Estate of Savino v. Charlotte-Mecklenburg Hosp. Auth.

Citation822 S.E.2d 565,262 N.C.App. 526
Decision Date04 December 2018
Docket NumberNo. COA17-1335,COA17-1335
Parties The ESTATE OF Anthony Lawrence SAVINO, Plaintiff, v. The CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, a North Carolina Hospital Authority, d/b/a Carolinas Healthcare System and CMC-Northeast, Defendant.
CourtNorth Carolina Court of Appeals

262 N.C.App. 526
822 S.E.2d 565

The ESTATE OF Anthony Lawrence SAVINO, Plaintiff,
v.
The CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, a North Carolina Hospital Authority, d/b/a Carolinas Healthcare System and CMC-Northeast, Defendant.

No. COA17-1335

Court of Appeals of North Carolina.

Filed: December 4, 2018


Zaytoun Law Firm, PLLC, Raleigh, by Matthew D. Ballew, Robert E. Zaytoun, and John R. Taylor, and Brown, Moore & Associates, PLLC, Charlotte, by R. Kent Brown, Jon R. Moore, and Paige L. Pahlke, for plaintiff-appellee.

Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, Raleigh, and Matthew W. Krueger-Andes, Charlotte, and Horack, Talley, Pharr & Lowndes, P.A., Charlotte, by Kimberly Sullivan, for defendant-appellant.

Bradley Arant Boult Cummings LLP, by Robert R. Marcus, for defendant-appellant.

ARROWOOD, Judge.

262 N.C.App. 529

The Charlotte-Mecklenburg Hospital Authority ("defendant"), d/b/a Carolinas Healthcare System and CMC-Northeast, appeals from judgment in favor of the Estate of Anthony Lawrence Savino ("plaintiff") and orders denying motions for a judgment notwithstanding the verdict ("JNOV") or for a new trial. For the following reasons, we reverse in part, vacate in part, and grant a new trial on non-economic damages.

I. Background

Anthony Lawrence Savino ("decedent") died on the evening of 30 April 2012 after receiving medical treatment at CMC-Northeast earlier that afternoon in response to complaints of chest pain, a headache, dizziness, and numbness and tingling in his arms and hands.

Specifically, Cabarrus County EMS responded to an emergency call regarding decedent's report of chest pain at approximately 1:32 p.m. on 30 April 2012. While transporting decedent to CMC-Northeast, EMS treated decedent with aspirin and a nitroglycerin tablet to relieve his chest pain. Decedent arrived at CMC-Northeast at approximately 2:22 p.m. The admitting nurse at CMC-Northeast was told verbally by the EMT of EMS's treatment and the admitting nurse signed an "EMS Snapshot" that detailed EMS's treatment. The admitting nurse recorded decedent's complaints into his medical chart. Decedent was then examined by an emergency department physician who reviewed decedent's medical chart. The admitting nurse did not relay to the emergency department physician the information provided by the EMT or included in the "EMS Snapshot." The emergency room physician documented decedent's complaints and ordered diagnostic tests. Results of decedent's lab work were not unusual, leading the physician to report a "negative cardiac work-up." Decedent was discharged at approximately 5:31 p.m. with

262 N.C.App. 530

instructions to follow-up with his primary care physician. Hours later, at approximately 10:58 p.m., decedent's widow found him unresponsive and immediately called EMS. Resuscitation efforts were unsuccessful and decedent was pronounced dead at the scene.

Almost two years after decedent's death, plaintiff and decedent's widow filed an initial "Complaint for Medical Negligence" on 23 April 2014 against defendant, the attending emergency room physician, and the attending emergency room physician's practice (the "2014 Complaint"). Defendant filed an answer with affirmative defenses and a declaration not to arbitrate on 3 July 2014.

On 6 January 2016, plaintiff filed a motion for leave to amend the 2014 Complaint "to

822 S.E.2d 570

conform to the evidence presented to date" "out of an abundance of caution[.]" Plaintiff then filed a withdrawal of the motion for leave to amend the complaint on 15 January 2016, followed by a notice of voluntary dismissal as to all parties without prejudice to refile against defendant only on 19 January 2016. Plaintiff and decedent's widow refiled a "Complaint for Medical Negligence" against defendant on 1 February 2016 (the "2016 Complaint"); the attending emergency room physician and the physician's practice were no longer named as defendants.1 Defendant filed an answer with affirmative defenses and a declaration not to arbitrate on 5 April 2016.

