theory that the nursing staff of Defendant County Hospital
Corporation, Inc., d/b/a/ Margaret R. Pardee Memorial Hospital failed to comply with
the applicable standard of care.”
The jury was impaneled on 29 January 2016, and the jury entered its verdict
on 23 February 2016. The jury ultimately determined plaintiff had not been “injured
by the negligence” of any defendant. In February of 2016, the trial court entered
judgment determining plaintiff should “recover nothing” and her action was
dismissed with prejudice. Plaintiff appeals both the October 2014 order and the
February 2016 judgment.
III. Medical Malpractice Claims
In Smith v. Whitmer, this Court summarized the elements of a medical
malpractice claim and how the plaintiff must prove those elements:
In a medical malpractice claim, a plaintiff must
show (1) the applicable standard of care; (2) a breach of
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Opinion of the Court
such standard of care by the defendant; (3) the injuries
suffered by the plaintiff were proximately caused by such
breach; and (4) the damages resulting to the plaintiff.
Section 90–21.12 of the North Carolina General Statutes
prescribes the appropriate standard of care in a medical
malpractice action:
In any action for damages for personal injury
or death arising out of the furnishing or the
failure to furnish professional services in the
performance of medical, dental, or other
health care, the defendant shall not be liable
for the payment of damages unless the trier of
the facts is satisfied by the greater weight of
the evidence that the care of such health care
provider was not in accordance 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 at the time of the
alleged act giving rise to the cause of action.
Because questions regarding the standard of care for
health care professionals ordinarily require highly
specialized knowledge, the plaintiff must establish the
relevant standard of care through expert testimony.
Further, the standard of care must be established by other
practitioners in the particular field of practice of the
defendant health care provider or by other expert
witnesses equally familiar and competent to testify as to
that limited field of practice.
Although it is not necessary for the witness
testifying as to the standard of care to have actually
practiced in the same community as the defendant, the
witness must demonstrate that he is familiar with the
standard of care in the community where the injury
occurred, or the standard of care of similar communities.
The same or similar community requirement was
specifically adopted to avoid the imposition of a national or
regional standard of care for health care providers.
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159 N.C. App. 192, 195–96, 582 S.E.2d 669, 671–72 (2003) (citations and quotation
marks omitted).
IV. Admission of Clinical Studies
Plaintiff first contends the trial court erred in allowing admission “into
evidence, through defense questioning, of testimony by experts regarding three
studies published four to five years after the events giving rise to plaintiff’s claims[.]”
(Original in all caps.)3 Plaintiff contends the three studies “erroneously addressed
the standard of care[,]” “the patients in the study were not comparable to plaintiff[,]”
“the outcomes in the studies were irrelevant[,]” “the purpose of the studies was
irrelevant[,]” and “the probative value of the testimony was substantially outweighed
by its prejudicial effect[.]” (Original in all caps.)
A. Preservation of Objection
3 Evidence about the three studies came before the jury through testimony, and thus plaintiff
is not challenging the admission of the three studies themselves but rather the testimony regarding
them. But the trial court considered the three studies themselves for purposes of ruling on plaintiff’s
evidentiary objections, so we will consider this issue based upon the same information.
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Opinion of the Court
Defendants contend plaintiff failed to preserve her objection to the admission
of evidence regarding the three studies -- ProCESS,4 ProMISE,5 and ARISE6
(collectively “three studies”) -- and has waived review on appeal because plaintiff also
presented evidence related to the three studies on direct examination in questioning
her own expert witness. Defendants agree they first mentioned and introduced
evidence regarding the studies and also that plaintiff made a continuing objection
which the trial court allowed. But defendants argue that despite the valid continuing
objection, plaintiff later waived that objection when her counsel asked questions
regarding the studies on direct examination. According to defendants’ argument,
plaintiff could not ask questions on direct examination regarding the three studies
without waiving her objection.
Although defendants’ argument focuses on a few lines of the transcript, we
have reviewed all of the relevant testimony and full context of plaintiff’s questioning
regarding the three studies. Once the trial court had allowed the evidence regarding
4 The ProCESS Investigators, A Randomized Trial of Protocol-Based Care for Early Septic
Shock, The New England Journal of Medicine 370;18, p. 1683, May 1, 2014 (“ProCESS”).
5 Paul R. Mouncey, M.Sc., Tiffany M. Osborn, M.D., G. Sarah Power, M.Sc., David A. Harrison,
Ph.D., M. Zia Sadique, Ph.D., Richard D. Grieve, Ph.D., Rahi Jahan, B.A., Sheila E. Harvey, Ph.D.,
Derek Bell, M.D., Julian F. Bion, M.D., Timothy J. Coats, M.D., Mervyn Singer, M.D., J. Duncan
Young, D.M., and Kathryn M. Rowan, Ph.D. for the ProMISE Trial Investigators, Trial of Early, Goal-
Directed Resuscitation for Septic Shock, The New England Journal of Medicine, March 17, 2015
(“ProMISE”).
