An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-236

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

JOHN EARLE "DAN" SKINNER
and JOY SKINNER,
        Plaintiffs,

v .                         Watauga County
                            No. 01 CVS 542
RICHARD W. FURMAN, M.D. and
WATAUGA SURGICAL GROUP, P.A.,
        Defendants.

    Appeal by plaintiffs from judgment entered 23 June 2003 and order entered 20 October 2003 by Judge Richard L. Doughton in Watauga County Superior Court. Heard in the Court of Appeals 13 October 2004.

    Twiggs, Beskind, Strickland & Rabenau, P.A., by Jeff Erick Essen and Donald R. Strickland, for plaintiffs-appellants.

    Northup & McConnell, P.L.L.C., by Isaac N. Northup, Jr., for defendants-appellees.

    GEER, Judge.

    Plaintiffs Dan and Joy Skinner appeal from a jury's verdict finding defendants Richard W. Furman, M.D. and Watauga Surgical Group, P.A. not liable for medical malpractice. On appeal, plaintiffs primarily challenge the trial court's jury instructions on the standard for negligence. We hold that the instruction as given adequately stated the law applicable to the evidence and that, contrary to plaintiffs' contention, they were not entitled to an instruction on res ipsa loquitur.

Facts
    In May 1998, Mr. Skinner was riding a motorcycle along the Blue Ridge Parkway while on vacation. On 5 May 1998, Mr. Skinner was involved in a minor accident in which his chest hit the pavement breaking one of his ribs. Mr. Skinner was taken to the emergency room at Watauga Medical Center where he was examined by Dr. Richard W. Furman. Dr. Furman admitted Mr. Skinner for observation because he was concerned Mr. Skinner might have suffered a splenic tear.
    Upon arrival at the hospital, Mr. Skinner's oxygen saturation rates were 92 to 93 percent. An oxygen saturation rate is a measure of the percentage of oxygen in a person's blood. Dr. Furman did not order additional testing of Mr. Skinner's oxygen saturation rates at the time of his admission. One day later, Mr. Skinner's oxygen levels had fallen to 80 percent and he was experiencing much more pain. Expert witnesses testified at trial that oxygen saturation rates below 90 percent indicate that sufficient oxygen may not be reaching the brain.
    When defendant continued to experience significant pain, Dr. Furman suspected an injury to Mr. Skinner's spleen. In order to ensure there was no further damage to the spleen or lungs, Dr. Furman performed exploratory surgery. After the surgery, Mr. Skinner continued to have low oxygen saturation rates and problems breathing. A day after the exploratory surgery, Mr. Skinner's oxygen saturation levels had dropped into the 50 to 60 percentrange. Additionally, Mr. Skinner was complaining of headaches and mild confusion.
    Mr. Skinner was placed on medications to help alleviate fluid in his lungs and was put on a ventilator to increase his oxygen levels. Mr. Skinner's condition improved and his oxygen saturation rates returned to normal. When Mr. Skinner had stabilized, he was released from the hospital, but, according to plaintiffs' evidence, he was less attentive, his level of functioning had decreased, he experienced short-term memory problems, and he could not complete basic functions needed at his job.
    Plaintiffs filed suit for medical malpractice on 29 August 2001, alleging that defendant Furman and his practice, Watauga Surgical Group, P.A., were negligent in their care and treatment of Mr. Skinner. Plaintiffs contended that Mr. Skinner suffered a hypoxic brain injury due to a low level or lack of oxygen while in defendants' care. Plaintiffs' complaint alleged that (1) when Mr. Skinner was admitted, Dr. Furman failed to order monitoring of Mr. Skinner's oxygen levels with the result that his levels were not checked for many hours; (2) Dr. Furman did not provide supplemental oxygen to Mr. Skinner for a period of 16 to 21 hours; (3) Dr. Furman inappropriately performed surgery given Mr. Skinner's pulmonary status; and (4) the surgery was unnecessary and worsened Mr. Skinner's pulmonary status and overall condition.
    Plaintiffs contend that these negligent acts caused Mr. Skinner to suffer a lack of oxygen to his brain for a significant period of time, resulting in the hypoxic brain injury. Defendants,however, presented evidence that Mr. Skinner suffered long-standing psychiatric conditions, including depression, which defendants contended caused Mr. Skinner's mental and emotional difficulties. Defendants' expert witnesses testified that there were a number of factors that could cause Mr. Skinner's symptoms, including the prior psychiatric problems.
    This case was tried in Watagua County before Judge Richard L. Doughton. The jury returned a verdict in favor of defendants, and judgment was entered 23 July 2003. Plaintiffs filed a motion for a new trial that was denied and subsequently appealed to this Court.
I
    Plaintiffs' first assignment of error challenges the trial court's instruction to the jury regarding the duty of a doctor. The trial court used the following instruction:
            Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every healthcare provider is under a duty to use reasonable care and diligence in the application of his knowledge and skill to his patient's care and to provide healthcare in accordance with the standards of practice among members of the same healthcare profession . . . with similar training and experience situated in the same or similar communities at the time the healthcare is rendered.

