McCourt By and Through McCourt v. Abernathy, 24242

Citation318 S.C. 301,457 S.E.2d 603
Decision Date08 December 1994
Docket NumberNo. 24242,24242
CourtUnited States State Supreme Court of South Carolina
Parties. Glenn ABERNATHY, M.D., J.D. Clyde, M.D., Family Medicine Associates, P.A., Appellants. Supreme Court of South Carolina. Heard

Cary C. Doyle, Anderson, G. Dewey Oxner, Jr. and Sally McMillan, Haynsworth, Marion, McKay & Guerard, Greenville, for appellants.

Michael E. Spears, Spartanburg, for respondent.

SHAW, Acting Associate Justice:

Respondent, Steven McCourt, as personal representative of the estate of his wife, Wendy Marie McCourt, brought wrongful death and survival causes of action against appellants, Glenn Abernathy, M.D., J.D. Clyde, M.D., and Family Medicine Associates, P.A. The jury returned a verdict in favor of respondent for both actual and punitive damages against Dr. Abernathy and Dr. Clyde. The doctors appeal the denial of their motions for new trial and new trial nisi. We affirm.

FACTS

The record discloses as follows. Twenty-three year old Wendy McCourt first sought treatment from the appellants in December, 1987. At that time, Dr. Abernathy obtained a history from Wendy revealing past liver problems and subsequently sought medical records from Dr. Truss, who had been Wendy's treating physician in Alabama. On Wednesday or Thursday, March 9 or 10, 1988 Wendy was injured while working with horses. There is evidence Wendy was seen by Dr. Abernathy in his office at that time and was treated for a pulled muscle. 1 On Sunday The following day, March 14, Wendy's condition became significantly worse and she again sought treatment at the emergency room. She was examined by an emergency room physician who ran some blood tests. This physician indicated an immediate need to admit Wendy to the hospital. He telephoned Dr. Abernathy and was given permission to admit Wendy. At 6:30 that evening, Dr. Abernathy examined Wendy and observed the injured finger, for which he prescribed Keflex, an oral antibiotic.

                March 13, her condition worsened and Wendy went to the Anderson Memorial Hospital emergency room.   She was experiencing greater pain and had difficulty breathing.   Dr. Clyde examined Wendy at that time and treated her for a pulled chest muscle.   There is evidence Dr. Clyde treated the puncture wound to Wendy's finger at that time. 2  She was given prescriptions for Motrin and Co-Tylenol.   She returned to her home
                

At 9:00 the following morning, both Dr. Abernathy and Dr. Clyde saw Wendy while making rounds at the hospital. By that time, Wendy's condition had worsened yet more and the doctors consulted Dr. Kovaz, an internist. Although appellants requested a consult from Dr. Kovaz, they did not express any urgency in his seeing her. After examining Wendy, Dr. Kovaz immediately moved her to the intensive care unit with a diagnosis of sepsis, a bacterial infection. Although treatment with intravenous antibiotics was begun at that time, her condition continued to deteriorate. Over the next 4 days, her skin began to slough off, her eyes filled with blood, her feet turned black, she bled from her nose, mouth and pores, and she became bloated beyond recognition. On March 19, 1988, Wendy McCourt died from beta strep septicemia with multiple organ system failure secondary to the sepsis.

Respondent presented expert testimony from Dr. Neal Craine and Dr. Kenneth DeHart. Dr. Craine stated Wendy's illness was caused by "an unfortunate circumstance where transient bacteria in the bloodstream landed in an area already traumatized by the injury with the horse." He testified, assuming, as the "Death Summary" indicates, Dr. Abernathy saw Wendy on the 9th, she had a puncture wound to the finger and it was known she was working around horses, he should have put her on preventive antibiotics on that day. He stated it would also have been below the standard of care for Dr. Clyde to have observed an infected finger on the 13th and not treat her with antibiotics nor order laboratory tests. He stated he felt Wendy had a 100% chance of survival on the 13th had she been started on antibiotics at that time. Based on the test results received on the afternoon of the 14th, he stated that a doctor should know the patient was seriously ill and should have suspected sepsis. He concluded Wendy's life could have been saved if antibiotics had been started on the 9th, which would have prevented or treated an early infection of the finger. He also stated, more likely than not, Wendy could have been saved on the 13th by treatment with antibiotics as well as on the 14th with aggressive antibiotic therapy. He stated it was also below the standard of care to wait until the 15th to call in a specialist.