6 The ARISE Investigators and the ANZICS Clinical Trials Group, Goal-Directed Resuscitation
for Patients with Early Septic Shock, The New England Journal of Medicine, October 9, 2014
(“ARISE”).
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the three studies over plaintiff’s objection, she was not required to avoid mention of
the studies but was permitted to attempt to limit or avoid any prejudice from the
evidence without losing the benefit of the continuing objection:
The well established rule that when incompetent evidence
is admitted over objection, but the same evidence has
theretofore or thereafter been admitted without objection,
the benefit of the objection is ordinarily lost, but, as stated
by Brogden, J., in Shelton v. Southern R. Co., 193 N.C. 670,
139 S.E. 232, 235: The rule does not mean that the adverse
party may not, on cross-examination, explain the evidence
or destroy its probative value, or even contradict it with
other evidence upon peril of losing the benefit of his
exception.
State v. Godwin, 224 N.C. 846, 847–48, 32 S.E.2d 609, 610 (1945) (emphasis added)
(quotation marks omitted).
Plaintiff’s questioning regarding the three studies pointed out their limitations
and differences and were intended to demonstrate her contention that they were not
relevant to her case. Since the trial court allowed the evidence over her objection,
plaintiff could attempt to “contradict” the studies with her witnesses’ testimonies.
See id. Because plaintiff properly preserved her continuing objection, her later
questioning on direct examination of her witnesses regarding the three studies did
not waive her objection.
B. EGDT and the Three Studies
During the trial, several medical studies were discussed. Plaintiff contended
that she should have received early goal-directed treatment (“EGDT”) and
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Opinion of the Court
defendants countered with other studies. The EGDT protocol was described in an
article published in 2001 in which Dr. Emanuel Rivers was the principal investigator
(“Rivers study”).7 Dr. Rivers compared the outcomes in two groups of patients
presenting with sepsis; this trial was done at a single hospital and enrolled 263
patients.8 Rivers study at 1368. The control group was the “standard-therapy
group” which was “treated at the clinicians’ discretion according to a protocol for
hemodynamic support . . . with critical-care consultation, and were admitted for
inpatient care as soon as possible.” Id. at 1370 (footnote omitted). The other group
received the EGDT protocol. See id.
One of plaintiff’s expert witnesses,9 Dr. Daniel Snider, explained EGDT and
the results of the Rivers study in his testimony. All of the patients presented with
sepsis, and one group received the EGDT protocol -- “from the beginning, starts IV
fluid, starts antibiotics, aggressive IV fluids” -- and the other group received the
7Emanuel Rivers, M.D., M.P.H., Bryant Nguyen, M.D., Suzanne Havstad, M.A., Julie Ressler,
B.S., Alexandria Muzzin, B.S., Bernhard Knoblich, M.D., Edward Peterson, Ph.D., and Michael
Tomlanovich, M.D. for the Early Goal-Directed Therapy Collaborative Group, Early Goal-Directed
Therapy in the Treatment of Severe Sepsis and Septic Shock, The New England Journal of Medicine,
345;19, p. 1368, November 8, 2001 (“Rivers study”).
8
“Twenty-seven patients did not complete the initial six-hour study period (14 assigned to the
standard therapy and 13 assigned to early goal-directed therapy)[.]” Rivers study at 1371.
9 The trial court allowed Dr. Snider “to testify as an expert in these fields” and seemed to be
referring to the fields of internal medicine and emergency medicine. But the trial court went on to
state, “[h]owever, in regard to the standard of care, I will not allow him to testify to the standard of
care in regard to the emergency room physicians or emergency department physicians, except to the
extent that they had some duty to report to someone else when certain symptoms or certain things
were observed in regard to the plaintiff.” Plaintiff contests this determination by the trial court, and
we address that issue in a later section.
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“standard therapy” at that time. Dr. Snider testified that Dr. Rivers
found that the patients that he had enrolled in his protocol
which I called Early -- he identified them as soon as he saw
SIRS, which is basically vital signs and a white blood cell
count if he needs it -- Goal-Directed -- he had these goals,
he wanted to get fluids in the patient a fast as he could.
That was a goal. He wanted to maintain a blood pressure
with pressors, dopamine or Levophed which is a brand
name for norepinephrine which is a precursor to
adrenaline. Probably more than you need know. Goal-
Directed, by trying to achieve these goals, good blood
pressure, good fluid resuscitation, antibiotics, those are all
worthy goals in a septic patient -- Therapy. So that’s EGDT
that we’ve been hearing over and over.
What did he find in the treatment of the early goal-
directed therapy? He found that in six hours they had a
lower heart rate, they had a higher blood pressure. That’s
significant. Blood pressure is where it’s at. You want that
blood pressure high. Because a low blood pressure, shock
in the worst case, means you are not getting oxygen to the
tissue, the tissue is dying, your lactate acid is going up,
your kidneys are failing, your brain is starting to shut
down, you’re becoming lethargic or worse, comatose, your
breathing is not functioning, you have to go on a ventilator.
