Preview:

IN THE SUPREME COURT OF NORTH CAROLINA
No.  387A97
FILED:  9 JULY  1998
BETTIE B. SHERROD, Administratrix of the Estate of SYLVIA BIRTH,
Deceased
v.
NASH GENERAL HOSPITAL, INC., and KENNETH C. THOMPSON, JR.
Appeal by plaintiff pursuant to N.C.G.S.  §  7A-30(2)
from the decision of a divided panel of the Court of Appeals,  126
N.C. App.  755,  487 S.E.2d  151  (1997), affirming a judgment for
defendants entered by Butterfield, J., on  7 December  1995 in
Superior Court, Nash County.    On  29 October  1997, this Court
allowed defendant Thompson’s petition for discretionary review of
an additional issue.    Heard in the Supreme Court  12 February
1998.
Leland Q. Towns for plaintiff-appellant and  -appellee.
Baker, Jenkins, Jones & Daly, P.A., by Kevin N. Lewis,
for defendant-appellant and  -appellee Thompson.
LAKE, Justice.
This is a medical malpractice case which presents two
issues for determination:    first, whether the Court of Appeals
erred in holding that plaintiff’s appeal was timely filed; and
second, whether the trial court committed prejudicial error by
ruling in the presence of the jury that defendant Thompson was
accepted by the court as an expert and would be allowed to
testify as an expert witness in the field of general psychiatry.
The Court of Appeals held that plaintiff’s appeal was




-2-
timely filed, and the majority held that the trial court did not
commit reversible error when, in the presence of the jury, it
declared defendant Thompson to be an expert witness.    This Court
allowed defendant Thompson’s petition for discretionary review as
to the notice of appeal issue, and plaintiff appeals from the
dissent below on the expert witness issue.    For the reasons
hereinafter stated, we affirm the Court of Appeals’ holding that
plaintiff’s appeal was timely filed, and we reverse as to its
conclusion on the second issue that the trial court did not
commit prejudicial error in declaring, in the presence of the
jury, the expertise of the witness.
In this case, the plaintiff brought suit on behalf of
the estate of Sylvia Birth against both Nash General Hospital,
Inc.  (NGH) and Kenneth C. Thompson, Jr.    The complaint asserted
five specific allegations of negligence against defendant
hospital and seven specific allegations of negligence against
defendant Thompson and asserted that the negligence of each
defendant was a proximate cause of the death of Sylvia Birth.
The record reflects the following evidence was before
the trial court.    On  30 August  1990, the deceased, sixty-five-
year-old Sylvia Birth, was admitted to NGH upon the
recommendation of her primary treating physician, Dr. Kenneth C.
Thompson, Jr.    Ms. Birth had stopped eating and sleeping, and her
behavior had become erratic.    Prior to her arrival at NGH, Ms.
Birth had been taking the following prescribed medications:           100
milligrams of Imipramine a day;  20 milligrams of Diazepam
(Valium) a day; and  40 milligrams of Propranolol  (Inderal) twice




-3-
daily.    After Ms. Birth’s admission at NGH, Dr. Thompson
prescribed Haldol,  5 milligrams; Ativan,  1 milligram; and
Diazepam,  5 milligrams twice a day and  10 milligrams at bedtime.
He continued her Imipramine, increasing her dosage to  150
milligrams, and increased Inderal to  80 milligrams twice a day.
Additionally, he prescribed Mellaril,  50 milligrams by mouth,
every eight hours and then as needed; Haldol,  2 milligrams; and
Ativan,  1 milligram every four hours as needed.
During Ms. Birth’s seventeen-day stay at NGH, her
physical and mental condition worsened, and she became
increasingly confused, agitated, disoriented and delusional.    Ms.
Birth was often placed in physical restraints, as she was
combative and moved continuously.    Dr. Thompson did not order
diagnostic tests or consult with any other medical specialist.
On  15 September  1990, Ms. Birth was transferred, pursuant to Dr.
Thompson’s orders, by a deputy sheriff from NGH to Cherry
Hospital in Goldsboro.    Ms. Birth died on  16 September  1990.
At trial, one of plaintiff’s expert witnesses, Dr.
Thomas Clark, testified that he performed an autopsy on Ms. Birth
and first concluded that she died from Imipramine poisoning but
later concluded that multiple drug overdoses caused her death.
Dr. Clark also testified that the manner of death was suicide
based on his opinion that the drugs in her blood were elevated
beyond what he thought she could reasonably have expected to get
from taking the drugs in the amounts that were prescribed.    Dr.
K.N. Murthy testified as an expert that he admitted Ms. Birth at
Cherry Hospital; that upon her arrival she was agitated,




