Justus v. Rosner

• Decision Date: 20 June 2017
• Docket Number: No. COA15-1196,COA15-1196
• Citation: 802 S.E.2d 142,254 N.C.App. 55
• Parties: Bruce JUSTUS as Administrator of the Estate of Pamela Jane Justus, Plaintiff, 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, Defendants.
• Court: North Carolina Court of Appeals

254 N.C.App. 55

802 S.E.2d 142

Bruce JUSTUS as Administrator of the Estate of Pamela Jane Justus, Plaintiff,

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, Defendants.

No. COA15-1196

Court of Appeals of North Carolina.

Filed: June 20, 2017

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

Wyrick Robbins Yates & Ponton LLP, Raleigh, by Tobias S. Hampson and K. Edward Greene, for defendant-appellants.

BRYANT, Judge.

Where the trial court was within its discretion to set aside the jury verdict on the ground it was grossly inadequate, we affirm in part the trial court order granting plaintiff relief; however, where the trial court acted outside its authority in altering the verdict and thereafter amending the judgment, we vacate the amended judgment and remand for a new trial on damages. Where defendant was not entitled to an instruction on contributory negligence, we affirm the trial court's directed verdict as to that defense. Where the trial court acted within its statutory and discretionary authority in awarding costs to plaintiff, we affirm.

On 21 October 2014, the Honorable Zoro Guice, Jr., Judge presiding in Henderson County Superior Court, entered judgment in accordance with jury verdicts finding defendant Michael J. Rosner, M.D. and Michael J. Rosner, M.D., P.A., negligent and liable to plaintiff Bruce Justus as Administrator of the Estate of Pamela Jane Justus.^{1 ,2} The jury found that plaintiff was entitled to recover $512,162.00 for personal injury, but that that amount should be reduced by $512,161.00 (resulting in a nominal $1.00 award) "because of Pamela Justus's unreasonable failure ... to avoid or minimize her damages." Within ten days, plaintiff filed a motion to alter or amend the judgment pursuant to N.C. R. Civ. P. 59(a)(5), (7) and Rule 59(e). On 3 March 2015, Judge Guice entered an order granting plaintiff's motion to amend the 21 October 2014 judgment and also a corresponding amended judgment which struck the jury's verdict on mitigation of damages and awarded plaintiff $512,162.00. Dr. Michael J. Rosner and Michael J. Rosner, M.D., P.A., appeal this order, the amended judgment, and an order awarding costs.³

_________________________

As the 3 March 2015 order and amended judgment from which defendant appeals contain relevant facts (and procedural history), we set them out herein in relevant part:

FINDINGS OF FACT

1. On June 12, 2003, Plaintiffs [sic] filed [this] action alleging medical malpractice by Defendant Michael J. Rosner, M.D.

2. The charges of medical malpractice against Dr. Rosner ar[o]se from his performance of two neurosurgical procedures

on decedent Pamela Jane Justus.

....

4. The following evidence was presented at trial and was uncontroverted:

a. On June 27, 2000, Dr. Rosner performed a laminectomy on Pamela Justus.^[4

^]

b. On February 6, 2001, after Mrs. Justus reported increased pain, Dr. Rosner performed a second surgery

(a laminectomy

, craniectomy /craniotomy, tonsillar resection, and placement of a bovine pericardium).

c. Mrs. Justus last saw Dr. Rosner on March 21, 2001.

d. On May 29, 2001, in response to her report of severe pain, nausea and other post-operative symptoms, Dr. Rosner's office advised Mrs. Justus to return to see Dr. Rosner for a repeat MRI and re-evaluation, but she declined, stating that she was afraid to come back to Dr. Rosner again, and also that she lacked insurance because her husband had been laid off from work.

e. Thereafter, Mrs. Justus repeatedly consulted with physicians in an effort to obtain treatment for her continuing neck, head and back pain. For example, she saw Dr. Charles Buzzanell in July and August 2001; a neurologist at Wake Forest University Baptist Medical Center in August and September 2001; Dr. Lesco Rogers on September 25, 2001; Dr. Shashidhar Kori at Duke University Medical Center on September 25, 2001, and neurosurgeon Dr. Regis Haid from November 2003 through January 2004.

f. In February 2004, Mrs. Justus visited Carolina Neurosurgery and Spine Associates in Charlotte, North Carolina, for corrective surgery; and, in April 2004, she had surgery done to correct her inability to support her head.

g. On numerous occasions from 2004 through 2011, Mrs. Justus sought and received further medical care related to her head and neck.

h. In late 2011, Mrs. Justus had another corrective back and neck surgery performed

by Dr. Coric of Carolina Neurosurgery

and Spine Associates.

i. Mrs. Justus died on September 20, 2012.