All bad things. But he found that the blood pressure was
coming up at six hours in the treatment group that got the
goal-directed therapy, early goal-directed therapy.
So what else did he find? Well, ultimately following
these patients out further he found that 46 percent
survived from septic shock versus 30 percent in the
treatment arm that did not get early goal-directed therapy.
46 percent versus 30. That’s for every seven patients that
would have died, one of those patients actually survived,
they got to go home and with be their family. So it was a
big deal saving one life that you would have lost out of
every seven.
So what happened next? Well, this was published in
the New England Journal of Medicine. It’s pretty
prestigious, no matter what you’ve heard. I've certainly
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never been published in the New England Journal, and I
would love to be. It’s – the world took notice. Okay? In 2004
an international committee made up of doctors from all
over the world, Germany, Latin America, Japan, United
States of course, of all kinds of doctors, critical care doctors,
emergency medicine doctors, surgeons, infectious disease
doctors, all of these committees and doctors and countries
got together and they came up with guidelines, much of
what was based on Dr. Rivers’ studies, Guidelines For the
Treatment of Sepsis. And it was published in, I'm sure – I’m
quite confident, more than one journal because it was just
so far-reaching.
And those guidelines recommended certain things.
They recommended rapid fluids. They recommended
antibiotics. They recommended all of this within six hours.
They even recommended things that -- that Dr. Rivers had
found would be helpful but have since found to be maybe
not as helpful as he thought. But they recommended that
in 2004. And by 2010 those were still the guidelines
internationally.
The Rivers study noted that its “primary efficacy end point” was “[i]n-hospital
mortality[,]” and secondary end points were “resuscitation end points, organ-
dysfunction scores, coagulation-related variables, administered treatments, and the
consumption of health care resources.” Id. at 1370. The Rivers study concluded that
EGDT
provided at the earliest stages of severe sepsis and septic
shock, though accounting for only a brief period in
comparison with the overall hospital stay, has significant
short-term and long-term benefits. These benefits arise
from the early identification of patients at high risk for
cardiovascular collapse and from early therapeutic
intervention to restore a balance between oxygen delivery
and oxygen demand.
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Id. at 1376.
Defendants’ witnesses presented evidence regarding the three studies, which
plaintiff contends are not relevant. All three studies compared the EGDT protocol to
other standard treatment; all note some controversy regarding the efficacy of the
EGDT protocol. As described by the ProCESS study, the Rivers study was “[i]n a
single-center study published more than a decade ago” which involved “patients
presenting to the emergency department with severe sepsis and septic shock” which
found that
mortality was markedly lower among those who were
treated according to a 6-hour protocol of early goal-directed
therapy (EGDT), in which intravenous fluids,
vasopressors, inotropes, and blood transfusions were
adjusted to reach central hemodynamic targets, than
among those receiving usual care. We conducted a trial to
determine whether these findings were generalizable and
whether all aspects of the protocol were necessary.
ProCESS at 1683.
The ProCESS study was done from 2008 to 2013 in 31 United States emergency
departments with 1,341 patients enrolled. See id. at 1683, 1686. ProCESS considered
differences in 90 day mortality, 1-year mortality, and “the need for organ support.”
Id. at 1683, 1685. The ProCESS study ultimately concluded that “protocol-based
resuscitation of patients in whom septic shock was diagnosed in the emergency
department did not improve outcomes.” Id. at 1683.
The ProMISE trial was conducted in 56 hospitals in England from 2011 to
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2014, with 1,260 patients enrolled. ProMISE at 1, 3. ProMISE concludes that “[i]n
patients with septic shock who were identified early and received intravenous
antibiotics and adequate fluid resuscitation, hemodynamic management according to
a strict EGDT protocol did not lead to an improvement in outcome.” Id. at 1.
The ARISE study tested “the hypothesis that EGDT, as compared with usual
care, would decrease 90-day all-cause mortality among patients presenting to the
emergency department with early septic shock in diverse health care settings.”
ARISE at 2. The ARISE trial was conducted from 2008 until 2014 at 51 hospitals in
several countries, most in Australia or New Zealand, with 1,600 patients enrolled.
See id. at 1-2. The ARISE study noted,
EGDT was subsequently incorporated into the 6-
hour resuscitation bundle of the Surviving Sepsis
Campaign guidelines, and a number of nonrandomized
studies showed a survival benefit with bundle-based care
that included EGDT. Despite such successes, considerable
controversy has surrounded the role of EGDT in the
treatment of patients with severe sepsis. Concerns have
included the potential risks associated with individual
elements of the protocol, uncertainty about the external
validity of the original trial, and the infrastructure and
resource requirements for implementing EGDT.
Id. at 2 (footnotes omitted). ARISE concluded that “the results of our trial show that
EGDT, as compared with usual resuscitation practice, did not decrease mortality
among patients presenting to the emergency department with early septic shock.” Id.
at 10.
