Justus v. Rosner, 122118 NCSC, 255A17

Docket Nº:255A17
Opinion Judge:HUDSON, JUSTICE.
Party Name:BILLY BRUCE JUSTUS, as Administrator of the Estate of Pamela Jane Justus v. MICHAEL J. ROSNER, M.D.; MICHAEL J. ROSNER, M.D., P.A.; FLETCHER HOSPITAL, INC. d/b/a PARK RIDGE HOSPITAL; ADVENTIST HEALTH SYSTEM; and ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORPORATION
Attorney:Law Offices of Wade Byrd, P.A., by Wade E. Byrd, for plaintiff-appellee. Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellants, Michael J. Rosner, M.D. and Michael J. Rosner, M.D., P.A.
Judge Panel:Chief Justice MARTIN concurring in part and dissenting in part. Justice JACKSON joins in this opinion. Justice NEWBY dissenting.
Case Date:December 21, 2018
Court:Supreme Court of North Carolina
 
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BILLY BRUCE JUSTUS, as Administrator of the Estate of Pamela Jane Justus

v.

MICHAEL J. ROSNER, M.D.; MICHAEL J. ROSNER, M.D., P.A.; FLETCHER HOSPITAL, INC. d/b/a PARK RIDGE HOSPITAL; ADVENTIST HEALTH SYSTEM; and ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORPORATION

No. 255A17

Supreme Court of North Carolina

December 21, 2018

Heard in the Supreme Court on 12 March 2018.

Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, __ N.C.App. __, 802 S.E.2d 142 (2017), affirming an order awarding costs, affirming in part and reversing in part an order granting plaintiff's motion to alter or amend judgment, and vacating an amended judgment, all entered on 3 March 2015 by Judge Zoro J. Guice, Jr. in Superior Court, Henderson County, and remanding for a new trial on damages. On 28 September 2017, the Supreme Court allowed defendants' petition for discretionary review of additional issues.

Law Offices of Wade Byrd, P.A., by Wade E. Byrd, for plaintiff-appellee.

Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for defendant-appellants, Michael J. Rosner, M.D. and Michael J. Rosner, M.D., P.A.

HUDSON, JUSTICE.

Here we consider whether the trial court erred in setting aside the jury's verdict in this medical malpractice suit on the ground that the jury awarded insufficient damages to plaintiff Billy Bruce Justus (plaintiff) after finding that defendant Michael J. Rosner, M.D. performed unnecessary surgeries on plaintiff's now-deceased wife, Pamela Jane Justus. For the reasons stated below, we affirm the decision of the Court of Appeals to remand this action for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pamela came to Dr. Rosner in 2000 after suffering from serious neurological symptoms for many years and being treated by a variety of neurologists and pain clinics since the mid-1990s. She complained to Dr. Rosner of severe pain in the back of her neck and right temple as well as diminished memory and cognition, dizziness, and balance problems. Based upon his examination, Dr. Rosner discussed with Pamela the possibility of performing a laminectomy surgery to decompress her spinal cord. Pamela elected to undergo the laminectomy, which Dr. Rosner performed in June 2000.

By December 2000, Pamela reported to Dr. Rosner that she was doing "horribly" and experiencing severe neck pain. Based upon Dr. Rosner's advice, Pamela agreed to undergo a C1 laminectomy and suboccipital craniectomy, which Dr. Rosner performed in February 2001. Dr. Rosner last saw Pamela as a patient on 21 March 2001. During that appointment, she was advised to return in two months and to contact Dr. Rosner's office several weeks beforehand if she had not improved significantly so that an MRI could be ordered. Pamela called Dr. Rosner's office on 29 May 2001 complaining of severe neck pain and an inability to hold her head up. Dr. Rosner's physician's assistant advised Pamela to return for an MRI, but Pamela refused to return, stating that she was "afraid" to come back to the office and that her insurance was no longer accepted.

Over the following months and years, Pamela saw numerous doctors for diagnosis and treatment of her neck condition. In just the year after she stopped seeing Dr. Rosner, she made at least nine medical visits for various reasons and procedures, including: an MRI in August 2001; possible treatments for vocal cord damage stemming from Dr. Rosner's February 2001 surgery; neurological evaluations at multiple practices; and injections for nerve pain.

In April 2004 Domagoj Coric, M.D. performed a fusion surgery on Pamela's neck to address her inability to lift her head off of her chest. After that surgery did not solve the problem, Dr. Coric performed a second operation in 2011. Pamela passed away in September 2012; her death certificate listed non-alcohol related kidney and liver problems as her immediate cause of death.