The case was tried before a jury in Cabarrus County Superior Court, the Honorable Julia Lynn Gullett presiding, between 24 October 2016 and 15 November 2016.

A disagreement between the parties arose during the trial court's consideration of pretrial motions when plaintiff asserted that "obviously this is a medical negligence case" and explained that "there's basically two contentions of negligence in this case[.]" Plaintiff then asserted that it was proceeding on both theories–negligence in the provision of medical care and negligence in the performance of administrative duties. Defendant disagreed that there were two theories of negligence in this case, asserting "[t]he complaint only alleges one theory of negligence."

The parties continued to argue over this issue throughout the hearing of pretrial motions and the trial. Defendant consistently maintained that plaintiff did not plead a claim for administrative negligence. Plaintiff argued its general negligence allegations pleaded in the 2016 Complaint were sufficient to assert both theories of negligence and

262 N.C.App. 531

that defendant was on notice of the administrative negligence claim from plaintiff's designation of experts. The trial court allowed plaintiff to proceed on both negligence theories.

At the close of plaintiff's evidence, defendant moved for a directed verdict. Among the grounds argued, defendant claimed plaintiff did not plead an administrative negligence claim and that, to the extent the paragraphs added to the 2016 Complaint alleged administrative negligence, those portions were barred by the statute of limitations. The trial court denied defendant's motion for a directed verdict without hearing argument from the plaintiff. Defendant later filed a renewed motion for a directed verdict at the close of all the evidence on 10 November 2016. In the motion, defendant asserted there was insufficient evidence and that any claim for administrative negligence should be dismissed because it is barred by the statute of limitations. The trial court again denied defendant's motion.

On 15 November 2016, the jury returned verdicts finding decedent's death was caused by defendant's negligent provision of medical care and defendant's negligent performance of administrative duties. The jury found that plaintiff was entitled to $680,000.00 in economic damages and $5,500,000.00 in non-economic damages. The jury also found that defendant's provision of medical care and defendant's performance of administrative duties were both in reckless disregard to the rights and safety of others.

On 8 December 2016, the trial court entered judgment on the jury verdicts awarding plaintiff $6,130,000.00 in total damages, plus pre- and post-judgment interest as allowed by law. On 12 December 2016, the trial court entered an additional order for costs awarding plaintiff $417,847.15 in pre-judgment interest and $15,571.35 in costs.

Following the entry of judgment, on 16 December 2016, defendant filed a motion for a "JNOV" or for a new trial pursuant to Rule 50(b)(1) and Rule 59 of the North Carolina Rules of Civil Procedure. Defendant moved the court to

set aside the Verdict of the Jury and the Judgment entered thereon and to enter Judgment in accordance with the Defendant's Motion for Directed Verdict submitted and argued by the Defendant at the close of the evidence offered by the Plaintiff and renewed at the close of all the evidence, or in the alternative, for a new trial on all issues, or in the alternative, for remittitur.
822 S.E.2d 571
262 N.C.App. 532

The motions were heard before Judge Gullett in Cabarrus County Superior Court on 19 January 2017 and the trial court entered separate orders denying defendant's motions for a JNOV and a new trial that same day.

On 7 February 2017, defendant filed notice of appeal to this Court from the 8 December 2016 judgment and the 19 January 2017 orders.

II. Discussion

Defendant's primary arguments on appeal concern the trial court's denial of its motion for a JNOV on the administrative negligence and medical negligence claims. Alternatively, defendant argues the trial court erred in allowing the jury to award damages for pain and suffering and in granting plaintiff's motion for a directed verdict on defendant's contributory negligence defense.

1. JNOV

Defendant contends the trial court erred in denying its motion for a JNOV because (1) plaintiff failed to plead a claim for administrative negligence, (2) any claim pleaded in the 2016 Complaint for administrative negligence was barred by the applicable statute of limitations, and (3) plaintiff did not present sufficient evidence of either administrative negligence or medical negligence.

Generally, a motion for a directed verdict or for a JNOV raises the issue of the legal sufficiency of the evidence. Thus, our appellate courts have explained that, "[o]n appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether...

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