5. Dr. Rosner contended at trial that Mrs. Justus unreasonably failed to mitigate her damages.

6. To support the foregoing defense, Dr. Rosner called four neurosurgical experts (Drs. Michael Seiff, Donald Richardson, Peter Jannetta, and Konstantin Slavin) to testify on his behalf.

7. These neurosurgical experts testified that Mrs. Justus’ condition could have been ameliorated had she promptly sought follow-up care from Dr. Rosner.

8. Based upon the Court's opportunity to observe the evidence as it was presented and the attendant circumstances, together with the demeanor of Dr. Rosner's neurosurgical experts and considering all of their testimony in context, this Court finds that 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 condition to worsen.

9. That Dr. Rosner elicited this testimony from four different experts, moreover, intensified its cumulative impact upon the jury.

10. There was no evidence presented that [Mrs.] Justus unreasonably delayed trying to have her problems diagnosed and corrected.

11. On the contrary, her attempts to mitigate her damages were reasonable and all that could be expected.

12. Given the uncontested evidence that [Mrs.] Justus promptly and persistently made diligent efforts to obtain treatment from other physicians after she terminated her relationship with Dr. Rosner, no reasonable person could conclude that she failed to exercise reasonable care to mitigate her damages.

13. Nevertheless, Dr. Rosner's mitigation defense was submitted as Issue # 12 to the jury.

14. On September 24, 2014, the jury returned a verdict on [sic] favor of Plaintiffs against Dr. Rosner.

15. The jury found that Mrs. Justus sustained damages in the amount of Five Hundred Twelve Thousand One Hundred Sixty-[Two] Dollars ($512,16[2].00).

16. The foregoing sum reflected only Mrs. Justus’ medical bills; it included no damages for pain and suffering.

17. Based upon its finding in Issue # 12 that Mrs. Justus had unreasonably failed to mitigate her damages, the jury reduced the foregoing damage award to One Dollar ($1.00).

18. Given the uncontroverted evidence that Mrs. Justus experienced severe pain and suffering (e.g., nausea, tremors, and imbalance) as a result of the procedures performed by Dr. Rosner, and that, even had she allowed Dr. Rosner to continue to treat her, she would have endured at least some of these symptoms, the jury's finding of no damages for pain and suffering is inadequate.

19. In addition, given the absence of evidence that Mrs. Justus unreasonably failed to mitigate her damages, the damage award as reduced by the jury's finding on Issue # 12 is inadequate for that reason as well.

20. Furthermore, the amount of the jury's mitigation finding—i.e., that Mrs. Justus’ condition was almost entirely her own fault (except for $1.00)—vastly exceeds, and is grossly disproportionate to, the extent to which, according to Dr. Rosner's neurosurgical experts, her condition could have been ameliorated had she timely sought follow-up care.

....

CONCLUSIONS OF LAW

1. Patients have no legal obligation to seek medical treatment from any particular health care provider.

2. Mrs. Justus therefore had no duty to return to Dr. Rosner, rather than to other health care providers.

3. The testimony by Dr. Rosner's neurosurgical experts suggesting that Mrs. Justus had a duty to return specifically to Dr. Rosner was inaccurate and misleading.

4. The misleading effect of the foregoing testimony was compounded by its repetition from four different expert witnesses.

5. Dr. Rosner presented no legally competent evidence sufficient to support a finding that Mrs. Justus unreasonably failed to mitigate her damages.

6. This Court committed prejudicial error in submitting Issue # 12 [ (mitigation of damages defense) ] to the jury.

7. The jury's $1.00 damage award is manifestly inadequate.

8. The jury appears to have made its initial damage finding ($512,16[2].00) under the influence of passion or prejudice, for the finding entirely omits any sum for pain and suffering despite the uncontroverted evidence that Mrs. Justus experienced severe pain and suffering.

9. The jury also appears to have reduced its damage finding ($512,161.00) under the influence of passion or prejudice; specifically, the cumulative impact of misleading testimony from multiple experts.

10. Even aside from the lack of evidence to support any mitigation finding at all, the influence of passion or prejudice is further manifested in the grossly excessive amount of the jury's mitigation finding.

Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore ORDERED, ADJUDGED AND DECREED as follows:

1. Plaintiffs’ Motion to Alter or Amend Judgment is hereby GRANTED.

2. The judgment entered on October 21, 2014 is hereby AMENDED by changing the amount of damages from One Dollar ($1.00) to Five Hundred Twelve Thousand One Hundred Sixty-Two Dollars ($512,162.00).

Following the detailed order granting plaintiff's motion to amend, the trial court entered an amended judgment. The amended judgment reads, in relevant part, as follows:

Pursuant to the Court's "Order Granting Plaintiff's Motion To Alter or Amend Judgment", the Judgment entered on October 21, 2014

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