SCOTT EX REL. SCOTT v. Porter

• Decision Date: 10 April 2000
• Docket Number: No. 3149.,3149.
• Citation: 530 S.E.2d 389,340 S.C. 158
• Court: South Carolina Court of Appeals
• Parties: Lance SCOTT, deceased by and through his Personal Representative, Lynn SCOTT, Respondent, v. Jan PORTER, M.D., Richard Bannon, M.D. and Foothills Family Medicine Center, P.A., of whom Jan Porter, M.D. and Foothills Family Medicine Center, P.A. are, Appellants.

340 S.C. 158

530 S.E.2d 389

Lance SCOTT, deceased by and through his Personal Representative, Lynn SCOTT, Respondent, v. Jan PORTER, M.D., Richard Bannon, M.D. and Foothills Family Medicine Center, P.A., of whom Jan Porter, M.D. and Foothills Family Medicine Center, P.A. are, Appellants.

No. 3149.

Court of Appeals of South Carolina.

Heard February 10, 2000.

Decided April 10, 2000.

Rehearing Denied May 27, 2000.

Harold W. Jacobs, of Nexsen, Pruet, Jacobs & Pollard, of Columbia; Ashby W. Davis and Steven A. Snyder, both of Donnan, Morton, Davis & Snyder, of Greenville, for appellants.

Michael E. Spears, of Spears & Howell; Gerald G. Wilson; and Rodman C. Tullis, all of Spartanburg, for respondent.

HEARN, Chief Judge:

Jan Porter, M.D. (Porter) and Foothills Family Medicine Center, P.A. appeal from a jury verdict finding Porter negligent in the death of her patient, 19-month old Lance Scott. The jury awarded Lynn Scott, Lance's mother and Personal Representative, six hundred thousand dollars in actual damages and 1.5 million dollars in punitive damages in the survival action, and 1.5 million dollars in actual damages and two million in punitive damages in the wrongful death action. Porter raises two issues on appeal: 1) that the verdict should be reversed because of an alleged inflammatory closing argument; and 2) that the damages awarded were the result of passion, partiality, and prejudice. We affirm.

FACTS

In December 1992, Lance Scott, then fourteen months old, experienced two febrile seizures.¹ A CAT scan and EEG performed on Lance revealed no abnormality. After being discharged, Lynn took Lance to a follow-up appointment with a neurologist. The neurologist examined Lance and concluded he was fine. Lance had no significant medical problems until June of 1993. On the morning of June 2, 1993, Lance again had a seizure. Lynn accompanied Lance to Mary Black Hospital in an ambulance. At the hospital, Lance became nauseated and threw up several times in the x-ray room. Lab tests revealed Lance's serum sodium level was in the low range. In contrast to the December seizures, these were not the result of a fever. Finding no cause for the seizures, the hospital released Lance and arranged for him to see Dr. Porter in her office that afternoon.

At Dr. Porter's office, Lance went into another seizure. When the seizure did not appear to be subsiding on its own, Porter administered medication to stop it and decided to admit Lance to Spartanburg Regional Hospital.

At Spartanburg Regional Lance was given an IV of one quarter normal saline at 10 ccs an hour per Porter's orders. Spartanburg Regional repeated the same lab work performed earlier in the day at Mary Black Hospital. These tests also revealed Lance's sodium level was low. However, Porter did not believe Lance's low sodium levels were clinically significant.

In the IV room at Spartanburg Regional, Lance had another seizure. The hospital called Porter who approved an antiseizure drug to be added to Lance's IV. Porter then increased Lance's IV fluid rate to 40 ccs an hour. On its own initiative, the nursing staff at the hospital placed Lance on an apnea bradycardia (AB) monitor which would alert the staff if Lance stopped breathing during a seizure.

Lance did not have any more seizures after approximately 7:00 p.m. However, Lance whined and became restless, pulling at his monitors, sheets and bed. Toward morning Lance was combative and unconsolable. He fought Lynn when she tried to hold him. At some point Lance stated "Mommy, I no feel good. Hold me."

Lynn summoned the nurses and told them she was worried about Lance's behavior and thought he might be on the verge of having another seizure. The nurse assured her Lance's behavior was normal. When Porter arrived to see Lance around 8:30 a.m., Lance did not seem to recognize his mother. Lynn asked if the medicine could be causing Lance's uncharacteristic combative behavior. Porter indicated it could and informed Lynn that Lance would be sent down for a CAT scan sometime that morning and they would know more after that. A student nurse and transport technician later arrived and took Lance for an EEG and CAT scan around 9:15 a.m. Before Lance left the room, the nurses disconnected his AB monitor.

