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1. Medical Malpractice--denial of motion for new trial--contradictory evidence
The trial court did not abuse its discretion in a medical malpractice case by denying plaintiff's N.C.G.S. § 1A-1, Rule 59 motion for a new trial even though plaintiff contends the jury verdict of one dollar in nominal damages was a result of a compromise, because: (1) in light of the fact that defendant doctor was called to testify by plaintiff and was examined at length by defense counsel, it could not be said that the evidence was uncontradicted; (2) some of the evidence presented by plaintiff was contradictory and in part unfavorable to her position with regard to damages; (3) a psychiatrist who treated plaintiff and a clinician who counseled plaintiff both acknowledged that plaintiff's alleged emotional and psychological problems could be attributed to events in her life that predated the alleged assault by defendant; and (4) the evidence was conflicting as to what, if any, damages plaintiff was entitled to from the negligent actions of defendant.
2. Appeal and Error--preservation of issues--cross-assignment of error--denial of
motion for summary judgment--final judgment on merits
Although defendant employer cross-assigned error based on plaintiff's alleged failure to submit any admissible evidence at summary judgment to prove misconduct by defendant doctor or to establish vicarious liability by defendant employer, this cross-assignment of error is dismissed because the denial of a motion for summary judgment is not reviewable on appeal from a final judgment on the merits.
3. Medical Malpractice_-erroneous denial of motion for directed verdict--ratification
The trial court erred in a medical malpractice case by denying defendant employer's motion for directed verdict on the issue of whether it ratified defendant doctor's conduct in having sexual contact with plaintiff patient, because: (1) plaintiff waived review of this issue since even if the doctor was acting within the scope of his employment, the trial court granted the employer's motion for directed verdict on the issue of respondeat superior, and plaintiff did not assign error to this ruling; (2) evidence is sufficient to submit the question of ratification to the jury only where defendant retained the negligent actor in defendant's employ, declined to intervene upon notification that sexual harassment had occurred, and ultimately fired the complaining party; (3) in this case the only factor on which plaintiff presented evidence was that the doctor was still in the employ of the employer, and this evidence standing alone was insufficient to find ratification; (4) there was no indication that the employer had knowledge before November 2004 of all material facts and circumstances relative to the wrongful act that occurred in September 2002; (5) it cannot be said that employer failed to intervene when the doctor was suspended for the remainder of the 2002 calendar year; and (6) plaintiff's expert witness testified that if the doctor's account of the incident were true, he would not have violated the standard of care.
Judge WYNN dissenting.
Ferguson, Stein, Gresham & Sumter, P.A., by S. Luke Largess,
Parker Poe Adams & Bernstein, LLP, by Harvey L. Cosper, Jr., Lori R. Keeton, and Leigh A. Kite, for defendant-appellee Epifanio Rivera-Ortiz, M.D.
Shumaker, Loop & Kendrick, LLP, by Scott M. Stevenson and S. Frederick Winiker, III, for defendant-appellee Callaway Associates, LLP, d/b/a Pro-Med Mobile Services, LLC.
Blondale Hughes (plaintiff) filed a medical malpractice action on 23 January 2004, alleging that Dr. Epifanio Rivera-Ortiz (Rivera-Ortiz) was negligent on 12 September 2002 in his care and treatment and that such negligence was imputed to Callaway (See footnote 1) Associates, LLP d/b/a Promed of North Carolina PLLC (Callaway). (See footnote 2) The jury found Rivera-Ortiz negligent, and found that Callaway had ratified his actions. The jury awarded one (1) dollar in nominal damages. Plaintiff moved for a new trial under North Carolina Rule of Civil Procedure 59 (hereafter Rule 59), and the trial court denied that motion. Plaintiff appeals the denial of her Rule 59 motion, and Callaway appeals the denial of their motion for a directed verdict. After careful consideration, we affirm the trial court's denial of plaintiff's Rule 59 motion and its denial of Callaway's summary judgment motion, but we reverse the trial court's ruling on Callaway's motion for directed verdict. Plaintiff went to Callaway in order to receive a physical examination. Rivera-Ortiz was plaintiff's attending physician. At the time of her physical examination by Rivera-Ortiz, plaintiff was seeking the examination in order to obtain employment with Federal Express. After arriving at Callaway, plaintiff underwent a drug screening and was taken to a room to wait for Rivera-Ortiz. She was told to wait for the doctor's arrival, disrobe down to her underwear, and to put on a hospital gown. After several minutes, Rivera-Ortiz entered the room and introduced himself as the physician who would be conducting her physical examination.
Both plaintiff and Rivera-Ortiz agree that sexual conduct occurred during and after the examination, but the parties disagree over who initiated the acts. Plaintiff testified that Rivera-Ortiz instigated the sexual encounter by asking questions about her marital status and then placing his finger in her vagina. Rivera- Ortiz, however, denied those allegations and said that it was plaintiff who commenced the sexual contact by grabbing his crotch, massaging his genitals, and unzipping his pants.
