This medical malpractice case arose out of Mr. Cox's treatment
for chronic gastroesophagel reflux and esophagitis. On 7 April
1994, defendant Bruce C. Steffes, M.D. performed a laparoscopic
Nissen fundoplication procedure on Mr. Cox at the Cape Fear Valley
Medical Center ("Cape Fear"). The purpose of the surgery was to
eliminate the reflux of stomach acid from the stomach into the
esophagus.
Shortly after the surgery, Mr. Cox began experiencing severe
abdominal pain when eating or sipping water, nausea, sweating, an
increased heart rate, and increased blood pressure on standing. He
was readmitted to Cape Fear on 12 April and 18 April 1994 with no
alleviation of his symptoms. By the time Mr. Cox was admitted at
Duke University Medical Center on 10 May 1994, a month after the
surgery, he had lost 30 pounds. At Duke, the surgeon first
inserted a feeding tube and then later, once Mr. Cox was strong
enough, performed corrective surgery.
This case was tried before a jury during the 30 July 2001
civil session of the Robeson County Superior Court with the
Honorable John R. Jolly, Jr. presiding. At trial, plaintiffs
relied upon the expert testimony of Dr. Joseph C. Donnelly, Jr., a
physician board-certified in both general and thoracic surgery. Dr. Donnelly, who is now retired, estimated that he had performed
between 50 to 75 (and maybe 100) Nissen fundoplication surgeries.
After conducting voir dire, defendants objected to Dr.
Donnelly's testifying as to the standard of care on the grounds
that he could not comply with the requirements of N.C. Gen. Stat.
§ 90-21.12 (2001) and Rule 702(b) of the Rules of Evidence. The
trial judge overruled defendants' objection although he indicated
that he would revisit his ruling at the directed verdict stage
because of concern regarding whether plaintiffs' expert testimony
met the requirements of Rule 702.
Defendants moved for a directed verdict at the close of
plaintiffs' evidence. After again noting concerns about compliance
with Rule 702(b), the trial court took the motion "under
advisement" and announced that he would rule at the end of the
case. He explained to plaintiffs, "I want to give you an
opportunity to show your whole case and I want to hear their
defense." Defendants then proceeded to present evidence, including
the testimony of expert witness Dr. John McGuire.
Although defendants renewed their motion for a directed
verdict at the close of all of the evidence, the trial court chose
to defer ruling on that motion and submit the case to the jury. On
7 August 2001, the jury returned a verdict in favor of Mr. Cox in
the amount of $300,000.00 and in favor of plaintiff Linda Cox for
$75,000.00 for loss of consortium.
Defendants moved pursuant to Rules 50 and 59 for judgment
notwithstanding the verdict ("JNOV") and in the alternative for a
new trial, arguing primarily that plaintiffs' sole expert witness,Dr. Donnelly, was not qualified to testify as to the standard of
care in Fayetteville or similar communities. The trial court
granted defendants' JNOV motion in an order filed on 23 October
2001.
[1] As a preliminary matter, we address defendants' cross-
appeal from the trial court's order filed 20 February 2002 denying
their motion to dismiss plaintiffs' appeal and defendants' motion
to dismiss filed in this Court. We affirm the trial court's order
and deny defendants' motion to dismiss.
Plaintiffs initially filed their malpractice claims in an
action with file number 97 CVS 1138. After voluntarily dismissing
that action, plaintiffs subsequently refiled their claims in this
case with file number 99 CVS 2564.
Defendants served plaintiffs with a copy of the trial court's
JNOV order on 22 October 2001. On 30 October 2001, plaintiffs
served and filed a notice of appeal "from the Order of Judgment
Notwithstanding the Verdict entered by Judge Jolly on the 12th day
of October, 2001." Plaintiffs' notice of appeal inadvertently
listed 99 CVS 1138 as the file number rather than 99 CVS 2564. On
3 January 2002, defendants moved to dismiss the appeal on the
grounds that plaintiffs had failed to file a proper notice of
appeal and had failed to comply with all of the requirements under
Rule 7 of the Rules of Appellate Procedure regarding obtaining a
transcription of the trial proceedings.
With respect to the transcription arrangements, the trial
court found that on 5 November 2001, six days after the notice ofappeal, plaintiffs sent a letter to the court reporter requesting
certain portions of the transcript. The letter did not comply with
Rule 7 because it did not contain a statement of the issues that
plaintiffs intended to raise on appeal, it was not filed with the
trial court, and it was not served upon opposing counsel. With
respect to the statement of issues, we note that the notice of
appeal in this case had already identified the sole issue that
plaintiffs were addressing on appeal. The court reporter notified
counsel for defendants of the transcript request in a letter dated
17 December 2001. It appears from the record that the court
reporter delivered the requested portions of the transcript to
plaintiffs within the time limitations specified by Rule 7. The
court reporter did not, however, provide defense counsel with a
copy at that time, did not certify to the clerk of court that the
copies had been delivered, and did not send a copy of the
certification to the Court of Appeals.
