Brown v. Flowe

• Decision Date: 03 March 1998
• Docket Number: No. COA97-611,COA97-611
• Citation: 496 S.E.2d 830,128 N.C.App. 668
• Court: North Carolina Court of Appeals
• Parties: Vickie Ann BROWN, Administratrix of the Estate for Mary Louise Brown, Plaintiff-Appellee, v. Kenneth Michael FLOWE, M.D., Defendant-Appellant.

Page 830

496 S.E.2d 830

128 N.C.App. 668

Vickie Ann BROWN, Administratrix of the Estate for Mary Louise Brown, Plaintiff-Appellee, v. Kenneth Michael FLOWE, M.D., Defendant-Appellant.

No. COA97-611.

Court of Appeals of North Carolina.

March 3, 1998.

Faison & Gillespie by O. William Faison and John W. Jensen, Durham, for plaintiff-appellee.

Walker, Barwick, Clark & Allen, L.L.P. by Thomas E. Barwick, Goldsboro, for defendant-appellant.

WALKER, Judge.

This appeal arises from a medical malpractice action brought by plaintiff, administratrix of the estate for Mary Louise Brown (decedent), on 15 July 1994 against defendant Dr. Kenneth Michael Flowe. At all relevant times, defendant was employed as an instructor with the East Carolina University School of Medicine (School of Medicine). Further, the School of Medicine has an agreement with Pitt County Memorial Hospital (the Hospital) whereby the Hospital is utilized as the primary teaching hospital of the School of Medicine in the training and education of its medical students.

In her complaint, plaintiff alleges that on 29 July 1993 decedent was brought to the Hospital's emergency room complaining of upper abdominal pain, nausea and vomiting. She was diagnosed by defendant as suffering from acute gallbladder disease, and admitted under his care for surgery to remove her gallbladder.

On 3 August 1994 decedent was prepared for a laparascopic cholecystectomy, whereby her gallbladder would be surgically removed by the use of a laparoscope. This procedure requires two or more physicians to perform the various steps. Defendant was the attending physician during this surgery, and he selected Dr. Susan Pabst (Dr. Pabst), a fourth-year surgical resident, to assist him.

A laparascopic cholecystectomy involves the use of two instruments known as a trocar and a cannula. The trocar is a surgically sharp spike used to pierce the abdomen, and once entry is gained it is withdrawn. The cannula is a sealed metal tube in which the trocar is initially encased, and through which the laparoscope and other surgical instruments can be inserted once the trocar is removed.

The defendant's testimony at trial tended to show that after the initial incision was made near the center of the decedent's abdominal wall, the laparoscope was inserted into a cannula so that the procedure could be viewed from inside the abdomen. Next, a trocar was inserted into the upper left abdominal region by Dr. Pabst. As she was inserting this trocar, Dr. Pabst told defendant that she was encountering some resistance, and defendant advised her to use slow, steady pressure. As Dr. Pabst began to apply this pressure, the trocar slipped and pierced decedent's liver, producing a small amount of blood on the tissues below the liver. After vacuuming the visible blood and inspecting the areas around the liver for any reaccumulation of blood or the swelling or distension of any surrounding tissues, defendant continued the surgery by placing another trocar in the upper right abdominal region.

Within one to two minutes after the initial piercing of the liver, defendant was advised by the anesthesiologist that decedent's blood pressure had dropped drastically, from around 150 systolic to 50 systolic. Initially, defendant concluded that, given decedent's age and previous heart problems, the drop could have been attributable to cardiogenic shock. While the anesthesiologist was attempting to resuscitate the decedent and determine whether the drop was attributable to a heart condition, defendant left the operating room briefly to discuss the situation with decedent's family.

Upon his return, defendant was advised that the drop in decedent's blood pressure was not related to her heart condition. Defendant then began to make a large incision into decedent's abdomen in order to determine the source of the blood loss. At this time, defendant discovered a large amount of blood in the peritoneal cavity, the thin layer of tissue that lines the abdominal cavity. After determining that the pooled blood was arterial due to its bright red color, defendant proceeded to clamp the aortic artery in order to reduce further blood loss, and then looked for the source of the bleeding. However, despite defendant's efforts to resuscitate decedent, she died from severe blood loss after being in surgery for approximately four hours. The pathologist's report indicated that the probable cause of the blood loss was a tear in the celic artery, a short artery located in the abdominal area.

