Couch v. Private Diagnostic Clinic

Decision Date04 May 1999
Docket NumberNo. COA97-1540.,COA97-1540.
Citation133 NC App. 93,515 S.E.2d 30
CourtNorth Carolina Court of Appeals
PartiesFinesse G. COUCH, Individually and as Administratrix of the Estate of Carnell Simmons Couch, Plaintiff, v. PRIVATE DIAGNOSTIC CLINIC and Duke University, Defendants.

Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, by Maria P. Sperando, Fort Pierce, FL, and Keith A. Bishop, Durham, for plaintiff-appellee.

Maxwell, Freeman & Bowman, P.A., by James B. Maxwell, Durham, and Robinson Bradshaw & Hinson, P.A., by Everett J. Bowman, Lawrence C. Moore, III, and John M. Conley, Charlotte, for defendants-appellants.

WYNN, Judge.

Defendants Duke University and the Private Diagnostic Clinic appeal from a jury determination that their medical practice negligence caused the death of ten-year-old Carnell Simmons Couch—son of plaintiff Finesse G. Couch.

Individually and as administratrix of Carnell's estate, Ms. Couch initiated this action against Duke, the Private Diagnostic Clinic, and Dr. Delbert R. Wigfall—an Assistant Professor of Pediatric and Acting Chief of the Division of Nephrology at Duke. She alleged that those medical providers negligently: (1) failed to examine, assess, and treat Carnell in an appropriate and timely manner and, (2) failed to appropriately diagnose the extent and urgency of Carnell's condition.

In her complaint, Ms. Couch characterized Duke as a private university operating a private hospital for the treatment of persons in need of medical care and attention and the Private Diagnostic Clinic as a professional organization of physicians who practice medicine at Duke. The complaint further alleged:

At all times relevant to this action Dr. Wigfall, the attending physician and all other physicians under his control, supervision and guidance who rendered treatment, were agents of Duke [and the Private Diagnostic Clinic] and that all acts and omissions of Dr. Wigfall and all other physicians rendering treatment ... were performed within the scope of their agency as agents and representatives of Duke [and the Private Diagnostic Clinic].

Although defendants denied in their answer that Dr. Wigfall and all other physicians were acting within the course and scope of an agency relationship with Duke at the time they rendered treatment to Carnell, they admitted that the Private Diagnostic Clinic is a professional organization of physicians who practice medicine at Duke. Moreover, defendants admitted that Dr. Wigfall is a member of the Private Diagnostic Clinic practicing at Duke "and as such is employed by [Duke] to carry out those duties."

The day following the commencement of trial on 6 January 1997, Ms. Couch "by and through her ... attorney of record" filed a written "Notice of Voluntary Dismissal with Prejudice" against Dr. Wigfall and the Private Diagnostic Clinic. Five days into the trial after six witnesses had testified, Ms. Couch's counsel attempted to have it stipulated "that the doctors who read the x-rays, and who treated Carnell on the 4th through the 15th [of December], and before, were employees of ... [Duke]."

Defendants' counsel responded that these physicians "were ... partners in the Private Diagnostic Clinic, at Duke practicing medicine at the medical center." Further, he stated that the physicians were employed as professors or faculty members in the Department of Pediatrics at Duke. However, he would not stipulate that the physicians were employed by Duke "as treating physicians."

Concerned that she had prematurely dismissed the Private Diagnostic Clinic as a defendant, Ms. Couch's counsel orally moved under Rule 60(b) for relief from the judgment in order to reinstate the Private Diagnostic Clinic. In support of this motion, counsel explained that she thought that only Dr. Wigfall was an employee of Duke at the time they rendered treatment to Carnell. Ms. Couch's counsel admitted that "it was a mistake, it was an honest mistake that we made," based on the statements of defendants' counsel and the allegation in the answer, that these physicians were employees of Duke. At another point in the record, Ms. Couch's counsel told the trial court that she entered the dismissal "because I wanted to just have everything real clean and have one defendant."

Despite defendants' objection to Ms. Couch's motion, the trial court reinstated the Private Diagnostic Clinic as a defendant. In its written order allowing the reinstatement of the Private Diagnostic Clinic, the trial court found that in dismissing the Private Diagnostic Clinic, Ms. Couch's counsel "acted in the good faith belief that an employer-employee relationship between all treating physicians and [Duke]" existed. Additionally, it found that: (1) Duke and the Private Diagnostic Clinic had not been prejudiced and (2) "the plaintiff was not at fault ... and played no role in her counsel's decision to remove [the] Private Diagnostic Clinic as a named defendant." Therefore, the trial court concluded that "the belief of counsel relative to the admissions of [Duke] was an inadvertent mistake and the actions taken... were excusable neglect."

At trial, the evidence showed that on 4 December 1991, Ms. Couch brought Carnell, who previously had been diagnosed with nephrotic syndrome1 with minimal change disease, to Duke's emergency room after he began experiencing symptoms including swelling, decreased urine output, and shortness of breath. After performing a number of tests on Carnell, including a chest x-ray, the medical personnel diagnosed his condition as a relapse of his nephrotic syndrome, treated him with several drugs, and discharged him to the care of his parents.

On 10 December 1991, Carnell was again brought to Duke's emergency room complaining of a shortness of breath, coughing, and vomiting. This time, however, he was admitted to the hospital and given numerous tests including chest x-rays and two electrocardiograms ("EKGs"). An initial x-ray on 10 December 1991 led to a diagnosis of pneumonia, but the second x-ray on 14 December 1991 was reported to reveal that his lung anomaly had begun to resolve.