The trial court found with respect to the notice of appeal
that plaintiffs' error was inadvertent and with respect to the
transcript that plaintiffs were in "substantial compliance" with
Rule 7 of the Rules of Appellate Procedure. The court ordered
plaintiffs to file a corrected notice of appeal within two days of
the court's entry of the order in open court with the filing to
relate back to the original date. The court further ordered
plaintiffs to comply strictly with Rule 7 and to serve and file a
new request to the court reporter for transcription of the
proceedings. On 29 January 2002, plaintiffs filed a second notice
of appeal using the correct file number. Defendants do not contendthat plaintiffs have committed any violations of the Rules of
Appellate Procedure following the trial court's 20 February 2002
order.
"This Court has held that when a litigant exercises
'substantial compliance' with the appellate rules, the appeal may
not be dismissed for a technical violation of the rules." Spencer
v. Spencer, 156 N.C. App. 1, 8, 575 S.E.2d 780, 785 (2003). In
Ferguson v. Williams, 101 N.C. App. 265, 275, 399 S.E.2d 389, 395,
disc. review denied, 328 N.C. 571, 403 S.E.2d 510 (1991), this
Court stated:
[D]efendants brought a motion to dismiss
plaintiff's appeal pursuant to Rules 7 and 25
of the North Carolina Rules of Appellate
Procedure. Rule 7(a)(1) requires an appellant
in a civil case to make a formal request for a
copy of the trial transcript within ten days
of filing notice of appeal. In their motion,
defendants asserted plaintiff failed to comply
with this rule. Judge John held a hearing and
denied defendants' motion, finding that
plaintiff had "substantially complied" with
the rule. We decline to disturb this finding
on appeal.
Although plaintiffs' counsel should have exercised greater care to
comply with the Appellate Rules, we, like the Ferguson Court, find
no compelling reason to overturn the trial court's finding of
substantial compliance in this case. See also Pollock v. Parnell,
126 N.C. App. 358, 361-62, 484 S.E.2d 864, 865-66 (1997) (appellant
substantially complied with Rule 7 when he made a timely request
for transcription even though he did not file a copy of the request
with the trial court and when he obtained the transcript within 60
days).
With respect to the notice of appeal, we find that it wasserved and filed with the clerk's office within the required time
limitations, but, due to a clerical error by plaintiffs' counsel as
to the case number, was not filed in the proper folder. To the
extent that this error casts any doubt on our jurisdiction, we
exercise our discretion and grant certiorari to review plaintiffs'
claims on their merits pursuant to N.C.R. App. P. 21. See Anderson
v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) ("Rule
21(a)(1) gives an appellate court the authority to review the
merits of an appeal by certiorari even if the party has failed to
file notice of appeal in a timely manner.").
[2] Plaintiffs' appeal presents the question whether the trial
court properly granted defendants' motion for JNOV. The parties
agree and the transcript of the hearing on defendants' motion
indicates that the basis for the trial court's order was its belief
that the testimony of Dr. Donnelly was incompetent and that without
Dr. Donnelly's testimony, plaintiffs failed to present evidence
sufficient to meet their burden of proof. While plaintiffs argue
that the testimony of Dr. McGuire, offered by defendants, cured any
inadequacies in plaintiffs' proof, the trial court apparently
believed, and defendants contend on appeal, that the trial court
was limited to considering only plaintiffs' evidence in deciding
whether to set aside the jury's verdict. That approach was,
however, incorrect.
In
Stallings v. Food Lion, Inc., 141 N.C. App. 135, 539 S.E.2d
331 (2000), this Court set out the proper procedure for considering
a motion for JNOV in circumstances such as those of this case: When a motion is made for directed verdict at
the close of the plaintiff's evidence, the
trial court may either rule on the motion or
reserve its ruling on the motion. By offering
evidence, however, a defendant waives its
motion for directed verdict made at the close
of plaintiff's evidence. Accordingly, if a
defendant offers evidence after making a
motion for directed verdict, "any subsequent
ruling by the trial judge upon defendant's
motion for directed verdict must be upon a
renewal of the motion by the defendant at the
close of all the evidence,
and the judge's
ruling must be based upon the evidence of both
plaintiff and defendant."
Id. at 136-37, 539 S.E.2d at 332 (emphasis added; citations
omitted) (quoting
Overman v. Gibson Products Co., 30 N.C. App. 516,
520, 227 S.E.2d 159, 162 (1976)). Under
Stallings, the trial court
in this case was free to defer ruling on defendants' motion for a
directed verdict made at the close of plaintiffs' evidence. When,
however, defendants then chose to present evidence, they waived any
argument that their motion for a directed verdict should have been
granted and the trial court was then required to base its ruling on
defendants' motion for JNOV "upon the evidence of both plaintiff[s]
and defendant[s]."
