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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LUTHER T. BOYKIN, Administrator of the ESTATE OF DORIS PRIDGEN
BOYKIN, Plaintiff, v. IPBI KIM; ASSOCIATED ALLERGY CENTER, INC.,
Filed: 1 November 2005
1. Evidence_cross-examination not allowed_other testimony_harmless error
Any error in not allowing cross-examination of plaintiff's expert in a medical malpractice
action as to whether a former codefendant had met the standard of care was harmless where
several other experts gave equivalent testimony.
2. Medical Malpractice_insulating negligence_instruction not given
The trial judge did not err by failing to instruct the jury on insulating negligence where that
theory was not pled and it was not evident from the record that both parties understood the issue
to be tried by implied consent.
3. Medical Malpractice_instructions_proximate cause and joint liability_not
misleading in context
The jury was not misled in a medical malpractice action by instructions on proximate
cause and joint and several liability. All of the instructions came directly from the North Carolina
Pattern Jury Instructions and it cannot be shown that the instructions, in context, were misleading.
4. Judgements_prejudgment interest_awarded before settlement setoff
Prejudgment interest is to be awarded before the set-off for a settlement amount; assuming
preservation of the issue for appeal, there was no error in a medical malpractice action in the
assignment of interest and costs between two doctors, one of whom had settled earlier. It would
be contrary to the plain meaning of N.C.G.S. § 1B-4 to allow the settling party to be liable
beyond the consideration in the release.
Appeal by defendants from judgment entered 7 June 2004 and
order entered 28 June 2004 by Judge Gary L. Locklear in Cumberland
County Superior Court. Heard in the Court of Appeals 21 September
The McLeod Law Firm, P.A., by Joe McLeod and William W.
Aycock, Jr., for plaintiff appellee.
Walker, Clark, Allen, Grice & Ammons, L.L.P., by Jerry A.
Allen, Jr., and O. Drew Grice, Jr., for defendant appellants.
Defendants Dr. Ipbi Kim and Associated Allergy Center (Dr.
Kim) appeal from judgment entered 7 June 2004 and order entered 28
June 2004 by Judge Gary L. Locklear in Cumberland County Superior
Court. We find no error.
This is a wrongful death action based upon alleged medical
malpractice brought by the administrator of the estate of Doris
Boykin (the estate) against Dr. Kim, Associated Allergy Center,
Inc., Dr. Wilburn and Caromed Family Practice, P.A. On 8 June 2004
the estate took a voluntary dismissal with prejudice of their
claims against defendants Dr. Wilburn and the Caromed Family
Practice (Dr. Wilburn). The trial against the remaining defendants
commenced on 3 May 2004. On 12 May 2004 the jury returned a verdict
in plaintiff's favor.
Doris Boykin (decedent) began having pulmonary problems in
2001 and sought treatment from her general family practitioner, Dr.
Clinton Wilburn. Dr. Wilburn initially diagnosed decedent with
bronchitis, but when her condition did not improve she sought
treatment from an Ear, Nose and Throat specialist, Dr. Kim. In
the initial visit to see Dr. Kim, decedent complained of several
symptoms including hearing loss, nasal problems and a sore throat
with hoarseness. Dr. Kim informed decedent she only treated ear,
nose, throat and allergy related symptoms and that decedent would
need to see an internist for general medical problems. Dr. Kim's
initial diagnosis was allergic rhinitis. Both doctors initiated treatment of decedent with
prescriptions of several medications, both prescribing a form of
steroids. The first dose was prescribed by Dr. Wilburn in October
2001 and the second was prescribed by Dr. Kim in November 2001.
Decedent continued seeking treatment throughout December. When her
condition did not improve, decedent again visited both doctors on
9 January 2002, and was administered an injection of steroids,
Celestone, by Dr. Kim and prescribed steroids, Medrol, by Dr.
Wilburn. There is no indication that the doctors were communicating
or that either was aware that decedent was being prescribed
steroids by both physicians. Decedent returned to see Dr. Wilburn
in January and February 2002 still complaining of coughing. In
February, Dr. Wilburn ordered a chest x-ray along with other
radiology tests. The tests revealed that decedent's lungs had patch
density which was consistent with infection.
On 18 March 2002, decedent returned to Dr. Kim's office where
an examination of her throat revealed a large mass. At this time,
Dr. Kim again administered steroid injections. Decedent received
the steroid injections from Dr. Kim throughout April 2002 along
with a prescription for the steroid Prednisone. In addition,
decedent received a prescription for Prednisone, from Dr. Wilburn.
