NO. COA02-91
Appeal by plaintiff from order entered 24 July 2001 and order
and judgment entered 17 September 2001 by Judge Narley L. Cashwell
in Durham County Superior Court. Heard in the Court of Appeals 12
November 2002.
Jones Martin Parris & Tessener Law Offices, PLLC, by Thomas E.
Barwick, for plaintiff-appellant.
Yates, McLamb & Weyher, L.L.P., by Barbara B. Weyher and
Michael C. Hurley, for defendant-appellee.
MARTIN, Judge.
Plaintiff Larry Taylor, as administrator of the estate of
William Taylor, Jr., (“decedent”) appeals the entry of an order and
final judgment granting the motion of defendant Interim Healthcare
of Raleigh-Durham, Inc., for a directed verdict at the close of
plaintiff's evidence on grounds plaintiff had failed to produce
sufficient evidence of proximate cause between defendant's alleged
breach of duty and decedent's subsequent death. We reverse the
entry of directed verdict and remand for a new trial.
The facts pertinent to the appeal are as follows: Decedent
suffered from peripheral vascular disease. At all relevant times,
decedent was being treated for complications from the disease bysurgeons Joseph Mulcahy and Cynthia Robinson. Throughout the mid
to late 1990's, Drs. Mulcahy and Robinson performed various
surgeries on the vascular structures in decedent's left leg,
including a 1995 surgery to graft the femoral artery of the right
leg to the femoral artery of the left leg to improve circulation in
the left leg. On 11 July 1997, Drs. Mulcahy and Robinson operated
on decedent's left leg to de-clot a saphenous vein graft and remove
dead tissue from around the graft. The incision was closed with
blue sutures, and decedent's thigh muscle was mobilized in order to
cover the graft. The surgery left decedent with two large wounds
on his left thigh.
Decedent was discharged from the hospital on 17 July 1997.
Defendant was engaged to provide decedent with home nursing care
beginning 17 July, including twice-daily dressing changes to the
two wounds on decedent's left thigh. On the afternoon of 19 July,
Corrine Taylor-Allen, a nurse employed by defendant, observed
during a routine visit to decedent's home that decedent had an area
of swelling below the knee on his left leg. Taylor-Allen contacted
Dr. Mulcahy, who advised that decedent be brought to the emergency
room immediately. Decedent presented to the emergency room where
Dr. Mulcahy performed a final surgery on his left leg wherein the
bridge of skin between the existing wounds was cut, leaving only
one wound. Dr. Mulcahy discharged decedent from the hospital that
evening.
On the morning of 20 July, Taylor-Allen again visited
decedent's home. She noted the two prior wounds were now onelarger wound, and that there appeared to be a large amount of
drainage in the wound. Taylor-Allen also noted that she saw what
she believed to be a tendon visible in the wound bed. Taylor-Allen
did not contact Drs. Mulcahy or Robinson to report the drainage or
visible tendon. Taylor-Allen returned to decedent's home late in
the afternoon of 20 July. She recorded that what she had believed
to be a tendon that morning was actually the femoral artery, and
that the blue sutures used to close decedent's saphenous vein graft
following surgery were now visible. Taylor-Allen did not contact
her supervisors or decedent's doctors about the visible femoral
artery and sutures, nor did she alert decedent that he should go to
the hospital or contact his doctors.
In the early morning of 21 July 1997, decedent awoke his sons
to alert them that he needed to be transported to the emergency
room. Decedent's sons observed “squirts of blood” coming from
decedent's left leg, decedent's bed sheets were completely soaked
with blood, and there was a pool of blood one inch deep beside
decedent's bed. Decedent's son Ricky testified that when he came
to his father's aid, decedent stated twice that “[t]he nurse said
it might burst.” Decedent arrived via ambulance at the hospital
shortly after 2:00 a.m. and died minutes thereafter. The cause of
death was determined to be a hemorrhage due to a breakdown of the
wound from the vascular surgery. Dr. Mulcahy examined decedent's
leg wound postmortem and observed that parts of the saphenous vein
graft were visible and exposed in the wound bed.
On 3 May 1999, plaintiff initiated this action for wrongfuldeath, alleging defendant was negligent in failing to render care
to decedent consistent with the applicable standard of practice and
that such negligence resulted in the rupture of decedent's femoral
bypass, causing him to bleed to death. On 19 March 2001, plaintiff
moved to change the venue to Vance County, where plaintiff had
initiated a related medical malpractice action against decedent's
doctors; plaintiff's motion was denied.
