Yorke v. Novant Health, Inc.

• Decision Date: 02 September 2008
• Docket Number: No. COA07-503.,COA07-503.
• Citation: 666 S.E.2d 127
• Parties: Tammy D. YORKE, Executor of the Estate of William R. Yorke, Jr., Plaintiff-Appellant, v. NOVANT HEALTH, INC., Novant Health Triad Region, L.L.C., Forsyth Memorial Hospital, Inc., All d/b/a Forsyth Medical Center, and Tenesa McCaskill-Gainey, Defendants-Appellees.
• Court: North Carolina Court of Appeals

666 S.E.2d 127

Tammy D. YORKE, Executor of the Estate of William R. Yorke, Jr., Plaintiff-Appellant, v. NOVANT HEALTH, INC., Novant Health Triad Region, L.L.C., Forsyth Memorial Hospital, Inc., All d/b/a Forsyth Medical Center, and Tenesa McCaskill-Gainey, Defendants-Appellees.

No. COA07-503.

Court of Appeals of North Carolina.

September 2, 2008.

Appeal by Plaintiff from judgment entered 19 October 2005 and from order entered 30 December 2005 by Judge L. Todd Burke in Superior Court, Forsyth County. Heard in the Court of Appeals 10 December 2007.

Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harold L. Kennedy, III and Harvey L. Kennedy, Winston-Salem, for plaintiff-appellant.

Bennett & Guthrie, P.L.L.C., by Richard V. Bennett and Joshua H. Bennett, Winston-Salem, for defendants-appellees.

McGEE, Judge.

The record in this case shows that William R. Yorke, Jr. (Mr. Yorke) filed an amended complaint dated 28 January 2005 against Novant Health, Inc.; Novant Health Triad Region, L.L.C.; Forsyth Memorial Hospital, Inc., all d/b/a Forsyth Medical Center (together, Defendant Hospital); and Tenesa McCaskill-Gainey (Defendant McCaskill-Gainey) (collectively, Defendants).¹ Mr. Yorke alleged that he was injured by the negligence of Defendant McCaskill-Gainey while he was a patient at Defendant Hospital. Specifically, Mr. Yorke alleged that Defendant McCaskill-Gainey was negligent in that, inter alia, she: placed a blood pressure cuff too tightly on Mr. Yorke's arm; further tightened the cuff after Mr. Yorke complained about pain in his arm; failed to check the blood pressure machine to ensure that it was functioning properly; and failed to address the injury that allegedly resulted from the cuff on Mr. Yorke's arm. Plaintiff also pleaded the doctrine of res ipsa loquitur against all Defendants.

During pre-trial discovery, Mr. Yorke requested that Defendant Hospital produce "[t]he complete file of the Risk Management Department at Forsyth Medical Center concerning the hospitalization of [Mr. Yorke]" (the risk management file). Defendant Hospital refused to produce the risk management file, and filed a motion for a protective order on 7 October 2004 claiming that the risk management file was the product of a medical review committee and therefore was protected from discovery pursuant to N.C. Gen.Stat. § 131E-95(b). Defendant Hospital also claimed that the risk management file contained trial preparation materials that were protected from discovery pursuant to N.C. Gen.Stat. § 1A-1, Rule 26(b)(3). Mr. Yorke filed a motion dated 29 October 2004 to compel production of the risk management file. The trial court entered an order on 20 December 2004 in which the trial court, inter alia, granted Defendant Hospital's motion for a protective order.

At trial, Mr. Yorke testified that he suffered a heart attack on 16 December 2001 and was admitted to Defendant Hospital. An unidentified nurse took Mr. Yorke's vital signs and put a blood pressure cuff on Mr. Yorke's left arm. Defendant McCaskill-Gainey entered Mr. Yorke's room later that evening, and Mr. Yorke asked her to loosen the blood pressure cuff because it was hurting his arm. Defendant McCaskill-Gainey explained to Mr. Yorke that she could not loosen the cuff because the cuff would not function properly if she loosened it.

Mr. Yorke called Defendant McCaskill-Gainey into his room later during the evening of 16 December 2001 and repeated his request for her to loosen the blood pressure cuff because it was causing him substantial pain. Defendant McCaskill-Gainey again explained that she could not loosen the cuff. Mr. Yorke testified that later that evening he again called Defendant McCaskill-Gainey into his room because "[t]he blood pressure cuff was killing my arm. It was hurting plumb into my fingers." According to Mr Yorke, Defendant McCaskill-Gainey then "took [the cuff] off and put it back on even tighter than what it was before." Mr. Yorke testified that this caused him intense pain.

Mr. Yorke testified that he continued to suffer from pain in his arm from 17 December through 20 December 2001. On the morning of 20 December 2001, a doctor came to check on Mr. Yorke and immediately removed Mr. Yorke's blood pressure cuff. Mr. Yorke testified that he suffered muscle and nerve damage to his left arm as a result of wearing the blood pressure cuff, and that he had suffered pain in his left arm on a daily basis since leaving the hospital. Mr. Yorke also stated that he had suffered a significant loss of strength and feeling in his left arm since leaving the hospital.