Even though previous requests had been made for chest x-rays and
blood work from Dr. Wilburn, Dr. Kim did not receive any of these
requested reports until 19 April 2002 when she received the results
of the tests performed in February by Dr. Wilburn, but still no
blood work. This communication on 19 April 2002 was the onlycommunication between the two treating physicians. Decedent again
visited Dr. Kim on 2 May 2002 where upon review of the previous
test results, Dr. Kim determined a possible lung infection.
Steroid injections were again administered, however, the lung
infection was not discussed even though Dr. Kim received no
indication that it was being treated by Dr. Wilburn.
Decedent's last visit to Dr. Kim's office was on 15 May 2002
where she once more received the steroid treatment because it
appeared to be working by decreasing the size of the mass. Dr.
Wilburn then saw decedent for the last time on 16 May 2002 when he
prescribed an oral steroid with a 20-day course. This was the last
time decedent was seen by a physician. On 24 May 2002 decedent
collapsed and died from exsanguination related to pulmonary
tuberculosis. Both physicians had failed to detect the
A verified complaint was filed by the estate of decedent
against the two defendants, Dr. Wilburn and Dr. Kim, alleging
negligence on the part of both defendants which was the proximate
cause of the wrongful death of decedent. Subsequently, an answer
and demand for jury trial was filed by Dr. Kim alleging that all
treatment was in accordance with the proper standard of care and
that her actions were not the proximate cause of decedent's death.
An answer also was filed by Dr. Wilburn alleging conformance to the
appropriate standard of care and denying that any conduct
contributed to this defendant was the proximate cause of
decedent's death. Before trial ensued, one defendant, Dr. Wilburn,entered into a release from all liability for the consideration of
$1,500,000.00. A voluntary dismissal of all claims with prejudice
against Dr. Wilburn was filed by the estate on 8 June 2004.
At trial, both sides presented expert testimony that tended to
show both Dr. Wilburn and Dr. Kim failed to act in accordance with
the proper standard of care in their communities. Before the trial
began, the estate had designated several expert witnesses, some of
whom were to testify in regard to Dr. Kim and others in regard to
Dr. Wilburn. At trial, one of those expert witnesses, Dr.
Steginsky, was called to testify. Dr. Kim on cross-examination
wanted to elicit testimony that Dr. Wilburn, the former
codefendant, had failed to comply with the proper standard of care.
The court excluded this testimony upon objection by the estate. Dr.
Kim then conducted voir dire of Dr. Steginsky in which the witness
was asked whether he had an opinion to a reasonable degree of
medical certainty as to whether Dr. Wilburn had breached the
applicable standard of care:
I believe that [Dr. Wilburn] breached the
standard of care by not recognizing that an
upper lobe infiltrate was possibly consistent
with tuberculosis and to do the further
appropriate investigation or enlisting the
support of a specialist to help reach a timely
diagnosis. I further believe that his
administration of steroids contributed to the
death of [decedent].
I believe that he failed to communicate
with Dr. Kim, and his failure to communicate
with Dr. Kim led to the over-administration
. . . .
. . . .
I believe that his failure to communicate
with Dr. Kim also contributed to the co-
administration of steroids.
Later in the trial, Dr. Kim was permitted to cross-examine another
expert witness of the estate, Dr. Foster, as well as some of her
own expert witnesses, Dr. Dave and Dr. Mansfield, who testified
that Dr. Wilburn had breached the standard of care and that in fact
his actions had fallen far below the standard of care.
At the conclusion of the trial, a charge conference was held
in which Dr. Kim requested the court to instruct the jury on
insulating negligence. The estate objected to this instruction on
the ground that no issue of insulating negligence had been
presented by evidence at trial. Dr. Kim acknowledged that
insulating negligence had not been pled but stated that it had been
raised by the evidence and therefore an amendment should be allowed
because it was a substantive issue raised at trial. The court
denied the request and excluded any instruction on insulating
negligence. Also, at the charge conference Dr. Kim raised several
objections to jury instructions regarding proximate cause and joint
and several liability. The court in providing the law to the jury,
gave several instructions which made reference to the issues of
proximate cause and joint and several liability. The first
instruction as to proximate cause read:
[I]n defining proximate cause, there may be
two or more proximate causes of an injury.
This occurs when separate and independent acts
or omissions of different people combine to
produce an injury. Thus, if the negligent acts
or omissions of two, or even more people for
that matter, combine to produce an injury, theinjury complained of and ultimate death of
[decedent], the conduct of each person would
be a proximate cause even though one person
may have been more or may have been less
negligent than the other.
