Campbell By and Through McMillan v. Pitt County Memorial Hosp., Inc., 863SC556

• Decision Date: 17 February 1987
• Docket Number: No. 863SC556,863SC556
• Citation: 84 N.C.App. 314,352 S.E.2d 902
• Parties: Jennifer Love CAMPBELL, By and Through her Guardian ad Litem, Duncan A. McMILLAN, Margaret O. Campbell and Jeffrey L. Campbell v. PITT COUNTY MEMORIAL HOSPITAL, INC.
• Court: North Carolina Court of Appeals

Page 902

352 S.E.2d 902

84 N.C.App. 314

Jennifer Love CAMPBELL, By and Through her Guardian ad Litem, Duncan A. McMILLAN, Margaret O. Campbell and Jeffrey L. Campbell v. PITT COUNTY MEMORIAL HOSPITAL, INC.

No. 863SC556.

Court of Appeals of North Carolina.

Feb. 17, 1987.

Tharrington, Smith & Hargrove by John R. Edwards and Burton Craige, Kirby, Wallace, Creech, Sarda & Zaytoun by Robert Zaytoun, Raleigh, for plaintiffs.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Robert M. Clay and Alene M. Mercer, Raleigh, for defendant Pitt County Memorial Hosp., Inc.

Bell, Davis & Pitt, P.A., by William Kearns Davis and Stephen M. Russell, for North Carolina Ass'n of Defense Attorneys, as amicus curiae.

Kevin B. Yow and Harris, Cheshire, Leager & Southern, by Samuel O. Southern, for North Carolina Hosp. Ass'n as amicus curiae.

WELLS, Judge.

Defendant's Appeal

Defendant contends the court erred in failing to grant its motions for a continuance. We disagree.

"Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it." Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976). "The granting of a continuance is within the discretion of the trial court and absent a manifest abuse of discretion its ruling is not reviewable on appeal." Lumbermens Mut. Cas. Co. v. Pennsylvania Nat. Mut. Cas. Ins. Co., 70 N.C.App. 742, 321 S.E.2d 10 (1984).

Defendant contends that its counsel was unprepared for trial because plaintiffs first informed defendant on 15 February 1985, approximately one month before trial, that either twenty-two or twenty-three persons would be expert witnesses for plaintiffs at trial. Defendant argues that the burden of attending depositions between 25 February and 14 March made it impossible to prepare adequately for trial.

We hold, however, that defendant has failed to show any substantial prejudice to its rights by this alleged burden. Suggs v. Carroll, 76 N.C.App. 420, 333 S.E.2d 510 (1985). Accordingly, we hold that the court did not err in denying defendant's motions for a continuance.

Defendant contends that the court erred in prohibiting any references to Dr. Deyton's participation as a defendant in the case. However, we hold, following Cates v. Wilson, 83 N.C.App. 448, 350 S.E.2d 898 (1986), that the court properly excluded references to Dr. Deyton's participation as a defendant. Specifically, any such references were properly excluded as irrelevant under N.C.Gen.Stat. § 8C-1, Rule 402 of the North Carolina Rules of Evidence and as contravening the strong public policy favoring settlement of controversies out of court. Cates, supra.

Defendant contends the court erred in admitting a "Day-in-the-Life" videotape of Jennifer Campbell. We disagree.

Videotapes generally are admissible into evidence under North Carolina law for both illustrative and substantive purposes. N.C.Gen.Stat. § 8-97; State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970). In Strickland, our Supreme Court observed that

the use of properly authenticated moving pictures to illustrate a witness' testimony may be of invaluable aid in the jury's search for a verdict that speaks the truth. However, the powerful impact of this type of evidence requires the trial judge to examine carefully into its authenticity, relevancy, and competency, and--if he finds it to be competent--to give the jury proper limiting instructions at the time it is introduced.

Based on our review of the record we hold that the court (1) did examine carefully into the authenticity, relevancy, and competency of the videotape, (2) found that it was admissible and (3) gave the jury proper limiting instructions at the time it was introduced. Strickland, supra. Mrs. Campbell testified that she had viewed the videotape and that it accurately illustrated Jennifer's daily activities, capabilities, and physical deficiencies. Although the court did not view the tape before it was played to the jury, the court heard arguments on the admissibility of the tape in which the nature of the tape, how it was made, its length and the principals involved all were described. After ruling the tape admissible in its entirety, the court gave the jury the following limiting instruction:

And I instruct you now that you would not consider this video tape as proof for the purpose of establishing the truth of any matter in this lawsuit. You would consider it for the purposes of illustrating the testimony of witnesses, if in fact you find that it does illustrate testimony of witnesses in this lawsuit, and would not consider it for any other purpose.

