Smith v. Polsky

• Citation: 796 S.E.2d 354,251 N.C.App. 589
• Decision Date: 17 January 2017
• Docket Number: No. COA16-605,COA16-605
• Court: Court of Appeal of North Carolina (US)
• Parties: Walter Calvert SMITH, Plaintiff, v. Stewart POLSKY, M.D., Carolina Urology Partners, PLLC, and Lake Norman Urology, PLLC, Defendants.

251 N.C.App. 589

796 S.E.2d 354

Walter Calvert SMITH, Plaintiff,

v.Stewart POLSKY, M.D., Carolina Urology Partners, PLLC, and Lake Norman Urology, PLLC, Defendants.

No. COA16-605

Court of Appeals of North Carolina.

Filed: January 17, 2017

Homesley, Gaines, Dudley & Clodfelter, LLP, Statesville, by Edmund L. Gaines and Christina Clodfelter, for plaintiff-appellee.

Parker Poe Adams & Bernstein LLP, Charlotte, by Chip Holmes and Bradley K. Overcash, for defendants-appellants.

ZACHARY, Judge.

Stewart Polsky, M.D., Carolina Urology Partners, PLLC, and Lake Norman Urology, PLLC (defendants) appeal an order denying certain portions of their pretrial motion in limine . For the reasons that follow, we dismiss defendants’ appeal as interlocutory.

I. Background

Plaintiff Walter Smith (Smith) became a paraplegic in 1975 when he suffered a spinal cord injury in a motor vehicle accident. In 1995, Smith underwent the implantation of an inflatable penile prosthesis, which malfunctioned and ceased operating in 2008. Dr. Polsky became Smith's urologist in 2005. On 25 August 2009, Dr. Polsky performed penile prosthesis revision surgery on Smith, a procedure that involved removing the original inflatable penile prosthetic device and replacing it with a new one.

Following the procedure, Smith experienced pain and swelling at the surgical site, and he was eventually hospitalized on 19 September 2009. Dr. Polsky examined Smith at the hospital, diagnosed him with a "possible scrotal infection," and prescribed three antibiotics. The antibiotics Gentamicin, Vancomycin, and Ceftriaxone were administered intravenously. After being discharged from the hospital on 23 September 2009, Smith was instructed to continue taking the three antibiotics intravenously, and Advanced Home Care, Inc. (Advanced Home Care) provided and administered the medications. Smith received his last dose of Gentamicin—which is known to cause bilateral vestibulopathy, a condition caused by damage to one's inner ears that results in imbalance and impaired vision—on 9 October 2009. Shortly thereafter, Smith was diagnosed with bilateral vestibulopathy. Smith had the infected, replacement penile prosthesis surgically removed approximately three years later.

In February 2011, Smith filed for Chapter 7 Bankruptcy. On 21 August 2012, the trustee of Smith's bankruptcy estate filed a complaint in Iredell County Superior Court against Dr. Polsky, his medical practice, and Advanced Home Care. The complaint alleged numerous theories of medical negligence arising out of the surgical care as well as the prescription and monitoring of the post-surgery antibiotic therapy that Smith received from August through October of 2009. Pertinent to this appeal, the complaint alleged that once Smith was diagnosed with a scrotal (or superficial wound ) infection on 19 September 2009, Dr. Polsky was negligent in choosing to prescribe antibiotic therapy instead of surgically removing the infected penile prosthesis. All claims against Advanced Home Care were eventually settled and dismissed, and a portion of the settlement proceeds were used to satisfy the claims of Smith's bankruptcy estate. As a result, Smith was substituted as plaintiff against Dr. Polsky and his practice, the remaining defendants in the medical negligence action.

In May 2014, defendants filed a Motion for Summary Judgment, or in the alternative, Motion for Partial Summary Judgment. However, before the trial court ruled on defendants’ motion, the parties entered into a Voluntary Dismissal with Prejudice and Stipulation (the Dismissal). Pursuant to the Dismissal, Smith dismissed with prejudice the claims contained in Paragraph 41, subparagraphs (d) through (k) of his complaint, which alleged the following theories of negligence:

(d) Having decided to initiate antibiotic therapy on September 19, 2009, Defendant Dr. Polsky breached the standard of care by choosing the antibiotic gentamicin as opposed to choosing other more efficacious and less risky agents.

(e) Having decided to administer gentamicin, Dr. Polsky failed to communicate to the hospital pharmacists the severity of the infection, and whether he was employing gentamicin as a primary or synergistic agent.

(f) Having decided to administer gentamicin, Dr. Polsky failed to adequately inform himself of what parameters would be applied by the hospital pharmacists in calculating "gentamicin daily dosing per pharmacy."