Immediately following this instruction was the instruction on joint
and several liability to which Dr. Kim objected:
Under joint and several liability, a
person may seek to recover his, or her in this
case, if you will, amount of damages from only
one or two persons he claims is negligent, or
he may seek to recover his entire amount of
damages from both persons alleged to be
negligent. However, regardless of whether the
plaintiff seeks to recover damages from one
person or from more than one person, plaintiff
is only entitled to one recovery of damages.
Thus, the amount awarded as damages is
the total amount that the plaintiff can
recover from any person. You should not be
concerned with how the total amount of
damages, if any, which you award, based upon
the evidence, may be apportioned among persons
who are jointly and severally liable to the
plaintiff and whether or not all such persons
are defendants at this trial.
After making these two instructions, the trial judge lost his place
and repeated the exact instruction on defining proximate cause,
supra. The court then in a final proximate cause instruction
stated to the jury:
Now, there may be one or more proximate causes
of an injury; therefore, the plaintiff need
not prove that the defendants' negligence was
the sole proximate cause of the injury. The
plaintiff must prove, by the greater weight of
the evidence, only that the defendants'
negligence was a proximate cause.
Dr. Kim renewed all objections to the jury charges at the
conclusion of the instructions. The jury returned a verdict on 12May 2004, finding that decedent was injured as a result of the
negligence of Dr. Kim and the Associated Allergy Clinic with which
she was associated and awarded the estate of decedent
After the verdict was read to the parties, the estate made a
motion to tax the costs of the action to Dr. Kim. Dr. Kim made no
objection. A judgment of $500,000.00 was entered against Dr. Kim
reflecting the $1,500,000.00 credit due to the settlement by Dr.
Wilburn on 7 June 2004 by Judge Gary L. Locklear. The estate made
a verified motion to tax costs to Dr. Kim setting forth the total
costs as $29,283.17 on 1 June 2004. Pre-judgment interest was also
calculated in total as $209,097.72 and then an interest credit was
given for the amount of interest earned on Dr. Wilburn's
settlement, $14,904.24, for a net of $194,193.48. An order was then
entered by Judge Gary L. Locklear on 28 June 2004 taxing costs to
Dr. Kim now appeals.
 On appeal Dr. Kim contends that the trial court erred in
failing to allow cross-examination of plaintiff's expert as to
whether the former codefendant (Dr. Wilburn) acted in accordance
with the standard of care. Even assuming arguendo that the trial
court erred in excluding this testimony, the error was harmless and
unprejudicial and therefore we disagree. Accordingly, we find no
error. N.C. Gen. Stat. § 90-21.12 permits a physician, otherwise
qualified under Rule 702 of the North Carolina Rules of Evidence,
to testify regarding the applicable standard of care in a medical
malpractice case 'when that physician is familiar with the
experience and training of the defendant, and either: (1) the
physician is familiar with the standard of care in the defendant's
community, or (2) the physician is familiar with the medical
resources available in the defendant's community and is familiar
with the standard of care in other communities having access to
similar resources.' Barham v. Hawk, 165 N.C. App. 708, 712, 600
S.E.2d 1, 4 (2004), disc. review allowed, 359 N.C. 410, 612 S.E.2d
316 (2005). Testimony regarding a former codefendant's standard of
care is relevant to the issue of proximate cause and not unduly
prejudicial. See Lumley v. Capoferi, 120 N.C. App. 578, 584, 463
S.E.2d 264, 268 (1995) (stating that evidence of a former co-
defendant's standard of care is relevant to show that the present
defendant's conduct was not the proximate cause of the injury).
However, in considering the issue on appeal, we must consider
whether the error was harmless. The burden is on the appellant to
not only show error, but also to show that he was prejudiced and a
different result would have likely ensued had the error not
occurred. Suarez v. Wotring, 155 N.C. App. 20, 30, 573 S.E.2d 746,
752 (2002), disc. review denied, 357 N.C. 66, 579 S.E.2d 107
(2003). The denial of Dr. Steginsky's testimony in regard to Dr.
Wilburn's compliance with the standard of care is juxtaposed with
testimony by several other experts for both Dr. Kim and the estateconsisting of evidence of tantamount substance and is therefore
harmless. See State v. Richardson, 341 N.C. 658, 462 S.E.2d 492
(1995)(any error in exclusion of evidence is harmless where
evidence of the same import was admitted through the testimony of
other witnesses). It cannot be said that a different outcome would
have resulted. Therefore, this assignment of error is overruled.
 Dr. Kim also contends that the trial judge erred in
failing to instruct the jury on insulating negligence and further
that the jury instructions were misleading. We disagree.
