Cole v. Raut, No. 3995.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtHearn
Citation617 S.E.2d 740
PartiesMarty K. COLE and Tracy S. Cole, as co-administrators of the Estate of Kyle Austin Cole, and Tracy S. and Marty K. Cole, individually, Appellants, v. Pratibha P. RAUT, M.D., and Dr. Raut & Associates, P.A., Respondents.
Decision Date25 May 2005
Docket NumberNo. 3995.

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617 S.E.2d 740
Marty K. COLE and Tracy S. Cole, as co-administrators of the Estate of Kyle Austin Cole, and Tracy S. and Marty K. Cole, individually, Appellants,
v.
Pratibha P. RAUT, M.D., and Dr. Raut & Associates, P.A., Respondents.
No. 3995.
Court of Appeals of South Carolina.
Heard October 12, 2004.
Decided May 25, 2005.
Rehearing Denied August 29, 2005.

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Charles L. Henshaw, Jr., of Columbia, for Appellants.

Robert H. Hood, Roy P. Maybank, and Deborah Sheffield, all of Charleston, for Respondents.

HEARN, C.J.:


In this medical negligence action, Marty and Tracy Cole appeal from a verdict in favor of Dr. Pratibha P. Raut and her medical practice. The Coles argue the circuit court erred in charging the jury on assumption of risk. We agree, and reverse and remand for a new trial.

FACTS/PROCEDURAL BACKGROUND

The day before delivering her son, Kyle, Tracy Cole ("Cole") was admitted to the hospital. Cole's obstetrician, Dr. Raut, recommended that she undergo a vaginal birth after Cesarean section ("VBAC"). Although a VBAC carried risks including the possibility that the uterine scar from Cole's previous C-Section could rupture during labor and deprive the baby of oxygen, this procedure was the recommended method of delivery at that time. Cole signed a consent form acknowledging the risks associated with the

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VBAC procedure. She consented to a vaginal delivery, induction with medication, augmentation with medication, and retained the option of delivering by C-section if necessary. The consent form specifically stated that Cole:

[R]ecognize[s] that during the course of the [procedure], unforeseen conditions may necessitate additional or different procedures or services than those set forth above and ... further authorize[s] and request[s] that the above named surgeon... perform such procedures as are in his [sic] professional judgment, necessary and desirable.

The Coles admit that they "elected to face the risks of [VBAC]" and do not allege negligence in the doctor's choice of treatment to which they had consented. Rather, they complain that Raut's timing in ordering the C-section was a departure from the standard of care.

As part of the VBAC procedure, Raut induced Cole's labor on February 21, 1997. Despite the decision to proceed with the VBAC, Raut retained a surgical crew on-call in case an emergency C-section became necessary. Cole's labor progressed slowly. At approximately 1:30 a.m. the following day, a fetal heart monitor indicated changes in the baby's heart rate. At approximately 2:00 a.m., changes in the baby's heart rate necessitated administration of oxygen to Cole and continued close observation of the baby's vital signs. At that time, Raut unsuccessfully attempted to notify the operating room personnel, who were engaged in another surgical procedure, to remain in the hospital. At 2:15 a.m., Cole began to complain of abdominal pains, indicating her uterine wall had ruptured and requiring an emergency C-section. At 2:20 a.m., Raut formally ordered that Cole undergo a C-section delivery. The surgical procedure began at 2:42 a.m., twenty-two minutes after the formal order. Kyle was born at 2:45 a.m. He suffered from brain damage and related problems including cerebral palsy, developmental delays, and a seizure disorder. Kyle died in August 2003 as a result of his conditions.

Both parties presented expert testimony. The Coles' expert testified that in this case, waiting until 2:20 a.m. to order a C-section was "not acceptable." He maintained that "early warning signs," including variables in the baby's heart rate, warranted that a C-section be ordered by 2:00 a.m. According to the Coles' expert, had Dr. Raut ordered the C-section by 2:00 a.m., the operating room staff should have been able to perform the surgery and deliver the child at the latest by 2:30. The Coles' expert testified that the baby would have been neurologically normal if he were delivered by "2:30 [a.m.] or 2:33 [a.m.] or 2:32 [a.m.]." The expert stated to a reasonable degree of medical certainty that "the doctor fell below reasonable standards of care when she failed to recognize the non-reassuring tracing [on the fetal heart monitor] at two o'clock and failed to set up for a possible emergency C-section."

Raut presented two expert witnesses who testified that she did not deviate from the appropriate standard of care with respect to the timing of the C-section. One expert testified that there were no signs mandating an emergency C-section until 2:20 a.m. at which time Raut recognized the problem "right away" and "immediately then called for a stat C-section."