Plaintiffs do not argue that this language was improper, but rather contend that the trial court should have added a more specific instruction regarding a doctor's duty "[t]o possess the degree of professional learning, skill and ability which other general surgeons similarly situated ordinarily possess." The trial judgedeclined to give the requested instruction because he concluded that the issue was already encompassed within his instruction. We agree with the trial judge.
    When instructing the jury, the trial court has the duty to declare and explain the law applicable to the evidence presented at trial. State v. Corn, 307 N.C. 79, 86, 296 S.E.2d 261, 267 (1982). "It is well established in this jurisdiction that a charge is to be construed as a whole and if, when so construed, it is sufficiently clear that no reasonable cause exists to believe that the jury was misled or misinformed, any exception to the charge will not be sustained even though the instruction could have been more aptly worded." State v. McKinnon, 306 N.C. 288, 300, 293 S.E.2d 118, 126 (1982).
    In support of their requested instruction, plaintiffs point to the Supreme Court's description of a physician's duty in Hunt v. Bradshaw, 242 N.C. 517, 521-22, 88 S.E.2d 762, 765 (1955) (emphasis added) (internal citations omitted):
        A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury or damage, he is liable.
Subsequently, however, in Wall v. Stout, 310 N.C. 184, 193, 311 S.E.2d 571, 577 (1984), the Supreme Court described the Hunt standard as "completely unitary in nature, combining in one test the exercise of 'best judgment,' 'reasonable care and diligence' and compliance 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.'"
    In this case, plaintiffs did not offer evidence that Dr. Furman failed to attend the necessary schools or courses or obtain the training required to provide the care that he was rendering. Rather, plaintiffs offered evidence that Dr. Furman failed to understand (1) the risk to Mr. Skinner's pulmonary function caused by the surgery and (2) oxygen saturation rates and the level at which decreased oxygen could cause brain damage. According to plaintiffs, because Dr. Furman did not understand these risks, he took actions that other similarly situated doctors would not have taken and breached his duty of care.
    We believe that this theory is encompassed by the instruction that Dr. Furman was required to "provide healthcare in accordance with the standards of practice among members of the same healthcare profession . . . with similar training and experience situated in the same or similar communities at the time the healthcare is rendered." Plaintiffs' argument is simply another example of how Dr. Furman failed to "provide healthcare" in accordance with the standards of practice for surgeons in comparable communities, including knowledge of oxygen saturation rates and the risks ofsurgery upon a patient's pulmonary function. The trial court did not, therefore, err in failing to give plaintiffs' requested instruction.
II
    Plaintiffs' next assignment of error contends that the trial court erred in refusing to give an instruction regarding "circumstantial evidence of negligence." We first observe that plaintiffs are not discussing the general circumstantial evidence instruction (N.C.P.I. _ Civ. 101.45) _ which the trial court did give _ but rather the pattern jury instruction permitting a finding of negligence based on the doctrine of res ipsa loquitur, also called indirect evidence of negligence (N.C.P.I. _ Civ. 809.05).   (See footnote 1) 
    "'Res ipsa loquitur (the thing speaks for itself) simply means that the facts of the occurrence itself warrant an inference of defendant's negligence, i.e., that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking.'" Sharp v. Wyse, 317 N.C. 694, 697, 346 S.E.2d 485, 487 (1986) (quoting Kekelis, 273 N.C. at 443, 160 S.E.2d at 323). The doctrine of res ipsa loquitur applies only (1) when direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident is under the defendant's control, and (3) the injury is of a type that does not ordinarily occur in theabsence of some negligent act or omission. Grigg v. Lester, 102 N.C. App. 332, 333, 401 S.E.2d 657, 657-68, disc. review denied, 329 N.C. 788, 408 S.E.2d 502 (1991). For res ipsa loquitur to apply to a case, it must be apparent "'as a matter of common experience'" to ordinary individuals that "'the accident could [not] have happened without dereliction of duty on the part of the person charged with culpability.'" Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000) (quoting 57B Am. Jur. 2d Negligence § 1826 (1989)) (emphasis omitted).