Dr. DeHart likewise testified, assuming Wendy presented with an infected finger on the 9th, failure to treat that prophylactically fell below the standard of care. He stated, assuming Wendy presented with an infected finger on the 13th, Dr. Clyde's treatment fell below the standard of care by failing to order lab tests, failing to immobilize the finger, and in failing to start antibiotics. As to Dr. Abernathy's treatment on the 14th, he testified it was "profoundly below the standard of care", not because he missed the diagnosis, but because he failed to order aggressive observation and failed to request consultation intervention.

This matter was tried to a jury and on January 7, 1993 the jury returned the following verdicts for appellant:

(1) Wrongful death action: Actual damages--$200,000 against Dr. Abernathy and $100,000 against Dr. Clyde; Punitive damages--$500,000 against Dr. Abernathy and $250,000 against Dr. Clyde.

(2) Survival action: Actual damages--$500,000 against Dr. Abernathy and $250,000 against Dr. Clyde; Punitive damages--$500,000 against Dr. Abernathy and $250,000 against Dr. Clyde.

TOTAL VERDICTS: $2,550,000

On appeal, the appellants contend the trial judge erred in (1) denying their motions for a new trial based on the failure of the court to charge several requested jury instructions; (2) denying their motions for new trial absolute or new trial nisi based on the excessiveness of the verdict; and (3) denying their motions for a new trial on the grounds their due process rights were violated.

FAILURE TO CHARGE

Appellants first contend the trial judge erred in failing to charge several jury instructions relating to mistake in diagnosis or error in judgment in a medical malpractice cause of action. 3 We disagree. We first note the appellant either cites no case law either from South Carolina or other states to support the specific requested charges, or the South Carolina case law cited does not support the language sought to be included in the charge. The trial judge is required to charge only the current and correct law of South Carolina. State v. Robinson, 306 S.C. 399, 412 S.E.2d 411 (1991). Further, we note the requested charges may have a tendency to confuse the jury. Some of the charges imply to the jury that an error in judgment is actionable only if made in bad faith. Such an instruction would impose an unrealistic burden on the plaintiff to prove the doctor's judgment was rendered with less than good faith.

Finally, the appellants assert all of the charges stand for the proposition that a physician is not liable for a mistake in diagnosis or error in judgment if he acts within the appropriate standard of care. To warrant reversal for refusal to give a requested instruction, the refusal must have not only been erroneous, but prejudicial as well. Sherer v. James, 286 S.C. 304, 334 S.E.2d 283 (Ct.App.1985), rev'd on other grounds, 290 S.C. 404, 351 S.E.2d 148 (1986). Refusal to give a properly requested charge is not error if the general instructions are sufficiently broad to enable the jury to understand the law and the issues involved. Waldrup v. Metropolitan Life Ins. Co., 274 S.C. 344, 263 S.E.2d 652 (1980).

In instructing the jury on the burden of proof of the plaintiff and the standard of care required of the defendants, the trial judge gave the following relevant charges.

The material elements of a medical malpractice action require the plaintiff to ....

prove to your satisfaction as jurors by the greater weight or preponderance of the evidence and present evidence of the generally recognized practices and procedures which would be exercised by ordinary competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances, and then to present evidence that a defendant doctor negligently departed from those recognized and generally accepted standards, practices, and procedures in the manner alleged by the plaintiff; and, in addition, to proving that a physician was in some way negligent, the plaintiff must also prove that a physician's negligence was a proximate cause of the plaintiff's injuries and/or death.

The mere fact that the plaintiff's expert may use a different approach is not considered a deviation from the recognized standard of medical care. Nor is the standard violated because the expert disagrees with a defendant as to what is the best or better approach in treating a patient. Medicine is an inexact science, and generally...

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