Failure to plead an affirmative defense ordinarily results in
waiver thereof. The parties may, however, still try the issue by
express or implied consent. See Nationwide Mut. Insur. Co. v.
Edwards, 67 N.C. App. 1, 6, 312 S.E.2d 656, 660 (1984). N.C. Gen.
Stat. § 1A-1, Rule 15(b) provides, in pertinent part: When issues
not raised by the pleadings are tried by the express or implied
consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Our Supreme Court discussed
the application of N.C. Gen. Stat. § 1A-1, Rule 15(b) as follows:
[T]he implication of Rule 15(b) . . . is that
a trial court may not base its decision upon
an issue that was tried inadvertently. Implied
consent to the trial of an unpleaded issue is
not established merely because evidence
relevant to that issue was introduced without
objection. At least it must appear that the
parties understood the evidence to be aimed at
the unpleaded issue.
Eudy v. Eudy
, 288 N.C. 71, 77, 215 S.E.2d 782, 786-87, overruled on
, Quick v. Quick
, 305 N.C. 446, 290 S.E.2d 653 (1982);
Mobley v. Hill
, 80 N.C. App. 79, 81, 341 S.E.2d 46, 47-48 (1986).
However, where the evidence which supports an unpleaded issue
also tends to support an issue properly raised by the pleadings, no
objection to such evidence is necessary and the failure to object
does not amount to implied consent to try the unpleaded issue.
Munchak Corp. v. Caldwell
, 37 N.C. App. 240, 246 S.E.2d 13, cert.
295 N.C. 647, 248 S.E.2d 252 (1978). Insulating negligence
is 'a new proximate cause which breaks the connection with the
original cause and becomes itself solely responsible for the result
in question. It must be an independent force, entirely superseding
the original action and rendering its effect in the causation
remote.' Hairston v. Alexander Tank & Equipment Co.
, 310 N.C. 227,
236, 311 S.E.2d 559, 566 (1984) (citation omitted). It is not to
be invoked as determinative merely upon proof of negligent conduct
on the part of each of two persons, acting independently, whose
acts unite to cause a single injury. Id.
Upon review of the entire record on appeal and transcript, it
is apparent that all of the evidence presented at trial tended to
support the properly pled issues of proximate cause and joint and
several liability. The gravamen of Dr. Kim's argument is that she
would have preferred the jury to interpret the evidence presented
at trial in her favor, finding that Dr. Wilburn's negligence was
the proximate cause of Mrs. Boykin's death rather than her own
negligence. Insulating negligence was not pled in this case by Dr.Kim and it is not evident from the record that both parties
understood this issue to be tried by implied consent. Where the
evidence tended to show independent acts of negligence by two
parties which united to cause a single injury, the doctrine of
trial by implied consent should not have been invoked in this
instance and there was no error in excluding an instruction on
insulating negligence. See State v. Cummings,
346 N.C. 291, 488
S.E.2d 550, cert. denied,
522 U.S. 1092, 139 L. Ed. 2d 873 (1998)
(stating that the trial court need only give a requested
instruction which is supported by the evidence).
 Dr. Kim further contends that the jury was misled by the
instructions on the law regarding proximate cause and joint and
On appeal, this Court considers a jury charge contextually and
in its entirety. Jones v. Development Co.
, 16 N.C. App. 80, 86, 191
S.E.2d 435, 439, cert. denied,
282 N.C. 304, 192 S.E.2d 194 (1972).
The charge will be held to be sufficient if it presents the law of
the case in such manner as to leave no reasonable cause to believe
the jury was misled or misinformed . . . . Id.
at 86-87, 191
S.E.2d at 440. The party asserting error bears the burden of
showing that the jury was misled or that the verdict was affected
by an omitted instruction. Robinson v. Seaboard System Railroad,
N.C. App. 512, 524, 361 S.E.2d 909, 917, disc. review denied,
N.C. 474, 364 S.E.2d 924 (1988). Under such a standard of review,
it is not enough for the appealing party to show that error
occurred in the jury instructions; rather, it must be demonstratedthat such error was likely, in light of the entire charge, to
mislead the jury. Id
In the instant case, all of the jury instructions regarding
proximate cause which were objected to came directly from the North
Carolina Pattern Jury Instructions.
(See footnote 1)
It cannot be said that it was
error for the judge to state the law correctly to the jury nor that
it was error for the judge to mistakenly repeat the correct law to
the jury. See State v. Orr
, 260 N.C. 177, 132 S.E.2d 334 (1963)
(stating that an inadvertent mistake by the trial judge, which is
later corrected, is harmless error).