    This Court has recently addressed the restricted use of the res ipsa loquitur doctrine in medical malpractice cases. Howie v. Walsh, __ N.C. App. __, __ S.E.2d __, 2005 N.C. App. LEXIS 393 (Mar. 1, 2005). This Court recognized that, in medical malpractice cases, the average juror is unable to determine whether a plaintiff's injury would rarely occur in the absence of negligence because of (1) the scientific and technical nature of medical treatment and (2) the fact that medical treatment involves inherent risks despite adherence to the appropriate standard of care. Id. at __, __ S.E.2d at __, 2005 N.C. App. LEXIS 393, at *6-7. Accordingly, "'in order for the doctrine to apply, not only must plaintiff have shown that [the] injury resulted from defendant's [negligent act], but plaintiff must [be] able to show _ without the assistance of expert testimony _ that the injury was of a type not typically occurring in absence of some negligence by defendant.'" Id. at __, __ S.E.2d at __, 2005 N.C. App. LEXIS 393, at *7-8(quoting Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362) (emphasis added).
    In this case, the trial court properly declined to instruct the jury on the doctrine of res ipsa loquitur. First, plaintiffs offered direct proof of the cause of the hypoxic brain injury: "prolonged periods of low-level hypoxia" resulting from Dr. Furman's failure to require monitoring of oxygen saturation rates, his failure to order supplemental oxygen, and his decision to perform surgery while Mr. Skinner had a degree of pulmonary impairment. When a plaintiff offers direct evidence of how the negligence occurred, an instruction on res ipsa loquitur is inappropriate. Grigg, 102 N.C. App. at 333, 401 S.E.2d at 657-68.
    Second, given the facts of this case, a layperson would be unable to infer negligence without the assistance of expert testimony. Plaintiffs offered expert testimony regarding the risk of surgery to Mr. Skinner's pulmonary function, the significance of the oxygen saturation rates, and the likely cause of Mr. Skinner's mental and emotional deficits. Defendants countered with their own expert testimony. Because of the need for expert testimony and the conflicting nature of that testimony, the res ipsa loquitur doctrine was inapplicable. Howie, __ N.C. App. at __, __ S.E.2d at __, 2005 N.C. App. LEXIS 393, at *8 (res ipsa loquitur instruction was improper when the plaintiff's jaw was fractured while a dentist was removing a tooth and "without the assistance of expert testimony, the layperson would lack a basis upon which he could determine the force was excessive or improper"); Diehl, 140 N.C.App. at 380, 536 S.E.2d at 363 ("As such, because there was conflicting expert testimony as to defendant's negligence, we cannot therefore hold that 'the injury is one that [would] not ordinarily occur in the absence of some negligent act or omission' by defendant." (quoting Grigg, 102 N.C. App. at 333, 401 S.E.2d at 658)). Accordingly, this assignment of error is overruled.
III
    Plaintiffs also argue that the trial court erred in instructing the jury: (1) that the law does not require "absolute accuracy" or "infallibility" from the doctor or "the utmost degree of skill and learning known only to a few in his profession;" (2) by twice stating the phrase "negligence is not to be presumed from the mere fact of injury" after the court refused to give plaintiff's instruction on indirect negligence; and (3) by inaccurately describing plaintiffs' contentions with regard to negligence. Because plaintiffs did not object at trial with respect to the final issue, we limit our consideration of this assignment of error to the first and second issues. N.C.R. App. P. 10(b)(2) ("A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection . . . .").