-4-
uncontrolled and disoriented; and that he ordered a physical
examination and lab work and that all medications be withheld.
Several witnesses from Cherry Hospital testified for plaintiff
that while Ms. Birth was at Cherry Hospital, she did not receive
any medications other than two doses of Ativan and that she did
not bring any medications with her.    Cherry Hospital records also
indicated that Ms. Birth received no medication other than two
doses of Ativan while at the hospital.
Dr. Harold C. Morgan, an expert for plaintiff,
testified that, in his opinion, Dr. Thompson was negligent in his
treatment of Ms. Birth in that he failed to exercise reasonable
care and diligence in his care of Ms. Birth, that he failed to
comply with the standard of care required by law, and that his
negligence proximately caused Ms. Birth’s death.    Specifically,
Dr. Morgan testified that Dr. Thompson failed to conduct adequate
diagnostic work, overprescribed medication and improperly
combined the same class of medication, failed to consult with
other specialists, and failed to recognize that Ms. Birth was in
a drug-induced delirium.    Dr. Morgan also testified that it was
unreasonable for Dr. Thompson to base his diagnosis of Ms. Birth
on her past hospitalizations because Ms. Birth’s  30 August  1990
hospitalization was different from previous hospitalizations.
This testimony included the observation that in prior
hospitalizations, in contrast to her last admission, Ms. Birth
had responded quickly to medications and treatment, had shown
auditory hallucinations, and had only been on a total of two or
three different medications at lower dosages.    William T. Sawyer,




-5-
a licensed pharmacist and faculty member of UNC School of
Pharmacy, and a board-certified pharmacotherapist, testified for
plaintiff that Ms. Birth’s drug overdose was likely caused by the
accumulation of drugs administered during her stay at NGH.
Defendant NGH presented testimony tending to show that
the care rendered by NGH nurses was within the standard of care
as applied to nurses.    Defendant Thompson presented several
medical doctors who, in the presence of the jury, were tendered
and accepted by the trial court as experts, and who then
testified on behalf of defendant Thompson.    Dr. Thompson
testified extensively in his own behalf, as an expert, that his
care of Ms. Birth complied with all generally accepted standards
of care within the practice for psychiatrists, that he did not
believe she was in a drug delirium, and that there were no signs
of overmedication.    He testified that there was nothing different
about Ms. Birth’s condition on  30 August  1990 upon her admission
to NGH than in past admissions to the hospital.    Dr. Thompson
further testified that Ms. Birth ate better and took her fluids
better than previously, and that he prescribed Mellaril to Ms.
Birth despite her extreme sensitivity to this drug in the past.
Additionally, Dr. Thompson testified that although he realized on
11 September  1990 that Ms. Birth was showing no improvement and
that the medications were not helping, he did nothing different
with respect to her treatment.
On  6 December  1995, the jury answered the liability
issue in defendants’ favor, finding neither defendant negligent
in the death of the decedent.    Plaintiff, in open court, orally