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Opinion of the Court
As noted in the summary of plaintiff’s care, her evidence showed first that her
diagnosis of sepsis was delayed, and second, she did not receive EGDT. Generally,
plaintiff’s evidence showed that her condition was not correctly diagnosed on 23
February, her diagnosis was delayed on 24 February, and her initial treatment on
both days she came to the hospital was much less aggressive than treatment by
EGDT. Plaintiff contended to the jury that if she had been promptly diagnosed with
sepsis and received EGDT, her outcome would have been improved and she would
not have suffered serious and permanent injuries, including amputations.
C. Relevance of Studies and Prejudicial Effect
Plaintiff argues that the three studies are not relevant for several reasons.
Plaintiff contends that the three studies “erroneously addressed the standard of care”
and considered “mortality, not morbidity.” Plaintiff also argues that the purposes
and outcomes of the three studies were not relevant because the study patients were
not similar to or in the same circumstances as plaintiff. Plaintiff’s fifth argument is
that even if the studies are relevant “the probative value of the testimony was
substantially outweighed by its prejudicial effect[.]”
[Under Rule 401 e]vidence is relevant if it has any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence. . . . Although the trial court’s rulings on
relevancy technically are not discretionary and therefore
are not reviewed under the abuse of discretion standard
applicable to Rule 403, such rulings are given great
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Opinion of the Court
deference on appeal. Because the trial court is better
situated to evaluate whether a particular piece of evidence
tends to make the existence of a fact of consequence more
or less probable, the appropriate standard of review for a
trial court’s ruling on relevancy pursuant to Rule 401 is not
as deferential as the abuse of discretion standard which
applies to rulings made pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and
quotation marks omitted).
1. Timing of the Three Studies
The primary basis for plaintiff’s objection, as noted in her motion in limine and
during argument of the motions, was her contention the three studies are not relevant
to the issues in dispute because they were published in 2014 and 2015 and could not
have been a consideration in determining the standard of care for treatment of sepsis
in 2010. In other words, plaintiff contends the three studies are not relevant to the
issues in dispute because they were published after her hospitalization:
These studies that they are talking about came up
in 2014, four years after Ms. Ingram had lost her fingers
and her legs and her feet. And what they are trying to do -
- we have a motion to prevent them from bringing this
study in, because it doesn’t inform anything about what
happened to Ms. Ingram in 2010. And essentially what
they are trying [to] do is to change in 2014 the standard of
care in 2010. That’s what these studies are about.10
10 In addition, plaintiff contended that even if they were relevant to some extent, they were
unfairly prejudicial due to the risk of misleading or confusing the jury as to the standard of care in
2010; we will address this contention below in this opinion.
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In this part of plaintiff’s argument on why evidence regarding the three studies
should not have been admitted plaintiff also contends
[t]o the extent that the studies addressed the standard of
care, either directly or indirectly, they were grossly
misleading to the jury in that they suggested that the
standard of care at the time the studies were published was
the same as the standard of care in 2010 when Ms. Ingram
was injured. . . . [T]he studies purport to address the issue
of causation, by implication the studies address the
standard of care by concluding that Early Goal Directed
Therapy (EGDT), an element of the standard of care
according to Plaintiff’s experts, would have been of no
benefit to . . . [plaintiff]. . . . In short, Defendants were
saying by these studies that the standard of care didn’t
matter because Ms. Ingram would have had the same
outcome if the standard of care had been followed.
Plaintiff is correct: “Defendants were saying by these studies that the standard
of care didn’t matter because Ms. Ingram would have had the same outcome if the
standard of care had been followed.” (Emphasis added). In other words, the three
studies are relevant to show lack of causation no matter the timing, because they
tend to show that the results from EGDT and “standard treatment” are about the
same. See generally ProCESS, PROMISE, ARISE. The three studies have a
“tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” Dunn, 162 N.C. App. at 266, 591 S.E.2d at 17. This argument is
overruled.
2. Mortality versus Morbidity
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Opinion of the Court
Plaintiff next contends that the three studies were irrelevant because they
were comparing “mortality, not morbidity.” This assertion is simply not borne out by
the three studies. Plaintiff argues “the studies shed no light on what likely would
have happened to her if she had been diagnosed earlier and treated accordingly.”
Plaintiff’s own expert testified that the three studies did not find any difference in
mortality or morbidity between EGDT as compared to “another protocol[.]” Even
though the primary focus of the studies may have been on mortality, all of the studies
address both mortality and morbidity to some extent, as a consideration of morbidity
is only even possible if patients survive and thus necessitates some consideration of
mortality. This argument is overruled.
3. Comparability of Patients in Studies
Plaintiff next argues “[t]he outcomes of the patients in the three studies offered
by Defendants have no application to . . . [plaintiff] because the patients included in
the studies were not comparable to” her. Plaintiff points out that
[t]he health status of the patients varied from patient to
patient and included a variety of patients, some of whom
were older than Ms. Ingram, more advanced in sepsis than
Ms. Ingram, younger than Ms. Ingram, and sicker than Ms.
Ingram. There were no patients referenced in the studies
who had come to the hospital under circumstances like Ms.
Ingram[.]