Overman, 30 N.C. App. at 520, 227 S.E.2d at
162.
In
Bishop v. Roanoke Chowan Hospital, Inc., 31 N.C. App. 383,
229 S.E.2d 313 (1976), this Court applied these principles in
holding that a JNOV motion should not have been granted when, as in
this case, subsequent witnesses cured any deficiencies in
plaintiff's expert witness' testimony. In
Bishop, plaintiff's
expert witness was allowed to answer, over defendants' objection,
a hypothetical question that included facts that were not then in
evidence. Although subsequent witnesses ultimately supplied themissing facts, the trial court granted defendants' motion for JNOV.
In reversing that decision, this Court rejected defendants'
contention _ virtually identical to the argument made here _ that
the trial court's order was proper because the expert's testimony,
critical to plaintiff's claim, was inadmissible. This Court
stressed that in determining the correctness of a motion for JNOV,
"'[a]ll relevant evidence admitted by the trial court,
whether
competent or not, must be accorded its full probative force . . .
.'"
Id. at 385, 229 S.E.2d at 314 (emphasis added; quoting
Dixon
v. Edwards, 265 N.C. 470, 476, 144 S.E.2d 408, 412-13 (1965)).
Applying
Stallings and
Bishop to this case, we note first that
since defendants have not cross-assigned error to the trial court's
decision to admit the testimony of Dr. Donnelly, the admissibility
of that testimony is not before us.
See also Dixon, 265 N.C. at
476, 144 S.E.2d at 413 (in reviewing a motion for judgment as of
nonsuit, the Court was not required to determine the competency of
the evidence submitted to the jury);
Bishop, 31 N.C. App. at 385,
229 S.E.2d at 314 ("Nor do we, on this appeal, find it necessary to
determine the competency of the testimony of the [expert].").
Instead, the question before this Court is whether the evidence
submitted to the jury, when considered in its entirety and in the
light most favorable to plaintiffs, was sufficient under N.C. Gen.
Stat. § 90-21.12 for the jury to find that defendants' care of Mr.
Cox "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."
SeeAlexander v. Alexander, 152 N.C. App. 169, 170, 567 S.E.2d 211, 213
(2002) (citation omitted) (on appeal, the standard of review for a
JNOV is "whether the evidence was sufficient to go to the jury").
The standard is high for the party seeking a JNOV: "
the motion
should be denied if there is more than a scintilla of evidence to
support the plaintiff's prima facie case."
Id. (emphasis
original).
The evidence supporting plaintiffs' claims must be
taken as true, all conflicts and inconsistencies in the evidence
must be resolved in plaintiffs' favor, and plaintiffs must receive
the benefit of every reasonable inference.
Id. at 171, 567 S.E.2d
at 213.
On appeal, defendants have questioned only Dr. Donnelly's
ability to testify as to the standard of care in "the same or
similar communities." Dr. Donnelly specifically testified that he
was familiar with the standard of care for board-certified
physicians such as Dr. Steffes practicing in Fayetteville or a
similar community in 1994 with respect to post-operative care after
a Nissen fundoplication procedure. As support for this assertion,
Dr. Donnelly testified that he had, prior to trial, received
written information regarding the Fayetteville area from
plaintiffs' counsel and had reviewed it again prior to testifying
before the jury. With respect to his knowledge of communities
similar to Fayetteville, he explained that he was board-certified
in general surgery (like Dr. Steffes) and had practiced at a Level
2 hospital in Reading, Pennsylvania. Dr. Donnelly expressed his
belief that Cape Fear was also a Level 2 hospital; Dr. McGuire
confirmed that fact. Dr. McGuire also confirmed that the standardof care at his Level 2 hospital in Asheville was the same as the
standard of care at Cape Fear. In addition, Dr. Donnelly's and Dr.
McGuire's testimony together supported the conclusion that the
Reading hospital's size was comparable to that of Cape Fear. Dr.
Donnelly also more specifically expressed his view that Reading was
similar to Fayetteville with respect to board-certified physicians,
sophisticated lab services, x-ray departments, anesthesia services,
hospital certification, and access to specialists.
Equally importantly, Dr. McGuire testified that the standard
of care at issue in this case was in fact the same across the
nation. As to post-operative care, Dr. McGuire first testified, "I
think it is universally accepted the standard of care." He then
agreed more specifically that with respect to post-operative care
"the standard of care applicable for that would be the same across
the US in 1994 for any board-certified surgeon[.]"