-6-
moved that the verdict be set aside as contrary to the weight of
the evidence and the law and for a new trial, which the trial
court then orally denied.    In so doing, the trial court stated
that  “under the new rules I believe civil litigants have thirty
days in which to file post-trial motions and you may avail
yourself of that rule.”    The trial court entered judgment in
accordance with the jury’s verdict.    On  15 December  1995,
plaintiff filed a written motion for a new trial, pursuant to
Rule  59 of the Rules of Civil Procedure, contending that:              (1)
the jury disregarded the instructions by the trial court,  (2) the
verdict was contrary to the law and the weight of the evidence,
(3) errors of law occurring at trial denied plaintiff a fair
trial, and  (4) there was juror misconduct.    On  15 December  1995,
plaintiff also filed a motion for a new trial based on delays and
disruptions at trial.    These motions were heard before Judge
Louis B. Meyer who ruled, on  21 March  1996, that they should be
dismissed and in the alternative denied.    In denying these
motions, Judge Meyer stated:
The hearing and rulings on these motions
have absolutely nothing to do with your right
of appeal and doesn’t impede it in any way.
.  .  . I think these matters that  [are]
included in your motions concerning the
verdict being inconsistent with the evidence
and contrary to the weight, ought to be
handled on the appeal of the case.
On  27 March  1996, plaintiff filed notice of appeal from the
verdict and judgment and the denial of her post-trial motions.
On  16 April  1996, defendant Thompson, and on  18 April  1996,
defendant NGH, moved to dismiss plaintiff’s appeal for failure to




-7-
timely file notice of appeal pursuant to Rule  3 of the Rules of
Appellate Procedure.    Plaintiff made a motion pursuant to Rule
60(b)(6) of the Rules of Civil Procedure to set aside Judge
Butterfield’s ruling denying plaintiff’s oral motions.    These
motions were heard  9 September  1996 by Judge Howard E. Manning,
Jr., who denied defendants’ motions to dismiss the appeal and
allowed plaintiff’s motion.    In so doing, the trial court stated
that  “plaintiff should be relieved from Judge Butterfield’s
ruling of December  6,  1995 denying plaintiff’s oral Motion For A
New Trial and Judgment Notwithstanding the Verdict because of the
trial court’s erroneous instruction regarding plaintiff’s right
to file written post-trial motions.”
With respect to this first issue, Rule  3 of the North
Carolina Rules of Appellate Procedure provides:
Appeal from a judgment or order in a
civil action or special proceeding must be
taken within  30 days after its entry.    The
running of the time for filing and serving a
notice of appeal in a civil action or special
proceeding is tolled as to all parties  .  .  .
by a timely motion filed by any party
pursuant to the Rules of Civil Procedure
.  .  .  , and the full time for appeal
commences to run and is to be computed from
the entry of an order upon any of the
following motions:
(4) a motion under Rule  59 for a new
trial.
N.C. R. App. P.  3(c).
Defendant Thompson contends that plaintiff’s second
motion for a new trial cannot extend the thirty-day limit
specified under Rule  3 for giving notice of appeal.    We disagree.




-8-
Plaintiff’s subsequent Rule  59 motions of  15 December  1995
asserted additional, substantially different grounds for a new
trial than those asserted in her first oral motion on  6 December
1995.    Plaintiff’s first motion asserted that the verdict was
contrary to the weight of the evidence.    Her subsequent motions
asserted four additional grounds:                                      (1) that the verdict and jury
deliberations showed a manifest disregard of the instructions of
the court,  (2) that there were a number of errors of law that
occurred at trial and were objected to by the plaintiff which
denied her a fair trial,  (3) that there was jury misconduct, and
(4) that there were delays and disruptions at trial.    When a
party files a subsequent Rule  59 new-trial motion asserting
different grounds as basis for a new trial, that party should
still be entitled to application of the tolling provision of Rule
3(c).    It is clear from a reading of Rule  59(a) that the grounds
set forth there contemplate situations or circumstances which may
arise or become known after a party has made the usually
perfunctory motions for a new trial at the end of the trial.
Rule  59(b) gives a party ten days after entry of the judgment to
move for a new trial, and plaintiff here filed her subsequent
written motions within nine days.    Plaintiff thus filed  “a timely
motion  .  .  . under Rule  59 for a new trial,” pursuant to Rule
3(c), and since plaintiff is therefore entitled to the benefit of
the Rule  3(c) tolling provision, the thirty-day time period did
not commence until  21 March  1996 when Judge Meyer entered his
order ruling on these motions.      Accordingly, we hold that