It is probably true that no patient in any of the studies was exactly like plaintiff, but
no two patients in any studies are exactly alike. According to plaintiff, the lack of
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Opinion of the Court
almost identical patients would make all medical studies of no use in determining
how to best treat other patients. Plaintiff’s contentions regarding the characteristics
of the patients enrolled in each study do not change the relevance of the three studies
but go only to the weight and credibility of the evidence. Every patient in each study
was unique but the physicians conducting the studies determined that the patients
met the enrollment criteria of the particular study. Naturally, there were differences
in the design, endpoints, methodology, and enrollment criteria for each study. The
expert witnesses addressed these details on both direct examination and cross
examination. This argument is without merit.
4. Prejudicial Effect
Last, plaintiff argues that even if the three studies had some relevance, the
trial court should have excluded them under Rule 403 because they are misleading
and unfairly prejudicial to plaintiff. Under Rule 403, “[a]lthough relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.
Gen. Stat. § 8C-1, Rule 403 (2015).
In general, the exclusion of evidence under the Rule 403
balancing test is within the sound discretion of the trial
court. Abuse of discretion occurs where the court’s ruling is
manifestly unsupported by reason or is so arbitrary it could
not have been the result of a reasoned decision.
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Opinion of the Court
State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1993) (citations omitted).
Plaintiff argues the three studies were “dangerously misleading” because they
have the “initial appearance of . . . addressing septic shock, which . . . [plaintiff]
ultimately developed.” Again, plaintiff’s argument of unfair prejudice is premised
upon the fact that the patients in the three studies were not “comparable to” plaintiff:
There is nothing in the studies to suggest that any of the
patients were Ms. Ingram’s age, had a similar or
comparable medical history, were otherwise healthy upon
their presentation to the hospital or were turned away from
the hospital at the earliest stages of sepsis and returned to
the hospital on two additional occasions before any therapy
was started.
Plaintiff’s focus on the characteristics and circumstances of each patient in a
medical trial is misguided. Again, by plaintiff’s standard, there would be no medical
study possible which could be admissible in a medical malpractice case; even the
Rivers study cannot meet this standard. Some studies may have patients who more
closely resemble plaintiff or some may have more differences, but the expert medical
testimony is necessary to evaluate the strengths and weaknesses of each study and
determine which studies are most applicable for a particular situation. The evidence
here shows that the primary goal of each of the three studies was to determine the
efficacy of the protocol for EGDT -- the very protocol plaintiff advocated as the
standard of care for her treatment -- the three studies were relevant for this purpose,
and again, plaintiff’s arguments go to the weight and credibility of the three studies,
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Opinion of the Court
not unfair prejudice. The trial court did not abuse its discretion in ruling that the
probative value of the three studies was not “outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury[.]” N.C. Gen. Stat. § 8C-1,
Rule 403.
In addition, based upon plaintiff’s objection to use of the three studies to
establish a standard of care, the trial court gave a limiting instruction as to the three
studies: “Any medical literature published after February 23rd, 2010, cannot be
considered for the purpose of establishing standard of care in this case. However, it
may be used for other purposes in this case.” Plaintiff argues this limiting instruction
was not sufficient, since “advising the jury not to consider the studies on the issue of
the standard of care, it is unrealistic to assume that jurors, in a complex case as this
one was, would be able to appropriately apply the limitation.” But we do not assume
the jury failed to follow the instructions, despite the complexity of the case: “A jury
is presumed to follow the court’s instructions, and we must therefore presume that
the jury based its verdict on these instructions.” Ridley v. Wendel, ___ N.C. App. ___,
___, 795 S.E.2d 807, 813–14 (2016) (citation, quotation marks, and brackets omitted).
This is argument is overruled.
V. Preclusion of Dr. Snider’s Testimony Regarding Standard of Care
Plaintiff next contends that
the trial court erred in precluding plaintiff’s expert, Dr.
Daniel Snider, from testifying regarding the applicable
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Opinion of the Court
standard of care for defendant emergency room physicians
and physician assistant when plaintiff’s expert was
engaged in a similar practice which included patients with
the same illnesses as plaintiff and the same treatment
modalities and procedures as those applied to plaintiff and
which gave rise to plaintiff’s injuries.
We review the trial court’s ruling excluding Dr. Snider’s testimony as to
standard of care for abuse of discretion:
Rule 702 of the North Carolina Rules of Evidence governs
the admissibility of expert testimony. It states:
If scientific, technical or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a
fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion.
Our courts construe this Rule to admit expert testimony
when it will assist the factfinder in drawing certain
inferences from facts, and the expert is better qualified
than the factfinder to draw such inferences. A trial court
is afforded wide latitude in applying Rule 702 and will be
reversed only for an abuse of discretion.
In re Hayden, 96 N.C. App. 77, 82, 384 S.E.2d 558, 561 (1989) (citations, quotation
marks, ellipses, and brackets omitted).
