Wall v. Stout, 247PA83

• Decision Date: 02 February 1984
• Docket Number: No. 247PA83,247PA83
• Citation: 311 S.E.2d 571,310 N.C. 184
• Court: North Carolina Supreme Court
• Parties: J. Garfield WALL v. Charles W. STOUT. Betsy W. SANDERS, Guardian ad Litem for Marie L. WALL v. C.W. STOUT.

Page 571

311 S.E.2d 571

310 N.C. 184

J. Garfield WALL v. Charles W. STOUT.

Betsy W. SANDERS, Guardian ad Litem for Marie L. WALL v. C.W. STOUT.

No. 247PA83.

Supreme Court of North Carolina.

Feb. 2, 1984.

McCain & Essen by Grover C. McCain, Jr., and Jeff Erick Essen, Chapel Hill, and Watkins, Finch & Hopper by William L. Hopper, Oxford, for plaintiffs-appellants.

McLeod & Senter by Joe McLeod and William L. Senter, Fayetteville, Amicus Curiae, North Carolina Academy of Trial Lawyers.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James D. Blount, Jr., Nigle B. Barrow, Jr. and Susan M. Parker, Raleigh, for defendant-appellee.

BRANCH, Chief Justice.

Before considering the merits of plaintiffs' appeal, we first address defendant's contention that plaintiffs' exceptions 2 and 12-15 have not been properly preserved for appellate review. Defendant argues that plaintiffs violated Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure and Rule 21 of the General Rules of Practice for the Superior and District Courts by failing to object to the jury charge at the conclusion of the charge and before the jury began its deliberations.

Rule 10(b)(2) provides, in part, as follows:

No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; ....

Similarly, Rule 21 of the General Rules of Practice for the Superior and District Courts provides, in pertinent part, that

[a]t the conclusion of the charge and before the jury begins its deliberations, and out of the hearing, or upon request, out of the presence of the jury, counsel shall be given the opportunity to object on the record to any portion of the charge, or omission therefrom, stating distinctly that to which he objects and the grounds of his objection.

At the conclusion of all the evidence in the instant case, the trial judge held a charge conference at which time he went through the pattern jury instructions and indicated those which he intended to include in his charge to the jury. Counsel for plaintiffs objected to the giving of the medical malpractice pattern jury instructions concerning "infallibility" and "utmost degree of skill and learning" (exception 12), that a health care provider is not an insurer of results (exceptions 13 and 14), and that a doctor is not responsible for a mistake in judgment if it is the result of an "honest error" (exception 15). These objections are reflected in the trial transcript. Additionally, prior to the jury charge, plaintiffs' counsel requested that the word "probably" be inserted in the court's explanation of proximate cause. The record reflects that this change was requested both orally and in writing.

The trial judge overruled each of plaintiffs' objections to the pattern jury instructions and instructed in accordance with his intentions as previously stated at the charge conference. Counsel for plaintiffs made no additional objections following the charge to the jury.

It is our conclusion that neither Rule 10(b)(2) nor Rule 21 required plaintiffs to repeat their objections to the jury instructions after the charge was given in order to preserve their objections for appellate review. These rules were obviously designed to prevent unnecessary new trials caused by errors in instructions that the court could have corrected if brought to its attention at the proper time. It is our opinion that this policy is met when a request to alter an instruction has been submitted and the trial judge has considered and refused the request. In most instances, it is obvious that further objection at the close of the instructions would be unavailing.

Rule 51 of the Federal Rules of Civil Procedure contains language almost identical to our Rule 10(b)(2). Under Rule 51, "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, ...."