At trial, plaintiff presented the testimony of Dr. Bruce
Morgan, an expert in general and vascular surgery. Dr. Morgan
testified that had Taylor-Allen alerted decedent's treating
physician to the fact his femoral artery was visible in the wound
bed, any reasonable physician would have immediately admitted
decedent to the hospital and performed a ligation, wherein the
graft would be tied off. Dr. Morgan testified that had a ligation
been performed on decedent's graft, decedent would not have
experienced a hemorrhage since the graft was the only source of
blood to decedent's left leg. Dr. Mulcahy testified that if he had
known the femoral artery was visible in the wound bed, he would
have admitted decedent to the hospital and ligated the graft due to
the “great risk” of the wound opening up and bleeding. Dr.
Robinson testified that had she been alerted to the fact a nurse
believed decedent's femoral artery was visible in the wound bed,
she would have requested decedent be brought to the hospital
immediately for evaluation.
Dr. Mulcahy testified that, in his opinion, decedent most
likely died of a hemorrhage to the saphenous vein graft. Hefurther testified that during his postmortem examination of
decedent's wound, he observed what he thought was a possible tear
in decedent's graft. However, Dr. Mulcahy was not certain that the
hemorrhage occurred where he believed he saw a tear, or whether it
occurred at a location on the saphenous vein graft that was visible
in the wound bed, or elsewhere on the graft.
Additionally, plaintiff presented evidence from an expert in
the field of nursing, who testified a visible or exposed artery in
a wound bed constitutes a “medical emergency,” and Taylor-Allen's
failure to alert decedent's doctors to the state of the femoral
artery and sutures on 20 July, among other of her actions, fell
below the reasonable standard of care for the profession. Taylor-
Allen testified she knew decedent's wound was a “high risk” wound
due to the lack of structures surrounding the femoral artery, and
that, depending on decedent's activity level, the artery could
possibly rupture.
At the close of plaintiff's evidence, defendant moved for a
directed verdict. During arguments on the motion, the trial court
stated that for purposes of the motion, it would assume Taylor-
Allen had violated every conceivable standard of care in failing to
alert decedent's doctors to the state of the wound, but that
because plaintiff had not presented evidence that decedent's
hemorrhage occurred on a portion of the saphenous vein graft
actually visible to Taylor-Allen, plaintiff had failed to show the
necessary connection between Taylor-Allen's breach of duty and
decedent's subsequent hemorrhage. Accordingly, the trial courtgranted defendant's motion on grounds that “Plaintiff's evidence as
to proximate cause of death is insufficient as a matter of law and
that Defendant is entitled to judgment on the merits of this
action.” Plaintiff appeals.
Plaintiff brings forward three arguments on appeal: (1) the
trial court erred in granting defendant's motion for directed
verdict because plaintiff presented sufficient evidence of
proximate cause; (2) the trial court abused its discretion in
denying plaintiff's motion to change venue; and (3) the trial court
erred in excluding testimony from plaintiff's expert in nursing
that Taylor-Allen's recopying of decedent's medical chart following
his death was a violation of the applicable standard of care.
We first address the trial court's grant of directed verdict
on the issue of proximate cause.
The law with regard to directed verdicts is
clear. In determining the sufficiency of the
evidence to withstand a motion for a directed
verdict, all of the evidence which supports
the non-movant's claim must be taken as true
and considered in the light most favorable to
the non-movant, giving the non-movant the
benefit of every reasonable inference which
may legitimately be drawn therefrom and
resolving contradictions, conflicts, and
inconsistencies in the non-movant's favor. . .
. [W]here the question of granting a directed
verdict is a close one, we have said that the
better practice is for the trial court to
reserve its decision on the motion and allow
the case to be submitted to the jury.
Turner v. Duke University, 325 N.C. 152, 158, 381 S.E.2d 706, 710
(1989). “To prevail on a claim of negligence, the plaintiff must
establish that the defendant owed him a duty of reasonable care,'that [the defendant] was negligent in his care of [the plaintiff,]
and that such negligence was the proximate cause of [the
plaintiff's] injuries and damage.'”
Williamson v. Liptzin, 141
N.C. App. 1, 10, 539 S.E.2d 313, 319 (2000) (citation omitted),
review dismissed and disc. review denied, 353 N.C. 456, 548 S.E.2d
734 (2001). Moreover, because causation is an inference of fact to
be drawn from the circumstances, “proximate cause is normally a
question best answered by the jury.”