We have reviewed the testimony at trial at length. Even if the trial court erred
by precluding a portion of Dr. Snider’s expert testimony, plaintiff cannot demonstrate
prejudice since ultimately Dr. Snider testified regarding his opinion of how plaintiff
should have been tested when she arrived at the emergency department and of the
diagnosis suggested by her symptoms:
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Opinion of the Court
Q. Dr. Snider, given the presentation, including the
complaints and findings of Ms. Ingram’s condition on the
night of February 23rd when she was at the emergency
department at Pardee, what were those signs, symptoms
indicative of in your opinion?
MR. CURRIDEN: Objection, Your Honor.
THE COURT: Overruled.
A. In my opinion I think she was presenting with early
sepsis. And the only tests that we don’t have to back that up
is a complete blood count, a very simple test. A test that I
want to know the results of when I see somebody with
abdominal cramps, vomiting, generalized pain 10 of 10,
shortness of breath, body aches. I mean, that’s – that’s a
constitutional whole body response, not something
localized like a urinary tract infection, a simple urinary
tract infection.
The only way -- well, let me rephrase that. One of
the easiest ways to determine if this is much more serious
than what we see on the record here is to get a CBC, a blood
count. I would imagine everybody on the jury has had a
blood count at some point in their life.
MR. CURRIDEN: Objection. Motion to strike, Your
Honor.
THE COURT: Overruled. The motion is denied.
A. It provides basic information including a white blood
cell count, which I mentioned is the body’s way of fighting
off infection. When you have infection, especially an
infection that goes systemic, your white blood cell count
would absolutely be expected to go up.
Q. Now – I’m sorry, go ahead. Finish your answer then
I have another question for you.
A. We don’t have a white count, a simple test. In my
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Opinion of the Court
opinion if we had had a white count that night, it would
have demonstrated findings very suggestive or conclusive
for sepsis much like the white count the following day did.
And that would have cleared the air very quickly.
This was not a simple UTI, and she needed to be
admitted for IV antibiotics, IV fluids. If this had been done,
I have to say in my opinion it would have overwhelmingly
changed the outcome here. Way more than likely than not,
to use a legal term, Ms. Ingram would not have lost her
fingers, not have lost her toes. I doubt much of what took
place the following day would have ever happened if she
had been admitted that night, received IV antibiotics and
more aggressive IV fluid resuscitation. That was a crucial
point in this whole course of events for Tokisha Ingram. Not
getting a CBC that night changed the course of history for
her.
(Emphasis added.) Plaintiff cannot demonstrate that excluding testimony by Dr.
Snider regarding the standard of care as to diagnosis of sepsis caused her any
prejudice, considering the evidence permitted by the trial court. Furthermore,
plaintiff’s other expert witnesses also testified regarding the standard of care. This
argument is overruled.
VI. Rule 9(j) Dismissal of Nursing Care Claim
Plaintiff’s complaint alleged negligence by hospital nursing staff for failing “to
correctly triage” plaintiff and failing “to recognize the severity of . . . [plaintiff’s]
condition.” The complaint also alleged that “[t]he medical care in this case has been
reviewed by persons who are reasonably expected to qualify as expert witnesses
under Rule 702 of the Rules of Evidence and who are willing to testify that the
defendants’ care did not comply with applicable standards of care.” In Rule 9(j)
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Opinion of the Court
discovery responses, plaintiff identified Dr. Sixsmith as her “reviewing expert[,]”
although the response did not specifically identify nursing care.
In March of 2014, defendant Pardee Hospital moved to dismiss plaintiff’s claim
regarding nursing care because plaintiff’s expert witness on this issue, Dr. Diane
Sixsmith, testified in her deposition she did not believe that the nursing care fell
below the applicable standard of care. The trial court entered an order on 10 October
2014 dismissing plaintiff’s claims against defendant Pardee Hospital “to the extent
the Complaint asserts a claim for negligence based upon the theory that the nursing
staff of Defendant County Hospital Corporation, Inc., d/b/a/ Margaret R. Pardee
Memorial Hospital failed to comply with the applicable standard of care.”
Plaintiff contends that the trial court erred by
dismissing under Rule 9(j) the plaintiff’s claim of
negligence against the Hospital involving nursing care
when a qualified expert reviewed the medical care
pursuant to Rule 9(j) and concluded that the hospital care
fell below the standard, but did not specify the particular
ways in which the care fell below the standard.
(Original in all caps.)
North Carolina General Statute § 1A-1, Rule 9(j) provides in relevant part:
Any complaint alleging medical malpractice by a health
care provider pursuant to G.S. 90-21.11(2)a. in failing to
comply with the applicable standard of care under G.S. 90-
21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical
care and all medical records pertaining to the
alleged negligence that are available to the plaintiff
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Opinion of the Court
after reasonable inquiry have been reviewed by a
person who is reasonably expected to qualify as an
expert witness under Rule 702 of the Rules of
Evidence and who is willing to testify that the
medical care did not comply with the applicable
standard of care[.]
N.C. Gen. Stat. §1A-1, Rule 9(j) (2015).
