Sherrod v. NASH GENERAL HOSP., INC.

• Decision Date: 09 July 1998
• Docket Number: No. 387A97.,387A97.
• Citation: 500 S.E.2d 708
• Parties: Bettie B. SHERROD, Administratrix of the Estate of Sylvia Birth, Deceased v. NASH GENERAL HOSPITAL, INC., and Kenneth C. Thompson, Jr.
• Court: North Carolina Supreme Court

500 S.E.2d 708

Bettie B. SHERROD, Administratrix of the Estate of Sylvia Birth, Deceased v. NASH GENERAL HOSPITAL, INC., and Kenneth C. Thompson, Jr.

No. 387A97.

Supreme Court of North Carolina.

July 9, 1998.

Leland Q. Towns, Wilson, for plaintiff-appellant and -appellee.

Baker, Jenkins, Jones & Daly, P.A. by Kevin N. Lewis, Ahoskie, for defendant-appellant and -appellee Thompson.

LAKE, Justice.

This is a medical malpractice case which presents two issues for determination: first, whether the Court of Appeals erred in holding that plaintiff's appeal was timely filed; and second, whether the trial court committed prejudicial error by ruling in the presence of the jury that defendant Thompson was accepted by the court as an expert and would be allowed to testify as an expert witness in the field of general psychiatry.

The Court of Appeals held that plaintiff's appeal was timely filed, and the majority held that the trial court did not commit reversible error when, in the presence of the jury, it declared defendant Thompson to be an expert witness. This Court allowed defendant Thompson's petition for discretionary review as to the notice of appeal issue, and plaintiff appeals from the dissent below on the expert witness issue. For the reasons hereinafter stated, we affirm the Court of Appeals' holding that plaintiff's appeal was timely filed, and we reverse as to its conclusion on the second issue that the trial court did not commit prejudicial error in declaring, in the presence of the jury, the expertise of the witness.

In this case, the plaintiff brought suit on behalf of the estate of Sylvia Birth against both Nash General Hospital, Inc. (NGH) and Kenneth C. Thompson, Jr. The complaint asserted five specific allegations of negligence against defendant hospital and seven specific allegations of negligence against defendant Thompson and asserted that the negligence of each defendant was a proximate cause of the death of Sylvia Birth.

The record reflects the following evidence was before the trial court. On 30 August 1990, the deceased, sixty-five-year-old Sylvia Birth, was admitted to NGH upon the recommendation of her primary treating physician, Dr. Kenneth C. Thompson, Jr. Ms. Birth had stopped eating and sleeping, and her behavior had become erratic. Prior to her arrival at NGH, Ms. Birth had been taking the following prescribed medications: 100 milligrams of Imipramine a day; 20 milligrams of Diazepam (Valium) a day; and 40 milligrams of Propranolol (Inderal) twice daily. After Ms. Birth's admission at NGH, Dr. Thompson prescribed Haldol, 5 milligrams; Ativan, 1 milligram; and Diazepam, 5 milligrams twice a day and 10 milligrams at bedtime. He continued her Imipramine, increasing her dosage to 150 milligrams, and increased Inderal to 80 milligrams twice a day. Additionally, he prescribed Mellaril, 50 milligrams by mouth, every eight hours and then as needed; Haldol, 2 milligrams; and Ativan, 1 milligram every four hours as needed.

During Ms. Birth's seventeen-day stay at NGH, her physical and mental condition worsened, and she became increasingly confused, agitated, disoriented and delusional. Ms. Birth was often placed in physical restraints, as she was combative and moved continuously. Dr. Thompson did not order diagnostic tests or consult with any other medical specialist. On 15 September 1990, Ms. Birth was transferred, pursuant to Dr. Thompson's orders, by a deputy sheriff from NGH to Cherry Hospital in Goldsboro. Ms. Birth died on 16 September 1990.

At trial, one of plaintiff's expert witnesses, Dr. Thomas Clark, testified that he performed an autopsy on Ms. Birth and first concluded that she died from Imipramine poisoning but later concluded that multiple drug overdoses caused her death. Dr. Clark also testified that the manner of death was suicide based on his opinion that the drugs in her blood were elevated beyond what he thought she could reasonably have expected to get from taking the drugs in the amounts that were prescribed. Dr. K.N. Murthy testified as an expert that he admitted Ms. Birth at Cherry Hospital; that upon her arrival she was agitated, uncontrolled and disoriented; and that he ordered a physical examination and lab work and that all medications be withheld. Several witnesses from Cherry Hospital testified for plaintiff that while Ms. Birth was at Cherry Hospital, she did not receive any medications other than two doses of Ativan and that she did not bring any medications with her. Cherry Hospital records also indicated that Ms. Birth received no medication other than two doses of Ativan while at the hospital.