It is not offered nor is it received for any purpose other than as illustrative of witnesses' testimony.

Defendant further emphasizes that its counsel had inadequate notice "as to the filming of the videotape because counsel for defendant was not invited to the taping session and did not receive an opportunity to view the tape until the first day of trial."

We recognize that, in order to prevent any likelihood of unfair surprise, the better practice is to provide notice to both opposing counsel and the trial court prior to taping. Passanante, "The Use of Clinical and 'Day-in-the-Life' Presentations in Personal Injury Litigation: A Rising Star in the American Courtroom," 20 Wake Forest L.Rev. 121 (1984). We hold, however, that plaintiffs' failure to provide such notice here did not render the tape inadmissible. Rather, as we have emphasized above, the admissibility of the videotape under the particular facts and circumstances of this case lay solely within the sound discretion of the trial court. As defendant has not shown that the court abused its discretion by admitting the evidence, we find no error.

Defendant contends the court erred in allowing "cross-examination of defendant's witnesses with purported quotes from depositions not in evidence and with hypothetical questions which were inflammatory and irrelevant to the facts of the case." We have reviewed each of these exceptions and find no prejudicial error in the court's rulings. See Cole v. Duke Power Co., 81 N.C.App. 213, 344 S.E.2d 130 disc. rev. denied 318 N.C. 281, 347 S.E.2d 462 (1986).

Defendant contends the court improperly submitted issue # 2 and issue # 3 to the jury. Both of these issues involve the question of corporate negligence. In essence, during trial plaintiffs presented evidence establishing two separate duties which they alleged defendant owed to them under the doctrine of corporate negligence. The first duty concerns informed consent, and it is addressed by issue # 2 which reads: "Were the plaintiffs ... injured by the negligent failure of the defendant ... to insure that plaintiff[s'] informed consent ha[d] been obtained?"

The second duty concerns the absence of an operational and effective chain of command at the hospital and it is addressed by issue # 3 taken with the jury charge for this issue. Issue # 3 reads: "Were the plaintiffs ... injured by the corporate negligence of the defendant ...?" The court charged the jury, under issue # 3, in pertinent part:

In this regard, ladies and gentlemen, I instruct you that if the plaintiffs have proved by the greater weight of the evidence that the defendant hospital was negligent in failing to make a reasonable effort to monitor and oversee the treatment of Margaret and Jennifer Campbell by Dr. Deyton, ... [in] that the hospital had a duty to make a reasonable effort to establish a mechanism for the prompt reporting of any situation that created a threat to the health of a patient so that such reporting is effective to safeguard the health of the patient and can be done without fear of reprisal, and that the defendant failed to do that;

And, if the plaintiffs have further satisfied you from the evidence and by its greater weight that such negligence, if any, was a proximate cause of injury to the plaintiff, it would be your duty to answer this issue "Yes" in favor of the plaintiff.

The jury answered both issues in the affirmative.

In summary, issues # 2 and # 3 respectively raise the following two dispositive questions affecting defendant's corporate liability to plaintiffs: (1) whether plaintiffs' injuries were caused by a breach of a duty owed directly by defendant hospital to plaintiffs to insure that plaintiffs' informed consent to a vaginal delivery of a footling breech baby had been obtained prior to the actual delivery of the minor-plaintiff and (2) whether plaintiffs' injuries were caused by a breach of a duty owed directly by defendant hospital to plaintiffs to establish an effective mechanism for the prompt reporting of any situation that created a threat to the health of a patient such as the minor-plaintiff here. An affirmative answer to either issue would establish defendant hospital's corporate liability to plaintiffs.

For the reasons discussed below, we hold that defendant, under the doctrine of corporate negligence set forth in Bost v. Riley, 44 N.C.App. 638, 262 S.E.2d 391, disc. rev. denied, 300 N.C. 194, 269 S.E.2d 621 (1980) as applied to the specific facts and circumstances of this case, did have a legal duty to insure that plaintiffs' informed consent to a vaginal delivery of a footling breech baby had been obtained prior to delivery. We further hold that the evidence, when viewed in the light most favorable to plaintiffs, was sufficient to establish defendant's liability as a corporate entity for damages resulting from defendant's breach of this duty. Regarding issue # 3, we hold that defendant also had a duty under the doctrine of corporate negligence set forth in Bost as applied to the specific facts and circumstances of this case to establish an effective mechanism for the prompt reporting of any situation that created a threat to the health of a patient such as the minor-plaintiff here. We further hold that the evidence, when viewed in the light most favorable to plaintiffs, was sufficient to establish defendant...