Compliance with Rule 9(j) is a question of law, which we review de novo:
A plaintiff's compliance with Rule 9(j) requirements clearly
presents a question of law to be decided by a court, not a
jury. Because it is a question of law, this Court reviews a
complaint’s compliance with Rule 9(j) de novo. When ruling
on a motion to dismiss pursuant to Rule 9(j), a court must
consider the facts relevant to Rule 9(j) and apply the law to
them. A complaint facially valid under Rule 9(j) may be
dismissed if subsequent discovery establishes that the
certification is not supported by the facts, at least to the
extent that the exercise of reasonable diligence would have
led the party to the understanding that its expectation was
unreasonable. When a trial court determines a Rule 9(j)
certification is not supported by the facts, the court must
make written findings of fact to allow a reviewing appellate
court to determine whether those findings are supported by
competent evidence, whether the conclusions of law are
supported by those findings, and, in turn, whether those
conclusions support the trial court’s ultimate
determination.
Estate of Wooden v. Hillcrest Convalescent Ctr., 222 N.C. App. 396, 403, 731 S.E.2d
500, 506 (2012) (citations, quotation marks, and brackets omitted).
The trial court’s October 2014 order includes detailed findings of fact regarding
plaintiff’s negligence claims arising from nursing care, plaintiff’s responses to
discovery on this issue, and Dr. Sixsmith’s deposition testimony; plaintiff’s brief
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Opinion of the Court
challenges none of these findings of fact as unsupported by competent evidence, so
they are binding upon this Court. See In re C.B., ___ N.C. App. ___, ___, 783 S.E.2d
206, 208 (2016) (“Unchallenged findings are binding on appeal.”)
Plaintiff argues her complaint complied with Rule 9(j) because
[t]here is no question in this case that the Complaint
specifically asserts that the medical care at issue in this
case was reviewed by a person who was reasonably
expected to qualify as an expert witness under Rule 702 of
the Rules of Evidence and who was willing to testify that
the medical care did not comply with the applicable
standard of care.
Plaintiff contends that she reasonably expected Dr. Sixsmith, her identified expert,
to testify regarding nursing care. The trial court’s findings of fact quoted Dr.
Sixsmith’s deposition where she stated that she had not believed nor would she testify
that the nursing care provided by defendant Pardee Hospital fell below the standard
of care. “[I]t is also now well established that even when a complaint facially complies
with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery
subsequently establishes that the statement is not supported by the facts, then
dismissal is likewise appropriate.” Ford v. McCain, 192 N.C. App. 667, 672, 666
S.E.2d 153, 157 (2008).
Plaintiff further contends that even if Dr. Sixsmith was unwilling to testify
Dr. David Milzman, Dr. Daniel Abbott and Dr. Daniel
Snider were all willing to testify at trial that the nursing
care fell below standard. Their willingness to testify was
brought to the attention of the trial court before the trial
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Opinion of the Court
court dismissed the action against Defendant Pardee as to
nursing care. The particulars of the criticisms held by each
of these witnesses, all of whom testified at trial, were
contained in their respective depositions.
But plaintiff failed to identify Dr. Milzman, Dr. Abbott, and Dr. Snider as experts
who would offer opinions regarding nursing care in response to discovery. In
addition, plaintiff has failed to direct us to any place in the 678 page record, five
depositions, or 2,930 pages of trial transcript where we might find verification of
plaintiff’s assertion that other experts were identified regarding nursing care before
the trial court’s May 2014 hearing on this issue to testify regarding nursing care;
plaintiff’s argument section on this issue contains no specific reference to the evidence
before us. Therefore, the trial court’s unchallenged findings of fact support its
conclusion of law that plaintiff’s “claim for negligence based upon the theory that the
nursing staff of” defendant Pardee Hospital did not comply with Rule 9(j) and should
therefore be dismissed. This argument is overruled.
VII. Exclusion of Evidence of Morning Visit to the Hospital
Last, plaintiff argues that the trial court erred in allowing defendant’s motion
in limine and thus “limiting and excluding testimony from plaintiff and plaintiff’s
witnesses regarding plaintiff’s visit to defendant Pardee Hospital on the morning of
24 February 2010.” (Original in all caps.)
We review a trial court’s rulings on motions in
limine and on the admission of evidence for an abuse of
discretion. This Court will find an abuse of discretion only
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Opinion of the Court
where a trial court’s ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the
result of a reasoned decision.
State v. Hernendez, 184 N.C. App. 344, 348, 646 S.E.2d 579, 582 (2007) (citations and
quotation marks omitted).
Defendant Pardee Hospital filed a motion in limine seeking to prevent plaintiff
from testifying about a visit to the hospital on the morning of 24 February 2010.