During trial, Raut sought to amend her pleadings to include assumption of risk as an affirmative defense. The trial court reserved its ruling until the close of the evidence. At the close of the case, the trial court charged the jury on the law of negligence and on assumption of risk. The Coles objected to the charge of assumption of risk. The jury returned a general verdict for Raut. The Coles then moved for a new trial on the grounds that Cole never assumed the risk of a delayed emergency C-section. The trial court denied the motion.

SCOPE OF REVIEW

In reviewing a trial court's decision regarding jury instructions, an appellate court will not reverse absent an abuse of discretion. Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Id. (citation omitted). The trial court is required to instruct the jury only on principles of law that apply to

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the issues raised in the pleadings and developed by the evidence in support of those issues. Id. at 390, 529 S.E.2d at 539.

DISCUSSION

The Coles argue the trial judge committed reversible error by instructing the jury on assumption of risk. We agree.

"[I]t is reversible error to charge a correct principle of law as governing a case when such principle is inapplicable to the issues on trial." Miller v. Schmid Labs., Inc., 307 S.C. 140, 142-43, 414 S.E.2d 126, 127 (1992) (quoting Dunsil v. E.M. Jones Chevrolet Co., 268 S.C. 291, 295, 233 S.E.2d 101, 103 (1977)).

"In order for the doctrine of assumption of the risk to apply, the injured party must have freely and voluntarily exposed himself to a known danger which he understood and appreciated." Faile v. Bycura, 289 S.C. 398, 399, 346 S.E.2d 528, 529 (1986) (citation omitted). The specific requirements of the defense of assumption of risk are: "(1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger." Davenport v. Cotton Hope Plantation Horizontal Property Regime, 333 S.C. 71, 79, 508 S.E.2d 565, 569 (1998) (citation omitted).

The doctrine of assumption of risk involves an intelligent and deliberate choice between a course known to be dangerous and what is not dangerous. It involves the taking of a calculated risk. Assumption of risk is a matter of knowledge of a danger and the intelligent acquiescence in it. The doctrine is predicated on the factual situation of a defendant's acts alone creating the danger and causing the accident, with the plaintiff's act being that of voluntarily exposing himself to such an obvious danger with appreciation thereof which resulted in the injury.

Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct.App.1988).

In the present case, Cole signed a consent form acknowledging the risks associated with the VBAC procedure. The consent form suggests Cole freely and voluntarily exposed herself and her child to a known danger associated with the VBAC procedure, which she understood and appreciated. However, nothing in the record suggests Cole assumed the risk associated with a delayed C-section delivery of her child following her decision to undergo the VBAC. Cole had no knowledge of the danger posed by a delay between the warning signs and the time the C-section was commenced. Moreover, Cole had no knowledge of the circumstances surrounding the delay. Without this knowledge, Cole could not appreciate the nature and extent of the danger or voluntarily expose herself and her child to such a danger. As a result, the trial judge erred in charging the jury on assumption of risk.

"The giving of an erroneous instruction is not reversible error, unless the appellant can show that he was injured and prejudiced thereby." Ellison v. Simmons, 238 S.C. 364, 372, 120 S.E.2d 209, 213 (1961). In Ellison, the court found the trial judge erred in instructing the jury "that pecuniary loss will be presumed where the beneficiaries of the action for wrongful death are the widow and minor children of the decedent, when it is undisputed that all of the decedent's children are adults." Id. at 370, 120 S.E.2d 209, 212. However, the court found the error was not reversible because the appellant failed to show the charge was prejudicial when pecuniary loss was undisputed at trial and the judge also charged the jury on the elements to consider in awarding damages. In so holding, the Ellison court distinguished two cases, Wright v. Harris, 228 S.C. 144, 89 S.E.2d 97 (1955) and Citizens Bank of Darlington v. McDonald, 202 S.C. 244, 24 S.E.2d 369 (1943).

In Wright, the court stated:

[I]t is reversible error to charge a correct principle of law as governing a case when such principle is inapplicable to the issues on trial. Conflicting and irrelevant instructions constitute reversible error[;] and a trial Judge ought to take care not to confuse the jury by charging them on legal principles which are inapplicable to the case on trial....

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228 S.C. at 148, 89 S.E.2d at 98 (citations omitted). The Wright court held...

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1 practice notes
  • Cole v. Raut, No. 26503.
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 2008
    ...of the risk prejudiced the Coles and that the two-issue rule did not apply to uphold the jury verdict. Cole v. Raut, 365 S.C. 434, 617 S.E.2d 740 (Ct.App.2005). This Court granted certiorari, and Dr. Raut raises the following issue for Did the court of appeals err in finding that the trial ......
1 cases
  • Cole v. Raut, No. 26503.
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 2008
    ...of the risk prejudiced the Coles and that the two-issue rule did not apply to uphold the jury verdict. Cole v. Raut, 365 S.C. 434, 617 S.E.2d 740 (Ct.App.2005). This Court granted certiorari, and Dr. Raut raises the following issue for Did the court of appeals err in finding that the trial ......

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