Also, in instructing the jury on joint and several liability
and its impact on damages, it cannot be shown that taken in context
with the entire charge, it misled the jury. The instruction given
by the judge was:
Under joint and several liability, a person
may seek to recover his, or her in this case,
if you will, amount of damages from only one
or two persons he claims is negligent, or he
may seek to recover his entire amount of
damages from both persons alleged to be
negligent. However, regardless of whether the
plaintiff seeks to recover damages from one
person or from more than one person, plaintiff
is only entitled to one recovery of damages.
Thus, the amount awarded as damages is the
total amount that the plaintiff can recover
from any person. You should not be concerned
with how the total amount of damages, if any,
which you award, based upon the evidence, may
be apportioned among persons who are jointly
and severally liable to the plaintiff and
whether or not all such persons are defendants
at this trial.
This was a case of complex medical issues in which throughout the
trial, allusions were made to another doctor's negligence. It was
only fair that the judge give an instruction on how to treat the
allusions to this ever-looming, non-present figure in regard to
damages. We conclude that, taken in their entirety, the jury
charges were not misleading to the jury. Therefore, this assignment
of error is overruled.
 Lastly, Dr. Kim contends that the trial judge erred in
requiring Dr. Kim to pay all pre-judgment interest and costs. We
In the instant case, Dr. Kim failed to make any objection on
the record as to the imposition of costs and pre-judgment interest
or the apportionment thereof. Therefore, the assignment of error
was not preserved. State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d
794, 822 (2005); N.C. R. App. P. 10(b)(1) (In order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
. . . .). However, assuming arguendo that the error was preserved
for appeal, this Court finds no error.
A release of one liable party in a wrongful death action
reduces the claim against the remaining parties to the extent of
the amount of consideration paid for the release. N.C. Gen. Stat.
§ 1B-4(1) (2003). In addition, the release discharges the formerparty from all contribution liability as to the remaining parties.
N.C. Gen. Stat. § 1B-4(2). After the jury renders a verdict against
a party, a judge must then determine and render the final judgment.
See Hieb v. Lowery
, 344 N.C. 403, 410, 474 S.E.2d 323, 327 (1996).
It is clear and unambiguous that judgment, given its plain
meaning, indicates the final amount of money due to the plaintiff,
consisting of the verdict, costs, fees, and interest. Brown v.
, 349 N.C. 520, 522, 507 S.E.2d 894, 896 (1998).
N.C. Gen. Stat. § 24-5 mandates that the portion of money judgment
designated by the fact finder as compensatory damages bears
interest. N.C. Gen. Stat. § 24-5(b) (2003).
This Court must give the language of a statute its plain and
ordinary meaning where the words chosen by the legislature to
comprise the law are clear and unambiguous. See Hyler v. GTE
333 N.C. 258, 262, 425 S.E.2d 698, 701 (1993). In
construing the statutes in pari materia
, the entire amount of
compensatory damages bears interest, rather than the compensatory
portion minus settlements
, 349 N.C. at 523-24, 507 S.E.2d
at 896. Dr. Kim argues that costs and pre-judgment interest should
be apportioned pro rata, however, the plain meaning of the statute
does not support this. It is clear that pre-judgment interest is to
be awarded before a set-off is given for the settlement amount. See
, 349 N.C. 520, 507 S.E.2d 894 (holding pre-judgment interest
is to be determined on the entire amount of compensatory damages
and then reduced by the amount of interest which would have accrued
at present value on the settlement amount determined beforetrial)
(See footnote 2)
. It would be contrary to the plain meaning of the statute
to determine that N.C. Gen. Stat. § 1B-4 allows the settling party
to be liable beyond the amount of consideration set forth in the
release. Where the trial court determined costs and interest before
entitling the party defendant, Dr. Kim, to set-off, any remaining
balance on the judgment was the proper amount for which Dr. Kim is
liable. We find no error.
Accordingly, we find no error in the exclusion of testimony by
Dr. Steginsky in regard to Dr. Wilburn's standard of care,
exclusion of the jury instruction on insulating negligence or the
jury instructions as a whole, and we also find no error in the
taxing of costs and interests to defendant.
Judges McGEE and JACKSON concur.
The proximate cause instructions were taken directly from
N.C.P.I.--Civil 102.27 and N.C.P.I.--Civil 102.19, respectively.
The case stated as a matter of policy that pre-judgment
interest was to compensate the plaintiff for the loss of use of
plaintiff's money and that where a plaintiff had no loss of use
of money which was awarded by settlement before trial, the
defendant party at trial was entitled to a set-off for interest
on the portion of the award already paid to the plaintiff.
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