According to the defendant’s argument on the motion in limine11, plaintiff testified in
her deposition she returned to the hospital on the morning of 24 February 2010:
Ms. Ingram recalled in her deposition, and there’s no
allegation about this in the complaint either, but during
her deposition she said, “Well, I do remember coming to the
hospital on the morning of the 24th.” Her recollection or
best timeframe was about 10:00 o’clock or 10:30 the
morning of the 24th. And that she was basically taken
back to a treatment room and then told -- she overheard
someone say on the other side of the curtain or wall, quote,
“she is just a popper.”12 And then someone, a nurse, who
she describes as a nurse, came back into the room and told
her “you just need to go home and give the medicine time
to work.” There’s no medical records, there’s no other
evidence of any visit on the morning of the 24th.
Defendant then argued:
Ms. Ingram’s testimony is that she interacted with
the nursing staff. And as we have established in the first
motion in limine, which is that the Hospital nursing staff
11Plaintiff did not include her deposition in our record, so we will quote defendants’ counsel’s
argument on this issue.
12According to plaintiff’s brief, she understood the term “popper” “to mean that she was a pill
popper and was seeking medication and treatment.”
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as a theory of liability cannot exist in light of the Court’s
order from October 2014 dismissing the complaint, and as
plaintiff's counsel has already indicated the only issue they
intend to submit to the jury as to the Hospital’s liability is
the issue of apparent agency for Boleman, Davis, Dr.
Ramsak, and perhaps Ursin, understanding we left that
issue open. This testimony about a visit on the morning the
24th has no relevance to any claim in the case and,
therefore, should be excluded.
The trial court allowed the motion in limine, with a qualification that it may
reconsider depending upon the evidence presented during the trial:
Well, I’m going to allow that motion. But if you believe the
door was opened by that argument she wasn’t as -- the
evidence might tend to show she wasn’t as sick as she
claimed or something similar, then I will reconsider that
then. And I think I would probably allow that. Although,
most likely not the comment that was overheard about
being a popper.
At trial, plaintiff testified about her return to the hospital on the morning of
24 February 2010:
A. On the sheet it said that, at the bottom of the sheet,
I remember it said something about if you had these
symptoms to come back. And then I was feeling really bad,
so I went back that morning to the hospital.
Q. Okay. Did you get any treatment when you got back?
A. No, sir.
MR. JACKSON: Objection.
THE COURT: Overruled.
Q. What -- what happened when you went back? When
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Opinion of the Court
I say what happened, did you stay at the hospital, did you
get treatment or what? Tell us about that.
A. When I went back to the hospital and I had
conversation with, I assume, the receptionist, and what I
remember is someone, I don’t remember who it was, telling
me that I needed to give the medication time to work.
MR. JACKSON: Objection.
MR. CURRIDEN: We object.
THE COURT: Overruled.
Q. I’m sorry. There were some interruptions there.
Could you repeat that? Somebody said what?
A. That I needed to give the medication time -- that I
needed to go back home and give the medication time to
work.
MR. JACKSON: Objection.
THE COURT: Mr. Ferguson, I want to say
something to the jury.
MR. FERGUSON: Yes, sir.
The trial court then gave a limiting instruction to the jury, in accord with its ruling
on defendants’ motion in limine:
THE COURT: Members of the jury, as I said
yesterday, there’s no claim or allegation that anyone at the
Hospital did anything wrong or negligent regarding this
morning visit. Nobody, no nurse, no doctor or physician
assistant. So when you get to the point of deciding whether
negligence was committed, this has nothing to do with it.
Please go ahead, Mr. Ferguson.
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Plaintiff then resumed her testimony:
Q. So what did you do after this person told you to go
back home and give the medication time to work?
A. I went back home and laid down.
Q. How did you feel when you got back home?
A. I laid there for a little while, and I may have made
some phone calls or something. I don’t quite remember. But
after awhile I went back to the hospital. My auntie told me
that I needed to go back.
Plaintiff argues that her
testimony of the details of this visit would have shed light
on how sick the Plaintiff was and her efforts to get help as
soon as possible. The evidence would have further shown
that at the time the Hospital did not take her complaints
seriously and demonstrated a reluctance to provide help.
But the testimony plaintiff actually gave showed exactly this – “how sick” she was,
“her efforts to get help as soon as possible[,]” and “the Hospital did not take her
complaints seriously and demonstrated a reluctance to provide help.”
Furthermore, plaintiff made no proffer of additional evidence she contends the
trial court should have allowed her to present, so she has not preserved this argument
for appellate review. See generally State v. Reaves, 196 N.C. App. 683, 687, 676 S.E.2d
74, 77 (2009) (“Likewise, a party objecting to the grant of a motion in limine must
attempt to offer the evidence at trial to properly preserve the objection for appellate
review.”) The only “limitation” or “exclusion” the trial court applied to plaintiff’s
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Opinion of the Court
testimony about her return visit to the hospital on the morning of 24 February 2010
was to instruct the jury that plaintiff had no claim for medical negligence arising from
the alleged conduct of hospital staff from that morning, and, as discussed above, the
trial court properly dismissed that claim. The trial court did not abuse its discretion
by instructing the jury as to the limitation on the purpose of plaintiff’s testimony.
This argument is overruled.
VIII. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Chief Judge MCGEE and Judge MURPHY concur.
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