(g) Having decided to administer gentamicin, Dr. Polsky failed to select a proper dose of gentamicin for the target infection assuming that it required treatment for more than 3-5 days.

(h) Having decided to administer gentamicin, Dr. Polsky failed to prudently balance the probability of success with antibiotic treatment against the extremely high likelihood that bilateral vestibulopathy would result from the prolonged administration of 7 mg/kg/day of gentamicin.

(i) Having decided to administer gentamicin, Dr. Polsky failed to order renal function testing with sufficient frequency to detect rapidly deteriorating renal function. This violation continued throughout the period of gentamicin administration as changes in renal function were noted. Defendant Dr. Polsky breached the standard of care when he failed to discontinue gentamicin immediately on October 1, 2009, when excessive gentamicin and vancomycin trough levels were obtained in conjunction with an increased serum creatinine.

(j) Defendant Dr. Polsky breached the standard of care when he failed to discontinue gentamicin immediately on October 6, 2009, when excessive gentamicin and vancomycin trough levels were obtained in conjunction with an increased serum creatinine.

(k) His care was also deficient in other respects as may be discovered in the prosecution of this action.

The Dismissal also required Smith to file an amended complaint, and he did so on 3 September 2014. Smith further stipulated that the "only remaining theories of negligence alleged against [d]efendants ... [were] enumerated in Paragraph 32, subparagraphs (a) through (c)" of his amended complaint, which read:

(a) Defendant Dr. Polsky breached the standard of care by failing to utilize a multiple wound irrigation technique at the time of the AMS 700 reimplantation on August 25, 2009.

(b) On or about September 19, 2009, Defendant Dr. Polsky breached the standard of care by failing to remove the previously placed reservoir and attached tubing, along with the AMS 700 device which was implanted on August 25, 2009.

(c) Defendant Dr. Polsky breached the standard of care by initiating antibiotic treatment for the infected prosthetic device on September 19, 2009. The risk of Dr. Polsky's prescribed long term therapy greatly outweighed the extremely unlikely potential reward of salvaging the device.

In exchange for Smith's promises to dismiss the above-mentioned theories of negligence and file an amended complaint, defendants agreed and stipulated that material issues of fact remained concerning Smith's surviving negligence claims.

Smith and defendants both filed pretrial motions between November and December of 2015. Defendants’ motion in limine No. 1 requested that the trial court exclude

[a]ny evidence and/or argument related to any theories of liability that Dr. Polsky was negligent in any manner for the selection and/or use of the antibiotic Gentamicin, including but not limited to: (1) the decision not to choose any alternative antibiotic; (2) testimony or evidence relating to the individual toxicity characteristics of Gentamicin ; (3) that the "prolonged" use of Gentamicin was negligent; and (4) evidence related to the "synergistic" effect of the antibiotics as those claims have been Dismissed, with Prejudice, by the Plaintiff.

The trial court held a hearing on the parties’ pretrial motions on 21 December 2015. At the hearing, defendants argued that while Smith could present evidence that "any antibiotic treatment would not have helped [him] because the only [prudent] decision [was] the surgical removal," he could not contend that Dr. Polsky was negligent in choosing, administering, dosing, or monitoring the antibiotic Gentamicin.

In contrast, Smith argued that not allowing him to explain the risks of the Gentamicin treatment "would be to hamstring ..., prevent us from being able to give the jury the rest of the story." Smith's position was that the term "initiating antibiotic therapy" in Paragraph 32, subparagraph (c) of his amended complaint included and preserved claims that Dr. Polsky was negligent in prescribing the long-term use of Gentamicin.

Defendants responded by asserting that all negligence claims concerning the specific, prolonged use of Gentamicin to treat Smith's infection had been dismissed with prejudice. According to defendants, the Dismissal acted as a prior adjudication on the merits as to those claims, and all subparts of defendants’ motion in limine should have been granted pursuant to the doctrine of res judicata.

In an order entered 8 March 2016, the trial court denied defendant's motion in limine No. 1, subparts (1) through (3), and granted defendants’ motion as to subpart (4). Defendants appeal.

II. Standard of Review

It is well established that

[a] motion in limine seeks pretrial determination of the admissibility of evidence proposed to be introduced at trial, and is recognized in both civil and criminal trials. The trial court has wide discretion in making this advance ruling.... Moreover, the court's ruling is not a final ruling on the admissibility of the evidence in question, but only interlocutory or preliminary in nature. Therefore, the court's ruling on a motion in limine is subject to modification during the course of the trial.

Heatherly v. Indus. Health Council , 130 N.C.App. 616, 619, 504 S.E.2d 102, 105 (1998) (internal citations and quotation marks omitted). When this Court reviews a decision to grant or deny a motion in limine , the determination will not be reversed absent a showing that the trial court abused its...