Appeal by plaintiff from judgment entered 7 December 2000 by
Judge Gary E. Trawick in Onslow County Superior Court. Heard in
the Court of Appeals 13 June 2002.
Teresa Mathis Cooney, pro se.
Walker, Clark, Allen, Herrin & Morano, L.L.P., by Mark R.
Morano, for defendant-appellee.
TYSON, Judge.
Teresa M. Cooney (“plaintiff”) appeals from judgment entered
after a jury verdict in favor of Walter R. Sabiston, M.D.
(individually “Dr. Sabiston”) and Kinston Head & Neck Physicians &
Surgeons, P.A. (collectively “defendants”) and the dismissal of
plaintiff's case with prejudice. We find no error.
I. Facts
On 10 January 1995, Dr. Sabiston performed endoscopic sinus
surgery and septoplasty on plaintiff. Prior to the surgery
plaintiff had normal visual function and acuity in both eyes.
Immediately after the surgery, plaintiff reported that she was
blind in her right eye. Dr. Sabiston consulted with Dr. George W.Riddick, an ophthalmologist, who confirmed permanent blindness in
plaintiff's right eye. It is undisputed that a palate injection of
epinephrine/Xylocaine caused the blindness.
Plaintiff filed a complaint on 8 September 1997. Defendants
filed an answer on 19 November 1997. On 14 November 2000,
defendants moved for summary judgment, which was denied. After a
jury trial, the trial court entered judgment in favor of defendants
and dismissed plaintiff's case with prejudice. Plaintiff appeals.
II. Issues
Plaintiff assigns as error: (1) the trial court's ruling that
the case would be tried only on the issue of informed consent
despite evidence being presented regarding the “standard of care”
Dr. Sabiston used in the procedure, (2) the trial court's
disallowance of evidence regarding the standard of care used by Dr.
Sabiston, (3) there was insufficient evidence to support the jury's
verdict, and (4) plaintiff's counsel was inadequate. Assignments
of error set out in the record and not argued are deemed abandoned.
N.C.R. App. P. 28(b)(5)(2001).
III. Informed Consent
Plaintiff contends that the trial court erred by limiting the
triable issue to whether there was informed consent and argues that
evidence existed regarding whether defendants violated the proper
standard of care.
The record indicates that plaintiff's counsel agreed at the
beginning of the trial that the only issue was whether informed
consent was obtained from plaintiff prior to the surgery.
At the summary judgment hearing held the morning of the first
day of trial, the following exchange occurred between the trial
court and plaintiff's attorney:
THE COURT: Let me stop you. Is [Mr.
Young, attorney for defendants]
correct from your standpoint in
saying that the only issue that
it's going to come down to is
consent?
HOLDFORD: Yes, sir. That is correct.
THE COURT: This is a consent case?
HOLDFORD: Yes, sir. It's a consent case.
THE COURT: When you get past everything
else, it comes down to consent?
HOLDFORD: There are other factors, but it
is a failure to obtain informed
consent.
Further discussion during the hearing on defendants' motion for
summary judgment shows that the only triable issue presented was
whether defendants had breached their duty to obtain informed
consent. This assignment of error is overruled.
IV. Trial Court's Evidentiary Rulings
Plaintiff contends that “the jury should have been allowed to
hear
all of the testimony of the witnesses and experts,” and argues
that certain information revealed during the trial “should have
overwhelmed the court's earlier ruling to keep standard of care
[negligence on defendants' part regarding the procedure] out.”
Essentially plaintiff argues that the trial court should have ruled
sua sponte to change the triable issue without a motion or request
by plaintiff. The record does not indicate that plaintiff made anymotion to add an additional triable issue.
“[I]n order for a
party to preserve for appellate review the exclusion of evidence,
the significance of the excluded evidence must be made to appear in
the record and a specific offer of proof is required unless the
significance of the evidence is obvious from the record.”
State v.
Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985).
See also
N.C. Gen. Stat. § 8C-1, Rule 103 (2002); N.C. Gen. Stat. §
15A-1446(a) (2002). “Where evidence is excluded, the record must
show 'the essential content or substance of the witness's
testimony' before we can determine whether exclusion of the
evidence was prejudicial.”
State v. Fullwood, 323 N.C. 371, 387,
373 S.E.2d 518, 528 (1988),
rev'd on other grounds, 494 U.S. 1022,
108 L. Ed. 2d 602 (1990)(quoting
State v. Satterfield, 300 N.C.
621, 628, 268 S.E.2d 510, 515-16 (1980)(“it is impossible on
appellate review to determine whether exclusion of this testimony
was prejudicial error)).
Plaintiff has failed to preserve this issue for appellate
review. This assignment of error is overruled.
V. Sufficiency of the Evidence
Plaintiff next argues that “there was more than sufficient
evidence for [the jury] to rule favorably for the plaintiff on the
issue of informed consent.”
“Contradictions or discrepancies in the evidence even when
arising from plaintiff's evidence must be resolved by the jury
rather than the trial judge.”
Clark v. Bodycombe, 289 N.C. 246,
251, 221 S.E.2d 506, 510 (1976)(citations omitted). Plaintifffails to identify in the record where she moved for a directed
verdict, judgment notwithstanding the verdict, or for a new trial
based on the sufficiency of the evidence. In the absence thereof,
plaintiff has failed to preserve the issue for our review. This
assignment of error is overruled. N.C.R. App. P. 10(b)(2)(2002).
VI. Ineffective Assistance of Counsel
Plaintiff contends that her trial counsel was ineffective.
Plaintiff cites no authority, and we have found no precedent for
setting aside a jury verdict in a civil case based on ineffective
assistance of counsel. This assignment of error is overruled.
We find no error in the judgment of the trial court on the
errors plaintiff assigned and argued.
No error.
Judges MARTIN and THOMAS concur.
Report per Rule 30(e).
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