Leatherwood v. Ehlinger, __
N.C. App. __, __, 564 S.E.2d 883, 889 (2002).
We first disagree with defendant's contention that plaintiff
was unable to sufficiently establish decedent's cause of death.
Contrary to defendant's assertion that Dr. Mulcahy was unable to
conclude anything other than decedent bled to death from an unknown
location, Dr. Mulcahy opined decedent most likely died as a result
of a hemorrhage to the saphenous vein graft. He testified that
although he could not be certain the exact location of the
hemorrhage on the saphenous vein graft, it was indeed his opinion,
based on his training as a vascular surgeon and familiarity with
decedent's condition and leg, the most likely cause of death was a
hemorrhage of that graft. This testimony sufficiently established
decedent's cause of death for purposes of withstanding a motion for
directed verdict.
See Felts v. Liberty Emergency Service, P.A., 97
N.C. App. 381, 389, 388 S.E.2d 619, 623 (1990) (physician's
statement that it was “possible” a heart attack could have been
prevented had plaintiff been admitted to hospital, combined with
testimony as to what could have been done at hospital to preventseverity of attack sufficient evidence of proximate cause to
withstand motion for directed verdict);
Largent v. Acuff, 69 N.C.
App. 439, 443, 317 S.E.2d 111, 113 (holding testimony from doctor
that lack of early surgery “quite likely” contributed to patient's
paralysis sufficiently concrete to survive motion to dismiss, and
noting term “quite likely” denotes much higher probability than
“may”),
disc. review denied, 312 N.C. 83, 321 S.E.2d 896 (1984).
We also disagree with defendant's assertion that plaintiff
failed to provide the necessary causative link between any breach
of duty by Taylor-Allen in her care of decedent and decedent's
death from a hemorrhage to the saphenous vein graft. Defendant
argues, and the trial court determined, that in order for plaintiff
to establish proximate cause between Taylor-Allen's failure to
report the state of the wound and the hemorrhage, plaintiff would
be required to present evidence showing the hemorrhage occurred on
the exact portion of the graft visible to Taylor-Allen. Such an
interpretation of proximate cause is too narrow.
North Carolina appellate courts define
proximate cause as a cause which in natural
and continuous sequence, unbroken by any new
and independent cause, produced the
plaintiff's injuries, and without which the
injuries would not have occurred, and one from
which a person of ordinary prudence could have
reasonably foreseen that such a result, or
consequences of a generally injurious nature,
was probable under all the facts as they
existed.
Williamson, 141 N.C. App. at 10, 539 S.E.2d at 319. Foreseeability
is a necessary element of proximate cause.
Id. “To prove that an
action is foreseeable, a plaintiff is required to prove that 'in“the exercise of reasonable care, the defendant might have foreseen
that some injury would result from his act or omission, or that
consequences of a generally injurious nature might have been
expected.”'”
Id. (citations omitted). The plaintiff need not
prove the defendant foresaw the exact injury which occurred.
Id.
In addition to foreseeability, other factors to consider in
assessing proximate cause are whether the cause was likely to
produce the result, whether the relationship of cause and effect is
too attenuated, the existence of intervening causes, whether the
cause was a substantial factor in the result, and whether there
existed a continuous sequence between cause and result.
Id. at 11,
539 S.E.2d at 319-20.
In the present case, defendant argues plaintiff's lack of
evidence that the hemorrhage occurred at a place visible to Taylor-
Allen renders any link between her alleged breach of duty and the
subsequent hemorrhage one of coincidence and sequence as opposed to
consequence; in other words, defendant maintains Taylor-Allen's
failure to alert decedent's doctors to the state of the wound
cannot have been the cause of the subsequent hemorrhage if Taylor-
Allen could not see the exact location where the hemorrhage
occurred, and the fact decedent subsequently suffered a hemorrhage
possibly at some other location in the leg was simply coincidental
and temporal.
Defendant's argument does not stand in the face of the medical
testimony tending to show that the state of the wound and the
visible nature of the femoral artery was, in and of itself, anindication of the breakdown in the structures of decedent's femoral
bypass specifically placing decedent at risk of hemorrhage in those
structures. Plaintiff's nursing expert testified that a visible or
exposed artery in a wound bed constitutes a “medical emergency.”