-9-
plaintiff’s appeal was timely filed and affirm the Court of
Appeals on this issue.
We turn now to the second issue:    whether the trial
court committed prejudicial error when it declared in the
presence of the jury that defendant Thompson was found by the
court to be an expert in the field of general psychiatry and
would be allowed to so testify.
At the focal point of the trial  (certainly for the
defense), and following the testimony on behalf of defendant
Thompson of other medical doctors who, in the presence of the
jury, were recognized by the trial court as experts, defense
counsel called Dr. Thompson as a material witness for his own
defense.    After being questioned before the jury about his
education, experience and training, defendant Thompson was
tendered to the court as a medical expert specializing in the
field of psychiatry.    The trial court then called counsel to the
bench, and at the ensuing bench conference, the following
stipulation was placed in the record:
The parties to this action hereby agree
and stipulate that at the trial of the above-
captioned action, Ron Baker, attorney for Dr.
Kenneth C. Thompson, Jr., tendered Dr.
Kenneth C. Thompson Jr. as a duly qualified
medical expert specializing in the field of
psychiatry.    Before making a ruling, Superior
Court Judge G.K. Butterfield, Jr., held a
bench conference on whether it was proper for
the court to recognize Dr. Kenneth C.
Thompson, Jr., as a duly qualified medical
expert in the presence of the jury.    After
hearing arguments from all three attorneys,
the court concluded that it was proper to
recognize Dr. Thompson as a duly qualified
medical expert specializing in the field of
psychiatry.    Plaintiff-appellant objected to




-10-
the trial court recognizing Dr. Thompson, in
the presence of the jury, as a duly qualified
medical expert specializing in the field of
psychiatry and excepted to the ruling.
In the presence of the jury, the trial court then declared,  “I
find that the witness is an expert in the field of general
psychiatry.    He will be permitted to testify as to such matters
touching upon his expertise.”
The precise issue here presented has been determined by
this Court in Galloway v. Lawrence,  266 N.C.  245,  145 S.E.2d  861
(1966).    There, this Court held that in a medical malpractice
case where a defendant medical doctor is testifying in his own
defense, it is prejudicial error for the trial court to make a
statement finding, in the presence of the jury, that such
defendant  “is a medical expert.”    Id. at  250,  145 S.E.2d at  866.
This Court stated in Galloway:
The ruling should have been put into the
record in the absence of the jury for it was
an expression of opinion by the court with
reference to the professional qualifications
of the defendant.    It might well have
affected the jury in reaching its decision
that the child was not injured by the
negligence of the defendant.    There was no
error in permitting the defendant to testify
as an expert witness, for there was ample
evidence to support the finding of his
qualifications as such and his being a party
does not disqualify him.    The court’s finding
should not, however, have been stated in the
presence of the jury.
Id.  (citations omitted)  (emphasis added).
In so holding, this Court was applying the statutory
mandate, then set forth in N.C.G.S.  §  1-180 and now carried
forward in N.C.G.S.  §§  15A-1222,  15A-1232 and  1A-1, Rule  51, that