While in the CAT scanner, Lance stopped breathing. Emergency room pediatrician Dr. Lucy Foxworth ran to the CAT scanner, intubated Lance, and put him on a ventilator. Foxworth ordered an arterial blood gas test. When it came back, it also listed Lance's sodium level as unusually low. Foxworth ordered that the sodium test be repeated to check for an error. When the test came back the second time, it showed Lance's sodium level as 120. Foxworth ordered a three percent saline solution for Lance and transferred him to Greenville Memorial's pediatric intensive care unit. By 3:15 that day, Lance's brain had swollen to the point it was too badly damaged for him to survive. Lance remained in a coma until his death on June 18. This lawsuit ensued.

Plaintiff's expert, Dr. Allen Arieff, a specialist in hyponatremia, testifed Lance died as a result of his already low blood sodium level being further diluted by the quarter normal sodium IV solution. This resulted in water passing into his brain causing it to swell. The swelling brain compressed the nerves responsible for breathing. Another expert witness offered by the plaintiff, Dr. Duaine Murphee, concurred.

Arieff stated Porter breached the standard of care by failing to monitor Lance's blood sodium level after placing him on the dilute IV fluid. He further testified Lance could have been saved by simply turning off the IV before he stopped breathing.

The cases were submitted to the jury.² The jury found Porter negligent and awarded actual and punitive damages against her and Foothills Family Medicine Center, P.A. in both cases. After the verdicts, Porter moved for a new trial absolute on the ground that the verdict was grossly excessive. The court denied the motion. This appeal results.

LAW

I. CLOSING ARGUMENT

Porter first argues the verdict should be reversed because of an alleged inflammatory closing argument which invited jurors to send a message which would put Spartanburg on the map and which "heaped abuse and scorn on defendant and her expert witnesses." Specifically, Porter refers to the following portions of the closing argument as being abusive:

Well I would like to know what the jury thinks about the real world because you have seen a real microcosm, a real picture here of what the real world is. And I think it comes from the nurses, and I think it comes from the experts who have been genuine and honest with you. And I think you have seen a sorted (sic) side of that world from another contingent of people. I could sit here and contend with you for a very long period of time to the many different ways you know you've seen.

* * * * * *

I don't know if you have ever heard about it or not, but there was a story about this particular child molester, multiple child molester, (sic) got out of jail and went to this particular neighborhood, and the authorities didn't let anyone know that he moved out of jail and into this quiet little neighborhood. And he took a girl and he did the same thing again. And they call that Megan's Law.

They passed a law as a result of that so that all child offenders from then on would have to give their locations, and people in the neighboring areas would have to know that the child molester was there because who knows what man moves next door to you and has cute little bunnies that attract little children or gives them candy or whatever and maybe you just think he's nice. If you knew he was a child molester, (sic) you would have been told, you wouldn't dare let your child go over there.

Well, we will never forget Megan. Her life ended, but we will never forget her because of Megan's case, Megan's Law. I want to create Lance's Law because of a much bigger reason than just those four things. I want to create Lance's Law so that whatever exotic location doctors are teaching each other continuing medical education, whether it's Acapulco, Miami, or wherever and whatever medical school they are in, every time someone on the program will spend thirty minutes to an hour saying, I want to bring you up to date on Lance's Law.

* * * * * *

Let me turn to this chart. I have seen this chart coming all throughout the case and you all have too. Each witness that came up—it seems to be significant to Mr. Davis that he can write down thousands of children that these people have seen, and they all say they have never seen hyponatremia cause cerebral edema in a child. And that's supposed to be a big point somehow or another for you all.

Ladies and gentlemen, isn't the reason that that's (sic) the case is because like Dr. Tecklenburg says, (sic) If you take a thousand residents with a thousand children who had 131 or 130 sodium they're not going to give a quarter normal saline. Yes, very luckily these people are not going to see hyponatremia induced by hypotonic dilute solution of quarter normal saline because every human who's been to medical school knows not to do it.

And if there are a few fools left who would do it, they check it the next morning to see if it's hurt the child, and when they find out that it's lowered they stop it. That's it; that's why you don't see it. It's kind of like you don't see people with scalpels sticking out of their eyeballs coming out of surgery. Doctors don't do that, and that's why they haven't seen it.

Porter argues that plaintiffs counsel's argument "equated Dr. Porter's treatment of decedent with the actions of a serial child molester." Porter also interprets the statement by plaintiffs counsel, "And if there are a few fools left who would do it, they check it the next morning to see if its hurt the child, and when they find out its lowered it[,] they stop it." as equating her to a fool.

We initially note Porter...