In June 2003, plaintiff and Pamela filed suit against Dr. Rosner; and his medical practice, Michael J. Rosner, P.A. (defendants); and Fletcher Hospital, Inc. d/b/a Park Ridge Hospital, Adventist Health System, and Adventist Health System Sunbelt Healthcare Corporation (the hospital defendants). The complaint included claims against Dr. Rosner for negligence, lack of informed consent, fraud, loss of consortium, the value of services rendered to Pamela, and willful and wanton conduct. The thrust of the suit was that Dr. Rosner performed unwarranted, unnecessary, and contraindicated experimental surgeries on Pamela and failed to fully inform her of their novelty and risks. This case, along with twenty-four related actions against Dr. Rosner, was designated as exceptional under Rule 2.1 of the General Rules of Practice for the Superior and District Courts. After Pamela passed away in 2012, plaintiff, in his capacity as administrator of her estate, was substituted as a party plaintiff for Pamela and allowed to amend the complaint to assert claims for wrongful death and civil conspiracy.

The case was tried in Superior Court, Henderson County, beginning on 28 July 2014 before Judge Zoro J. Guice, Jr. During the trial, Dr. Rosner offered the testimony of several expert witnesses who suggested that Pamela could have avoided the chin-on-chest deformity she developed as a result of Dr. Rosner's surgeries if she had returned specifically to him for follow-up care. For instance, Michael Seiff, M.D. testified in pertinent part as follows: Q. And to your knowledge, did [Pamela] follow up as instructed with Dr. Rosner?

A. No.

Q. Had she done so, as an expert in the field of neurosurgery, do you believe that this chin-on-chest deformity could have been avoided with appropriate follow-up by [Pamela] with Dr. Rosner?

A. Absolutely.

(Emphases added.) Similarly, an exchange with Konstantin Slavin, M.D. went as follows: Q. . . . [D]id you know that Pam Justus stopped going to Dr. Rosner and was essentially -- I don't want to say lost in follow-up. She refused to return to Dr. Rosner following her second operation. Were you aware of that?

A. That's my understanding, yes.

Q. Do you believe, Doctor, had she followed up with Dr. Rosner, that this deformity, this chin-to-chest, this kyphosis, could have been caught earlier and remedied earlier, had she simply been following up as she should have?

A. That's a definite possibility, yes.

(Emphases added.) Likewise, the examination of Donald Richardson, M.D. included the following exchange: Q. . . .[H]ave you, as a neurosurgeon, who's looked at the films, who's looked at the records, have you formed an opinion to a reasonable degree of medical certainty about whether or not Pam Justus's failure to follow up with Dr. Rosner was a proximate cause of her development of chin-on-chest deformity? The question is simply yes or no.

A. Yes.

(Emphasis added.)

The jury returned its verdict on 25 September 2014 finding defendants liable for negligence and finding no liability against defendants on other grounds or against the hospital defendants.1 On its verdict form, the jury found that Pamela had suffered damages in the amount of $512, 162.00 but that her damages should be reduced by $512, 161.00 because of her "unreasonable failure . . . to avoid or minimize her damages." Accordingly, the trial court entered judgment in the amount of $1.00.

On 31 October 2014, plaintiff moved to alter or amend the judgment under Rule 59 of the North Carolina Rules of Civil Procedure. Specifically, plaintiff asserted that the jury's finding regarding Pamela's failure to mitigate damages was "contrary to the greater weight of credible testimony" and "contrary to law," and displayed "a manifest disregard of the jury to the instructions of the [c]ourt." Plaintiff asserted that the principal evidence to support the mitigation finding was that Pamela did not return to Dr. Rosner for follow-up care and that, as a matter of law, "she had no duty to seek medical attention specifically from Dr. Rosner rather than from other health care providers." Plaintiff also argued that the evidence showed that Pamela affirmatively took reasonable steps to mitigate damages by seeing numerous doctors in the wake of Dr. Rosner's negligent surgeries.

Following a hearing, the trial court entered an order on 3 March 2015 granting plaintiff's Rule 59 motion. Regarding the jury's mitigation of damages verdict, the court found that (1) Dr. Rosner's expert witnesses in neurology "testified that Mrs. Justus' condition could have been ameliorated had she promptly sought follow-up care from Dr. Rosner" and (2) "the overall impression created by these witnesses (and thus communicated to the jury) is that Mrs. Justus had an obligation to return specifically to Dr. Rosner; and that, by failing to do so, she allowed her...

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