Dr. Donnelly's and Dr. McGuire's testimony regarding Level 2
hospitals was sufficient to establish that Dr. Donnelly's knowledge
of practices in Reading, Pennsylvania qualified him to testify as
to the standard in communities similar to Fayetteville. In
Coffman
v. W. Earl Roberson, M.D., P.A., 153 N.C. App. 618, 624-25, 571
S.E.2d 255, 259 (2002),
disc. review denied, 356 N.C. 668, 577
S.E.2d 111 (2003), this Court held that a doctor's testimony
regarding standard of care was sufficient when the doctor testified
generally that he was familiar with the standard of care in
communities similar to Wilmington, that he based his opinion on
Internet research regarding the hospital, and that he knew the
hospital was a sophisticated, training hospital.
See alsoLeatherwood v. Ehlinger, 151 N.C. App. 15, 22-23, 564 S.E.2d 883,
888 (2002) (reversing directed verdict when plaintiffs' expert
specifically testified that he had knowledge of the standards of
care in Asheville and similar communities because of his practice
in communities of a size similar to Asheville and because he had
attended rounds as a medical student in the Asheville hospital at
issue),
disc. review denied, 357 N.C. 164, 580 S.E.2d 368 (2003).
Even if this evidence is disregarded, Dr. McGuire's testimony
established that the standard of care with respect to post-
operative care by board-certified general surgeons, under the
circumstances of this case, is the same for all communities. This
Court stated in
Haney v. Alexander, 71 N.C. App. 731, 736, 323
S.E.2d 430, 434 (1984),
cert. denied, 313 N.C. 329, 327 S.E.2d 889
(1985): "Where the standard of care is the same across the
country, an expert witness familiar with that standard may testify
despite his lack of familiarity with the defendant's community."
Given Dr. McGuire's testimony, Dr. Donnelly's testimony, which
defense counsel characterized on cross-examination as testimony
regarding the national standard, was sufficient to support the
jury's verdict.
See also Brooks v. Wal-Mart Stores, Inc., 139 N.C.
App. 637, 656-57, 535 S.E.2d 55, 67 (2000) (noting that this Court
has rejected any argument that testimony regarding a nationwide
standard is always insufficient under N.C. Gen. Stat. § 90-21.12),
disc. review denied, 353 N.C. 370, 547 S.E.2d 2 (2001).
Defendants rely upon
Henry v. Southeastern OB-GYN Assoc.,
P.A., 145 N.C. App. 208, 550 S.E.2d 245,
aff'd per curiam, 354 N.C.
570, 557 S.E.2d 530 (2001), for the proposition that the trialcourt erred in allowing plaintiff's expert to testify as to the
national standard of care.
(See footnote 1)
In
Henry, however, "there [was] no
evidence that the national standard of care is the standard
practiced in Wilmington."
Id. at 210, 550 S.E.2d at 247.
Likewise, in the recent decision in
Smith v. Whitmer, 159 N.C. App.
192, 197, 582 S.E.2d 669, 673 (2003), this Court affirmed a grant
of summary judgment when plaintiff's expert witness could only
testify to a national standard of care, but "there was no evidence
that a national standard of care is the same standard of care
practiced in defendants' community." By contrast, in this case
defendants' expert witness confirmed that the standard of care was
"universally accepted" and "would be the same across the US in 1994
for any board-certified surgeon[.]" Dr. McGuire supplied the
evidence lacking in
Henry and
Smith. We therefore reverse the
trial court's order granting defendants' motion for JNOV.
[3] As a final matter, we note that defendants also moved
pursuant to Rule 59 of the Rules of Civil Procedure for a new
trial. Although the trial court indicated orally in the course of
the hearing on defendants' post-trial motions that it was "not
inclined" to grant defendants' motion for a conditional new trial,
the record on appeal contains no order reflecting any decision by
the court as to that motion.
Under Rule 50(c)(1) of the Rules of Civil Procedure, if amotion for JNOV is granted, "the court shall also rule on the
motion for new trial, if any, by determining whether it should be
granted if the judgment is thereafter vacated or reversed, and
shall specify the grounds for granting or denying the motion for
the new trial." It was defendants' obligation to ensure that they
obtained a ruling on their motion for a conditional new trial:
A party gaining judgment notwithstanding the
verdict should also ask for a ruling pursuant
to G.S. 1A-1, Rule 50(c)(1), on the motion for
a new trial if he wishes to allege any error
in the trial or to preserve any question other
than the sufficiency of the evidence for
appellate review.
Beal v. K. H. Stephenson Supply Co., 36 N.C. App. 505, 510, 244
S.E.2d 463, 466 (1978). Because defendants failed to seek a ruling
on their motion for a new trial and did not make any cross-
assignments of error as to the trial, we reverse and remand for
entry of judgment on the verdict.
Reversed in part and remanded for entry of judgment on the
verdict; affirmed in part.
Judges MARTIN and HUNTER concur.
Footnote: 1