-11-
“a judge shall not give an opinion as to whether or not a fact is
fully or sufficiently proved.”    N.C.G.S.  §  1A-1, Rule  51(a)
(1990)  (emphasis added).    In this regard, this Court in Galloway
quoted from Upchurch v. Hudson Funeral Home Inc.,  263 N.C.  560,
140 S.E.2d  17  (1965), as follows:
“The slightest intimation from the judge as
to the weight, importance or effect of the
evidence has great weight with the jury, and,
therefore, we must be careful to see that
neither party is unduly prejudiced by any
expression from the bench which is likely to
prevent a fair and impartial trial.”
Galloway,  266 N.C. at  250,  145 S.E.2d at  866  (quoting Upchurch,
263 N.C. at  567,  140 S.E.2d at  22).
In the case sub judice, the question of defendant
Thompson’s medical expertise was not simply a question of fact,
it was one of the most critical questions of fact to be decided
by the jury--one which bore directly, and with significant
impact, on the ultimate issue for the jury.    In the first of
seven specific allegations of negligence, the complaint in this
case states that defendant Thompson  “(a) failed to possess the
degree of professional learning, skill and ability which others
similarly situated ordinarily possessed.”                              (Emphasis added.)
Thus, defendant Thompson’s level or degree of competence was
directly at issue.    Against this allegation by the plaintiff, the
trial court ruled and declared to the jury:                            “I find that the
witness is an expert in the field of general psychiatry.    He will
be permitted to testify as to such matters touching upon his
expertise.”                                                            (Emphasis added.)    With this ruling and introduction
to the jury by the trial court, defendant Thompson then proceeded




-12-
to testify that his treatment of Sylvia Birth fully met the
standard and was proper in all respects.
When this statement was made to the jury, the trial
court was not merely expressing or intimating an opinion as to
the facts or evidence; rather, the trial court was actually
making, additionally, a legal ruling, a conclusion of law which
the jury was duty-bound to accept.    This ruling in the instant
case was enhanced before the jury by the trial court’s calling
for a bench conference and the entry of the stipulation,
preceding the court’s pronouncement of its finding.    In this
regard, this Court stated in Galloway, as to inadvertent comments
by the trial court in the presence of the jury:
[T]hey dealt with the very questions which
the jury was called upon to decide and were
clearly prejudicial to the plaintiffs.    The
professional ability and skill of the
defendant and whether or not he visited his
patient  .  .  . are questions for the jury, not
for this Court or for the judge presiding at
the trial.    We express no opinion as to these
matters and the trial judge is forbidden to
do so by the statute.
Galloway,  266 N.C. at  251,  145 S.E.2d at  866  (emphasis added).
Accordingly, we conclude that while it was entirely
proper for the trial court to rule that defendant Thompson could
testify as an expert, with the legal parameters and privileges
incident to such ruling, it was prejudicial error for the trial
court to announce to the jury that it in fact and law found
defendant Thompson to be an expert.    Such announced ruling might
well have influenced the jury in its decision that defendant
Thompson was not negligent in the death of decedent.




-13-
The decision of the Court of Appeals is therefore
affirmed with respect to the first issue and is reversed with
regard to the second issue, and this case is remanded to the
Court of Appeals for further remand to the Superior Court, Nash
County, for a new trial.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Chief Justice MITCHELL dissenting in part and
concurring in part.
I believe that Galloway v. Lawrence,  266 N.C.  245,
145 S.E.2d  861  (1966), the precedent relied upon by the majority
in this case, reached the correct result.    With regard to the
issue of whether it was error for the trial court to qualify the
defendant-doctor as an expert medical witness in the presence of
the jury, however, I respectfully suggest that Galloway reached
an erroneous conclusion of law and then erroneously applied that
conclusion to the specific facts presented by that case.
In Galloway, the primary question of fact for the
jury was whether the defendant-doctor had gone to the hospital to
attend to his child-patient in a timely fashion.    The defendant
testified that he had, but the charge nurse at the hospital
testified that she had not seen him in the hospital at the time
in question.    In the presence of the jury, the trial court
stated:                                                              “Well, of course, now, the evidence with reference to
the doctor going to the hospital is that he went there.  .  .
There is no evidence that he did not go there  .  .  .               .”    Id. at
249,  145 S.E.2d at  865.    Additionally, in Galloway,