Further, the first EKG on 13 December 1991 was characterized as "a very strange looking EKG" suggesting that this test be repeated. The second, however, was interpreted as normal. Thereafter, on 15 December 1991, Carnell was discharged from Duke.

While at home on 13 February 1992, Carnell died. An autopsy established the cause of death as in situ pulmonary artery thrombosis, meaning that one or more blood clots had developed and blocked the main artery leading from the heart to the lungs. Some of the blood clots were determined to be months old, while others were years old.

At the close of all of the evidence, Duke moved for a directed verdict on the grounds that there was insufficient evidence of negligence on its part. The Private Diagnostic Clinic's motion was based in part on the trial court reinstating it as a defendant. The trial court denied both motions.

Subsequently, the jury determined that the medical doctors who treated Carnell were agents of Duke and that Carnell's death was caused by the negligence of both the Private Diagnostic Clinic and Duke. Damages were assessed at $2,501,150.00. Defendants moved for judgment notwithstanding the verdict (JNOV) which the trial court denied.

On appeal, defendants contend that the trial court committed reversible error by: (1) permitting Ms. Couch's counsel to engage in a grossly improper jury argument during trial, (2) denying Duke's Motion for Judgment Notwithstanding the Verdict, and (3) allowing Ms. Couch's counsel to reinstate the Private Diagnostic Clinic as a defendant. We address each of these seriatim.


First, defendants assert that the trial court abused its discretion in allowing the jury argument of Ms. Couch's counsel which contained various references to the veracity of defense witnesses. Specifically, defendants point to counsel's comments that: (1) "There is nothing worse than a liar because you can't protect yourself from a liar.... [T]hese people, and all the doctors that they paraded in here who told you lie, after lie, after lie"; (2) "They lied to your face, blatantly. They didn't care. They tried to make fools of everybody in the courtroom"; (3) "In your face lies"; (4) " ... they knew before they put their hands on the Bible that they were going to tell those lies and [Defendants' attorney] put them up anyway. That's heavy. That's a heavy accusation"; (5) "Well, I don't know what you call it but that's a lie. That's not even—that's not shading the truth ... How is that not a lie? How is that not a lie?"; (6) "So you see, when I say a lie, okay, I want the record to reflect that I mean a lie"; (7) "Now let me ask you this, how do you think that they intend to get out from under all these lies?"; (8) "This is another blatant lie"; (9) "When they parade these witnesses in one after another and lied to your face. I mean, they were not even smooth about it."

It is well established in North Carolina that "[c]ounsel have wide latitude in making their arguments to the jury." State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967). Further, the control of counsel's arguments "must be left largely to the discretion of the trial judge," State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979), because the trial judge

`sees what is done, and hears what is said. He is cognizant of all the surrounding circumstances, and is a better judge of the latitude that ought to be allowed to counsel in the argument of any particular case.'

State v. Thompson, 278 N.C. 277, 283, 179 S.E.2d 315, 319 (1971) (quoting State v. Barefoot, 241 N.C. 650, 657, 86 S.E.2d 424, 429 (1955)). Therefore, "the appellate courts ordinarily will not review the exercise of the trial judge's discretion [regarding jury arguments] unless the impropriety of counsel's remarks is extreme and is clearly calculated to prejudice the jury in its deliberations." Johnson...

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18 cases
  • State v. Rogers, 373A00.
    • United States
    • North Carolina Supreme Court
    • May 10, 2002
    ...calling a witness or opposing counsel a liar when there has been no evidence to support the allegation, Couch v. Private Diagnostic Clinic, 133 N.C.App. 93, 100, 515 S.E.2d 30, 36, aff'd per curiam, 351 N.C. 92, 520 S.E.2d 785 (1999); see also State v. Locklear, 294 N.C. 210, 217-18, 241 S.......
  • Town of Nags Head v. Richardson
    • United States
    • North Carolina Court of Appeals
    • July 3, 2018
    ...[the movant's] motion for a directed verdict." N.C. Gen. Stat. § 1A-1, Rule 50(b)(1) (2017) ; see also Couch v. Private Diagnostic Clinic , 133 N.C. App. 93, 100, 515 S.E.2d 30, 36 (1999) ("A motion for JNOV is treated as a renewal of the motion for directed verdict. Thus, a movant cannot a......
  • Couch v. Private Diagnostic Clinic
    • United States
    • North Carolina Court of Appeals
    • November 6, 2001
    ...these witnesses in one after another and lied to your face. I mean, they were not even smooth about it.'" Couch v. Private Diagnostic Clinic, 133 N.C.App. 93, 97, 515 S.E.2d 30, 34-35, affirmed, 351 N.C. 92, 520 S.E.2d 785 Sperando also questioned the veracity of defense counsel in front of......
  • State v. Huey
    • United States
    • North Carolina Supreme Court
    • September 29, 2017
    ...and the drug dealer, and defendant grabbed the drug dealer’s gun and shot the victim.3 Rogers cites to Couch v. Private Diagnostic Clinic , 133 N.C.App. 93, 100, 515 S.E.2d 30, 36 (1999), aff’d per curiam , 351 N.C. 92, 520 S.E.2d 785 (1999), in which this Court concluded that counsel "enga......
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