The Ninth Circuit Court of Appeals interpreted Rule 51 to permit appellate review of a jury instruction, even though no exception was entered after the charge had been given, when " 'the court [had] been fully informed in advance of the charge as to appellants' contention and it was clear that further efforts to persuade the court would have been unavailing.' [citations omitted] ... Restating the identical point as an exception to the instruction would have been useless." Robinson v. Heilman, 563 F.2d 1304, 1306 (9th Cir.1977), quoting, Cohen v. Franchard, 478 F.2d 115, 122 (2d Cir.1973). See also, Brown v. Avemco Investment Corp., 603 F.2d 1367, 1371 (9th Cir.1979) (to require plaintiffs to object after instructions is to require a "pointless formality"); Stewart v. Ford Motor Co., 553 F.2d 130, 140 (D.C.Cir.1977) (to require additional objection after instructions given would be "an unnecessary elevation of form over substance").

On the basis of the record in this case, it appears plain that the trial judge's refusal at the charge conference to instruct in accordance with plaintiffs' proposals represented the judge's final decision and further objections would have been not only useless but wasteful of the court's time. As such, we hold that plaintiffs' failure to object following the giving of the jury instructions does not foreclose review by this Court of plaintiffs' exceptions 2 and 12-15.

Defendant also argues that plaintiffs' appeal should be dismissed for their failure to clearly reference the portions of the jury instructions complained of as required by Rule 10(b)(2). This Rule requires that "[i]n the record on appeal an exception to instructions given the jury shall identify the portion in question by setting it within brackets or by any other clear means of reference."

We agree with defendant that the portions of the instructions excepted to by plaintiffs have not been clearly defined. The only indication of the challenged portions consists of handwritten notes which appear in the transcript between lines of type or at the end of lengthy paragraphs. It is never entirely clear whether plaintiffs except to a particular paragraph, to preceding paragraphs or only to particular sentences or phrases. Despite this handicap, we are enabled by the arguments presented in plaintiffs' brief to ascertain the particular portions complained of and we elect in our discretion to consider the merits of plaintiffs' contentions pursuant to Rule 2 of the Rules of Appellate Procedure.

Each of plaintiffs' arguments on appeal relates to the jury instructions given in the instant case. Plaintiffs concede that the instructions given were in conformity with the North Carolina pattern jury instructions relating to medical negligence. It is their contention, however, that the incorporation of exculpatory legal maxims inapplicable to the factual situation presented, the unnecessary repetition of instructions favorable to defendant and the recitation of confusing statements relating to plaintiffs' burden of proof under G.S. 90-21.12 resulted in a charge that was emphatically favorable to defendant. Plaintiffs contend that these "unduly exculpatory instructions" constitute reversible error entitling them to a new trial.

We have examined each of plaintiffs' arguments respecting particular portions of the jury instructions to determine whether, when considered as a whole, the instructions tended to exculpate defendant by unduly emphasizing the limitations upon his liability for medical negligence. We conclude that although many of the instructions when considered in isolation were either correct or, if erroneous, were not sufficiently prejudicial to constitute reversible error, that the instructions in their totality were so emphatically favorable to defendant that plaintiffs are entitled to a new trial. In reaching this conclusion, we intend no especial criticism of the able trial judge, for the charge given, considered in its separate parts, was nearly in precise conformity with the pattern jury instructions and our prior case law. Our decision in this case is directed equally to the exculpatory nature of the pattern jury instructions themselves and to their selections and use by the trial judge.

Plaintiffs first argue that the trial judge erred in instructing that a doctor is not responsible for a mistake in his diagnosis or judgment if it is the result of an "honest error." Plaintiffs contend that the term "honest error" is misleading and unduly exculpatory and that it is irrelevant to the statutory definition of medical negligence.

General Statute 90-21.12 establishes a standard of care applicable to all health care professionals. This statute provides:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

It is plaintiffs' position that the common law standards of care enunciated in our prior cases are no longer relevant in a medical malpractice action. They argue that all other standards and requirements defining a physician's duty to a patient, such as the limitation of liability for an "honest error," are subsumed in this single statutory standard.

Defendant strenuously disagrees with plaintiffs' position that by adopting the statutory standard of care, the legislature intended to supplant established case law standards of care to which the ...