    Plaintiffs acknowledge that the trial court's instructions were "technically correct statements of the law." To the extent that plaintiffs' objections are grounded in their contentions that the trial court erred in not giving a specific instruction as tothe doctor's knowledge, training, and education and in not instructing as to indirect negligence, we have already rejected those contentions. More generally, a review of the jury charge and the evidence offered in this case shows that the charge given by the court accurately stated the law of medical malpractice applicable to the evidence, did not mislead the jury, and was not unfairly prejudicial to plaintiffs. See Wall, 310 N.C. at 195, 311 S.E.2d at 578 ("We find no error in the instructions given by the trial judge to the effect that the law does not hold a physician to a standard of infallibility nor require a degree of skill known only to a few in his profession."); McKinnon, 306 N.C. at 300, 293 S.E.2d at 126 (stating that if the charge is "sufficiently clear that no reasonable cause exists to believe that the jury was misled or misinformed, any exception to the charge will not be sustained even though the instruction could have been more aptly worded"). Accordingly, this assignment of error is overruled.
IV
    Plaintiffs also argue that the trial court erred by not allowing them to cross-examine Dr. Furman with certain deposition testimony of Dr. James McCarrick, an expert witness in pulmonology retained by defendants. While plaintiffs were allowed, during their cross-examination of Dr. Furman, to refer to significant portions of Dr. McCarrick's deposition, the trial court precluded use of other portions.   (See footnote 2)      In limiting plaintiffs' use of Dr. McCarrick's deposition, the trial court precluded those portions that the court believed addressed the standard of care for surgeons. Plaintiffs acknowledge that "[a]dmittedly, Dr. McCarrick was not qualified to give standard of care testimony on surgical issues." Dr. McCarrick was a pulmonologist and was unfamiliar with the standard of care for general surgeons applicable at Watauga Hospital. See N.C. Gen. Stat. § 90-21.12 (2003) (providing that negligence is determined by 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). Plaintiffs argue, however, that they should have been allowed to offer evidence of "(1) what advice Defendant Furman would have received if he had consulted with a pulmonologist earlier, and (2) what treatment Dan Skinner would have received if a pulmonologist had been earlier involved in his case."
    Our review of the excluded portions of Dr. McCarrick's deposition reveal that they do not address that question, but rather go to the standard of care for surgeons. The questionsasked, for example, whether it was "acceptable" for no oxygen saturation levels to be taken for 23 hours and whether a surgeon should take into account the patient's pulmonary status in deciding whether to perform surgery. The questions focused not on pulmonology or oxygen levels, but rather on the propriety of Dr. Furman's actions and what actions Dr. Furman should have taken to remedy the problem. Whether or not Dr. Furman's actions were appropriate can only be viewed "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." N.C. Gen. Stat. 90- 21.12. The excluded questions and responses of Dr. McCarrick involve the local standard of care for surgeons and, accordingly, were _ as the trial court determined _ beyond the scope of Dr. McCarrick's permissible testimony. This assignment of error is also overruled.

    No error.
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).


Footnote: 1
    "'A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relation to it.'" Kekelis v. Whitin Mach. Works, 273 N.C. 439, 443, 160 S.E.2d 320, 323 (1968) (quoting Restatement (Second) of Torts § 328D, at 157 (1965)).
Footnote: 2
    Plaintiffs filed as part of the record on appeal the complete deposition transcripts of Dr. McCarrick and Dr. Harold Frazier. Defendants have moved to strike these depositions on the groundsthat they were never offered to the trial court and thus cannot be considered by this Court. We agree with respect to the transcript of Dr. Frazier's deposition. As for Dr. McCarrick's deposition, the transcript of the trial reveals that portions of that deposition were read into the record during the trial and other portions, although excluded, were considered by the trial court in connection with its rulings during Dr. Furman's cross-examination. We, therefore, deny defendants' motion as to Dr. McCarrick's deposition to the extent that portions of that deposition are specifically identified in the trial transcript as being considered by the trial court.

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