Following Mr. Yorke's evidence, Defendants moved for a directed verdict on Mr. Yorke's res ipsa loquitur theory of recovery. Defendants argued that res ipsa loquitur "is only available as a means to find liability when no proof of the cause of injury is available," and that Mr. Yorke had introduced evidence that the cause of his injury was Defendant McCaskill-Gainey's having applied the blood pressure cuff too tightly on his arm. The trial court granted Defendants' directed verdict motion as to Mr. Yorke's res ipsa loquitur theory of recovery.

Defendants' evidence at trial tended to show that portions of Mr. Yorke's testimony were fabricated, that Defendants were not responsible for Mr. Yorke's alleged injury, and that Mr. Yorke exaggerated the nature of his alleged injury. For example, one of Defendants' expert witnesses, Dr. Joseph T. Alexander, testified that the bruising on Mr. Yorke's arm likely resulted not from the blood pressure cuff, but rather from blood thinners and intravenous catheters that were placed in Mr. Yorke's arm. Defendants also challenged the extent of Mr. Yorke's injuries by showing a videotape of Mr. Yorke using his left arm to turn pages during his deposition. Defendants further challenged Mr. Yorke's testimony by demonstrating through cross-examination that Mr. Yorke's version of the events that allegedly led to his injury had changed over time. Specifically, Defendants demonstrated that Mr. Yorke had previously alleged that he was injured on a day that Defendant McCaskill-Gainey was not working at Defendant Hospital.

During the charge conference, Mr. Yorke requested a jury instruction on res ipsa loquitur. The trial court denied Mr. Yorke's request and instructed the jury on standard negligence principles. The jury returned a verdict on 14 October 2005 finding that Mr. Yorke was not injured by Defendants' negligence. In accordance with the verdict, the trial court entered a judgment on 19 October 2005 ordering that Mr. Yorke was not entitled to recover from Defendants. Mr. Yorke filed a motion for a new trial on 27 October 2005, and the trial court denied Mr. Yorke's motion on 30 December 2005.

Mr. Yorke gave notice of appeal on 4 May 2006 from the trial court's judgment and from the order denying his motion for a new trial. Mr. Yorke died on 2 October 2006 and counsel filed a motion to substitute the executor of Mr. Yorke's estate, Tammy D. Yorke (Plaintiff), as plaintiff in this case. The trial court granted the motion on 24 April 2007.

I.

Before we address the merits of Plaintiff's appeal, we consider a number of motions currently before our Court.

Defendants have filed a motion to dismiss Plaintiff's appeal. Defendants argue that Plaintiff's appeal should be dismissed in whole, or in part, due to various violations of the Rules of Appellate Procedure. We consider each of Defendants' arguments in turn.

A.

Defendants first argue that Plaintiff's appeal should be dismissed in its entirety because Plaintiff did not settle the record on appeal in a timely manner, in violation of N.C.R.App. P. 11(c). Rule 11(c) provides that if a party requests judicial settlement of the record on appeal, a hearing to settle the record "shall be held not later than 15 days after service of the request for hearing upon the judge. The judge shall settle the record on appeal by order entered not more than 20 days after service of the request for hearing upon the judge." N.C.R.App. P. 11(c). Rule 11 also provides, however, that the deadline for judicial settlement of the record on appeal may be extended in accordance with Rule 27(c). N.C.R.App. P. 11(f). Under Rule 27(c), if an appellant requires an extension of time to procure judicial settlement of the record, the appellant must file a motion with this Court seeking an extension. N.C.R.App. P. 27(c)(2).

The record in this case reveals that Plaintiff filed a request dated 18 December 2006 with the trial court for judicial settlement of the record on appeal. The trial court held a hearing and settled the record on appeal on 24 April 2007, more than three months past the deadline set by Rule 11(c). Plaintiff never filed a motion with this Court seeking an extension of time to procure judicial settlement of the record on appeal. Rather, Plaintiff filed with this Court a "motion nunc pro tunc for an extension of time to deem the record on appeal timely filed" on 10 December 2007, the day this case was heard by our Court.

Defendants argue that Plaintiff's failure to seek an extension of time from this Court for judicial settlement of the record subjects Plaintiff's appeal to dismissal. Plaintiff responds that her appeal is not subject to dismissal because she did not violate Rule 11(c). Plaintiff argues that the trial court judge who presided over Plaintiff's trial rotated to another county between December 2006 and April 2007, and therefore would have been unable to settle the record on appeal before April 2007 even had Plaintiff sought to calendar a hearing during the time period required by Rule 11(c).

Our Court has stated that "[t]he appellate rules that regulate the timing of the settlement and filing of the record on appeal are not arbitrary formalities, but `"are designed to keep the process of perfecting an appeal flowing in an orderly manner."'" Cadle Co. v. Buyna, 185 N.C.App. 148, 150, 647 S.E.2d 461, 463 (2007) (quoting ...