Dr. Mulcahy testified that a visible femoral artery in the wound
bed would signify the muscle had uncovered the graft and the graft
would not be working as it should, thereby placing the patient “at
a great risk” of the graft opening up and bleeding. Indeed, the
fact that the state of the wound itself was indicative of the risk
of hemorrhage was demonstrated by the testimony of the physicians
that if they had known the femoral artery was visible in the wound
bed, they would have requested decedent come to the hospital
immediately for evaluation, and that based simply on the knowledge
the femoral artery was visible, a ligation would be necessary in
order to prevent hemorrhaging.
Moreover, the evidence established, by more than a mere
scintilla, that it was specifically foreseeable to Taylor-Allen
that the state of decedent's wound and the lack of other structures
surrounding and protecting the femoral artery placed decedent at a
risk of hemorrhage. Decedent expressed to his son that the nurse
specifically informed him the wound “might burst,” and Taylor-Allen
testified herself that the state of the wound was “high risk” and
could be susceptible to rupture. Thus, regardless of where the
hemorrhage in decedent's graft actually occurred and whether it
occurred at a location visible to Taylor-Allen, the testimony
provides more than a scintilla of evidence establishing that itwas, or at least should have been, foreseeable to Taylor-Allen
based on her observation of the open state of the wound and femoral
artery, that decedent was at risk of experiencing a breakdown of
his femoral bypass, and consequently, his doctors should have been
informed of the state of the wound. As our Supreme Court has
observed, evidence of such a failure to act in the face of such
foreseeability is “the essence of proximate cause.”
Turner, 325
N.C. at 160, 381 S.E.2d at 711.
Additionally, the evidence also sufficiently established that
had Taylor-Allen informed decedent's doctors of her observations,
the hemorrhage which killed decedent would not have occurred. Dr.
Morgan's expert testimony established that had Taylor-Allen
properly informed decedent's doctors of the state of the wound, any
reasonable doctor would have immediately performed a ligation to
tie off the graft to prevent hemorrhaging. He further testified
that had that been done in this case, decedent would not have
suffered the hemorrhage which killed him. The testimony of Drs.
Mulcahy and Robinson, that had they known of the state of the wound
they would have requested that decedent come to the hospital and
that Dr. Mulcahy would have performed a ligation, supported Dr.
Morgan's testimony. Such testimony constitutes more than a mere
scintilla of evidence that had Taylor-Allen alerted decedent's
doctors to the fact the femoral artery was visible in the wound
bed, as the standard of care required, decedent would have been
admitted to the hospital and a ligation performed that would have
prevented the hemorrhage that caused his death. In summary, plaintiff's evidence, taken in the light most
favorable to plaintiff, giving him the benefit of all reasonable
inferences, sufficiently established that in the exercise of
reasonable care, Taylor-Allen could have foreseen her failure to
inform decedent's doctors of the state of the wound could result in
consequences of an injurious nature; that the fact decedent's
doctors were unaware of the open state of the wound was likely to
produce the result which occurred; that there was a direct cause
and effect relationship between Taylor-Allen's failure to act and
the result; that Taylor-Allen's failure to act was a substantial
factor in the result; and that there existed a continuous sequence
between cause and result. Such evidence is all plaintiff was
required to forecast on the issue of proximate cause in order to
overcome the motion for directed verdict.
See Williamson, 141 N.C.
App. at 11, 539 S.E.2d at 319-20. The trial court erred in
granting a directed verdict in favor of defendant on this issue.
Accordingly, plaintiff is entitled to a new trial.
In his second argument, plaintiff maintains the trial court
abused its discretion in denying his motion to change the venue to
Vance County where he was pursuing a related medical malpractice
action against decedent's doctors. A trial court's ruling on a
motion to change venue will not be disturbed on appeal absent a
manifest abuse of discretion.
Smith v. Mariner, 77 N.C. App. 589,
335 S.E.2d 530 (1985),
disc. review denied, 315 N.C. 590, 341
S.E.2d 29 (1986). We discern from the record no abuse of
discretion in the trial court's denial of plaintiff's motion, asthere appear in the record several valid bases upon which the trial
court could base that denial, including, among other things,
plaintiff's failure to move for a change in venue until almost two
years after the commencement of the action and after the case had
already been calendared twice in Durham County. This assignment of
error is overruled.
In light of our holding, we need not address plaintiff's final
assignment of error directed to the exclusion of certain testimony
offered through his expert witness in the field of nursing. The
entry of a directed verdict in favor of defendant is reversed, and
this case is remanded for a new trial.
Reversed and remanded.
Chief Judge EAGLES and Judge GREENE concur.
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