On 22 June 1994, prior to filing this action, plaintiff entered into a settlement with the Hospital and Dr. Pabst. In consideration for the sum of $178,486.76, plaintiff agreed to release those parties from all liability arising out of the events surrounding decedent's death. Thereafter, plaintiff instituted this action alleging that defendant was negligent in performing the surgery on decedent, and that he was vicariously liable for the negligent acts of the resident surgeon, Dr. Pabst.

At trial after plaintiff's evidence was presented, defendant's motion for a directed verdict was denied. At the close of all the evidence, plaintiff moved for a directed verdict on the issue of whether defendant was vicariously liable for the acts of Dr. Pabst under the doctrine of respondeat superior. After hearing arguments from both parties, the trial court granted plaintiff's motion. Thereafter, the jury returned a verdict finding defendant negligent and awarded damages to plaintiff in the amount of $250,000.00. Subsequently, defendant's motion for a judgment notwithstanding the verdict (JNOV), or alternatively for a new trial, was denied by the trial court.

Following the jury verdict, the trial court ordered defendant to pay costs to plaintiff in the amount of $42,101.44 for expenses incurred for such things as depositions, expert witness fees, travel expenses, counsel fees and the production of certain medical records. Further, the trial court ordered defendant to pay prejudgment interest, from the date the complaint was filed, on the entire $250,000.00 verdict at the legal rate of 8% per annum, which amounted to $43,018.70 in interest.

Defendant first contends the trial court erred by calculating the prejudgment interest before reducing the judgment by the amount of credit he was allowed as a result of plaintiff's prior settlement with the Hospital and Dr. Pabst. Next, he contends the trial court erred by taxing certain costs against him. And finally, he contends the trial court erred by directing a verdict as to his vicarious liability for Dr. Pabst's negligence.

As to defendant's first assignment of error, he was entitled to a credit in the amount of $178,486.76 as a result of plaintiff's settlement with the Hospital and Dr. Pabst pursuant to N.C. Gen.Stat. § 1B-4, which states:

When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

(1) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater....

N.C. Gen.Stat. § 1B-4(1)(1983). Therefore, we must determine whether the trial court should have calculated the prejudgment interest before or after applying this credit.

The statutory provision allowing prejudgment interest is N.C. Gen.Stat. § 24-5, which provides in pertinent part:

(b) Other Actions.--In an action other than contract, the portion of money judgment designated by the fact finder as compensatory damages bears interest from the date the action is instituted until the judgment is satisfied. Interest on an award in an action other than contract shall be at the legal rate.

N.C. Gen.Stat. § 24-5(b)(1991). An award of prejudgment interest promotes the following public policy goals: (1) it compensates a plaintiff for the loss of use value of a damage award due to a delay in payment; (2) it prevents the defendant from being unjustly enriched for the use value of the money due to the delay in payment; and, (3) it promotes the prompt settlement of claims. Powe v. Odell, 312 N.C. 410, 413, 322 S.E.2d 762, 764 (1984); see also Baxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 430 S.E.2d 895 (1993)(where the court held that "[c]learly the purpose of the award is to compensate a worthy plaintiff for the loss of the use of money that he or she has incurred due to the wrongful acts of another party." Id. at 8, 430 S.E.2d at 900).

Defendant argues that although this Court has recognized the principle that prejudgment interest must be taxed on the entire judgment, we have also stated that it should not be assessed against compensation for the same injury or damages already paid to plaintiff prior to judgment by a settling joint tortfeasor.

In support of this proposition, defendant cites this Court's decision in Beaver v. Hampton, 106 N.C.App. 172, 416 S.E.2d 8, disc. review allowed, 332 N.C. 664, 424 S.E.2d 398 (1992), vacated on other grounds, 333 N.C. 455, 427 S.E.2d 317 (1993), where we dealt with prejudgment interest in the context of an automobile negligence action. Plaintiff was injured when his tractor-trailer truck was struck by defendant's automobile. After plaintiff filed his claim, but prior to trial, defendant's liability insurance carrier tendered its policy limit of $25,000.00 and withdrew from the case. Thereafter, the jury returned a verdict in favor of plaintiff in the amount of $30,000.00. After subtracting the prior settlement, plaintiff's underinsured motorist carrier was required to pay $5,000.00 plus prejudgment interest. However, in calculating the amount of interest, the trial court deducted the $25,000.00 settlement and only awarded prejudgment interest...