Dr. Harold C. Morgan, an expert for plaintiff, testified that, in his opinion, Dr. Thompson was negligent in his treatment of Ms. Birth in that he failed to exercise reasonable care and diligence in his care of Ms. Birth, that he failed to comply with the standard of care required by law, and that his negligence proximately caused Ms. Birth's death. Specifically, Dr. Morgan testified that Dr. Thompson failed to conduct adequate diagnostic work, overprescribed medication and improperly combined the same class of medication, failed to consult with other specialists, and failed to recognize that Ms. Birth was in a drug-induced delirium. Dr. Morgan also testified that it was unreasonable for Dr. Thompson to base his diagnosis of Ms. Birth on her past hospitalizations because Ms. Birth's 30 August 1990 hospitalization was different from previous hospitalizations. This testimony included the observation that in prior hospitalizations, in contrast to her last admission, Ms. Birth had responded quickly to medications and treatment, had shown auditory hallucinations, and had only been on a total of two or three different medications at lower dosages. William T. Sawyer, a licensed pharmacist and faculty member of UNC School of Pharmacy, and a board-certified pharmacotherapist, testified for plaintiff that Ms. Birth's drug overdose was likely caused by the accumulation of drugs administered during her stay at NGH.

Defendant NGH presented testimony tending to show that the care rendered by NGH nurses was within the standard of care as applied to nurses. Defendant Thompson presented several medical doctors who, in the presence of the jury, were tendered and accepted by the trial court as experts, and who then testified on behalf of defendant Thompson. Dr. Thompson testified extensively in his own behalf, as an expert, that his care of Ms. Birth complied with all generally accepted standards of care within the practice for psychiatrists, that he did not believe she was in a drug delirium, and that there were no signs of overmedication. He testified that there was nothing different about Ms. Birth's condition on 30 August 1990 upon her admission to NGH than in past admissions to the hospital. Dr. Thompson further testified that Ms. Birth ate better and took her fluids better than previously, and that he prescribed Mellaril to Ms. Birth despite her extreme sensitivity to this drug in the past. Additionally, Dr. Thompson testified that although he realized on 11 September 1990 that Ms. Birth was showing no improvement and that the medications were not helping, he did nothing different with respect to her treatment.

On 6 December 1995, the jury answered the liability issue in defendants' favor, finding neither defendant negligent in the death of the decedent. Plaintiff, in open court, orally moved that the verdict be set aside as contrary to the weight of the evidence and the law and for a new trial, which the trial court then orally denied. In so doing, the trial court stated that "under the new rules I believe civil litigants have thirty days in which to file post-trial motions and you may avail yourself of that rule." The trial court entered judgment in accordance with the jury's verdict. On 15 December 1995, plaintiff filed a written motion for a new trial, pursuant to Rule 59 of the Rules of Civil Procedure, contending that: (1) the jury disregarded the instructions by the trial court, (2) the verdict was contrary to the law and the weight of the evidence, (3) errors of law occurring at trial denied plaintiff a fair trial, and (4) there was juror misconduct. On 15 December 1995, plaintiff also filed a motion for a new trial based on delays and disruptions at trial. These motions were heard before Judge Louis B. Meyer who ruled, on 21 March 1996, that they should be dismissed and in the alternative denied. In denying these motions, Judge Meyer stated:

The hearing and rulings on these motions have absolutely nothing to do with your right of appeal and doesn't impede it in any way.... I think these matters that [are] included in your motions concerning the verdict being inconsistent with the evidence and contrary to the weight, ought to be handled on the appeal of the case.

On 27 March 1996, plaintiff filed notice of appeal from the verdict and judgment and the denial of her post-trial motions. On 16 April 1996, defendant Thompson, and on 18 April 1996, defendant NGH, moved to dismiss plaintiff's appeal for failure to timely file notice of appeal pursuant to Rule 3 of the Rules of Appellate Procedure. Plaintiff made a motion pursuant to Rule 60(b)(6) of the Rules of Civil Procedure to set aside Judge Butterfield's ruling denying plaintiff's oral motions. These motions were heard 9 September 1996 by Judge Howard E. Manning, Jr., who denied defendants' motions to dismiss the appeal and allowed plaintiff's motion. In so doing, the trial court stated that "plaintiff should be relieved from Judge Butterfield's ruling of December 6, 1995 denying plaintiff's oral Motion For A New Trial and Judgment Notwithstanding the Verdict because of the trial court's erroneous instruction regarding plaintiff's right to file written post-trial motions."

With respect to this first issue, Rule 3 of the North Carolina Rules of Appellate Procedure provides:

Appeal from a judgment or order in a

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