-14-
defendant testified as a witness in his
own behalf.    His counsel tendered him
“as a medical expert.”    Plaintiffs’
counsel stated that he did not wish to
ask the defendant any questions; that
is, he did not wish to question the
defendant’s qualifications to express
opinions as an expert witness.    The
court, in the presence of the jury,
said:                                                                   “Let the record show that the
Court finds as a fact that  [defendant]
is a medical expert, to wit:    an expert
physician in surgery.”
Id. at  250,  145 S.E.2d at  865-66.    This Court awarded plaintiffs
a new trial on the ground that both of the above-quoted
statements by the trial court
dealt with the very questions which the
jury was called upon to decide and were
clearly prejudicial to the plaintiffs.
The professional ability and skill of
the defendant and whether or not he
visited his patient following the
telephone call from the nurses are
questions for the jury, not for this
Court or for the judge presiding at the
trial.
Id. at  251,  145 S.E.2d at  866.
I believe that the Court was incorrect in stating in
Galloway that, on the facts of that case, the  “professional
ability and skill of the defendant” was a question which the jury
was called upon to decide.    The plaintiffs in Galloway raised no
issue in their pleadings or at trial with regard to the
defendant’s professional qualifications.    The only issue
presented by the plaintiffs and before the jury in Galloway was
whether the defendant exercised reasonable diligence in the
application of his professional knowledge and skill to the
particular patient’s care.    This Court’s conclusion and holding,




-15-
to the extent it was based on this reasoning, was erroneous.    For
this reason, I believe that the Court misapplied the law it
announced in Galloway to the facts of that case.    However, the
Court reached the correct result in awarding the plaintiffs a new
trial in Galloway due to the trial court’s clearly erroneous
expression of its opinion with regard to whether the doctor had
gone to the hospital and applied his knowledge and skills on
behalf of his patient, the very issue the jury was to decide.
Further, I disagree with the conclusion of law in
Galloway that a trial court’s ruling in the presence of the jury
allowing a witness to testify as an expert witness will affect a
jury in reaching its decision as to his professional
qualifications.    More to the point, I think this is particularly
unlikely in a case such as the one facing us here, where almost
all of the witnesses were declared to be medical experts by the
trial court in the presence of the jury.    First, there is
something less than completely candid about requiring a trial
court to accept a defendant as an expert witness and allow him to
give testimony as an expert but then conceal this fact from the
jury.    This is particularly troubling in a case such as the
present one in which the jury has been informed that the trial
court has declared all of the other witnesses to be experts, and
they are testifying as such.    More importantly, I believe that
the rule applied by the majority, at least on the facts of this
case, is fundamentally unfair and may deny defendant due process
and equal protection of law under the United States Constitution
and under the Law of the Land Clause of the North Carolina




-16-
Constitution.    Accordingly, I dissent from the decision of the
majority of this Court.    I would affirm the decision of the
majority in the Court of Appeals on this issue, which held that
the trial court did not err in this regard.
Recognizing, however, that the rule announced and
applied by the majority today will govern future cases, I suggest
one possible practical solution to avoid the constitutional
problem I see as possibly arising from the opinion of the
majority.    If, as the majority appears to believe, the act of the
trial court in declaring a witness an expert witness has such a
profound effect upon jurors, it seems fundamentally unfair to
allow one party to enjoy the full effects of such a powerful
statement with regard to each of its witnesses, while depriving
the other party of a similar declaration by the trial court.
Perhaps the fairest and best course for trial courts in light of
the holding of the majority would be one by which the trial
courts made their findings and rulings as to all expert witnesses
in the absence of the jury.    The witnesses could still state
their qualifications before the jury and give expert testimony,
but the jury would not be told that any of them were found by the
court to be experts.    In short, it seems to me that the only
fundamentally fair procedure would be to apply the same rule to
experts for both parties.    The sauce to be used on the goose
should also be used on the gander.
I concur only in that part of the decision of the
majority concluding that plaintiff’s appeal was timely filed and
affirming the Court of Appeals on this issue.




-17-
Justice ORR joins in this dissenting and concurring
opinion.

Download 387a97-9.pdf

South Carolina Law