Plaintiff alleged that as a result of Rivera-Ortiz and Callaway's negligence, she suffered severe emotional distress. Plaintiff testified that she has undergone psychotherapy and group therapy as a result of the incident. Racquel Ward, one of plaintiff's counselors, and Dr. Nilima Shukla, plaintiff's psychiatrist, testified that plaintiff had experienced physical, mental, and sexual abuse in the past, and that many of the stressors present in plaintiff's life predated the alleged assault by Rivera-Ortiz.
During deliberations, the jury expressed to the trial judge confusion over the definition of negligence. The trial court re-read portions of Dr. Patrick Guiteras's testimony regarding the appropriate standard of care for medical doctors. Specifically, the trial court read the portions of the testimony where Dr. Guiteras stated that if Rivera-Ortiz's account of the interactions were true, that he did not violate the standard of care.
After the jury resumed deliberations, the trial judge assessed where the jury was in deliberations:
The problem is they just cannot agree. The note I've gotten says that ten of the twelve jurors feel they are deadlocked or hung, which is the word[s] they used. I don't think it is [a] question that they don't understand the law, but just that they can't agree on what the issue is.
After the foreperson indicated that he thought the jury was deadlocked, the trial court re-read the standard instruction on a juror's duty not to hesitate to reexamine his or her views. Only two jurors, by a show of hands, thought they could reach a unanimous verdict. Eight indicated that they thought the jury was deadlocked. The trial court asked the jury to return to deliberations.
After deliberating for approximately one and a half hours more, the jury found that Rivera-Ortiz was negligent and that Callaway had ratified his conduct. The jury awarded plaintiff one (1) dollar in damages. The trial court denied plaintiff's motion for a new trial.
Plaintiff presents the following issue for this Court's review: Whether the trial court abused its discretion in denying plaintiff's motion for a new trial. Callaway presents one additional issue for this Court's review: Whether the trial court erred in denying their motion for directed verdict on the issue of ratification. We address each issue in turn.
WYNN, Judge, dissenting.
I concur with that portion of the majority opinion that reverses the trial court's denial of Callaway's motion for directed verdict and remands with instructions to vacate the judgment against Callaway. However, because I find that the jury's finding of Dr. Rivera-Ortiz as negligent is inconsistent with their award of only one dollar in nominal damages to Ms. Hughes, I would likewise reverse the trial court's denial of Ms. Hughes's Rule 59 motion for a new trial. I therefore respectfully dissent in part.
As noted by the majority, the question of Dr. Rivera-Ortiz's negligence is not before us on appeal; the jury returned a verdict finding him negligent, and that verdict remains undisturbed. Our sole question is to determine whether Ms. Hughes is entitled to a new trial under North Carolina Rule of Civil Procedure 59(a)(6), which allows a new trial to be granted on the grounds of [m]anifest disregard by the jury of the instructions of the courtor [e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice. N.C. Gen. Stat. § 1A-1, Rule 59(a)(5), (6) (2005). Thus, the only facts relevant to our inquiry are those that pertain to Ms. Hughes's alleged damages as a result of Dr. Rivera-Ortiz's negligence, as found by the jury.
Our state Supreme Court has indicated that a court must set aside [a] verdict in its entirety and award a new trial on all issues when an award of damages to a plaintiff is grossly inadequate, so as to indicate that the jury was actuated by bias or prejudice, or that the verdict was a compromise[.] Robertson v. Stanley, 285 N.C. 561, 569, 206 S.E.2d 190, 195-96 (1974) (quotation and citation omitted). Moreover:
Under such circumstances, with the evidence of pain and suffering clear, convincing and uncontradicted, it is quite apparent that the verdict is not only inconsistent but also that it was not rendered in accordance with the law. Such verdict indicates that the jury arbitrarily ignored plaintiff's proof of pain and suffering. If the . . . plaintiff was entitled to a verdict against defendant by reason of personal injuries suffered as a result of defendant's negligence, then he was entitled to all damages that the law provides in such case.
Id. at 566, 206 S.E.2d at 193-94 (emphasis in original).
When instructing the jury in the instant case, the trial court informed them that, if they found that Dr. Rivera-Ortiz had injured Ms. Hughes through his negligence, Ms. Hughes was entitled to recover nominal damages even without proof of actual damages and would also be entitled to actual damages if she prove[d] by the greater weight of the evidence the amount of actual damages proximately caused by the negligence of Dr. Rivera-Ortiz. These instructions were a correct statement of the law; after a carefulreview of the record and transcript before us, I conclude that the jury's award of only one dollar in nominal damages to Ms. Hughes was rendered contrary to the trial court's instructions and the law.
In its judgment, the jury responded, Yes, to the question, Was the plaintiff Blondale Hughes injured by the negligence of the defendant Dr. Epifanio Rivera-Ortiz? This verdict indicates that the jury believed Ms. Hughes's version of the events of 12 September 2002, rather than the story told by Dr. Rivera-Ortiz. As recounted by Ms. Hughes at trial, Dr. Rivera-Ortiz began her physical examination by checking her eyes, ears, mouth, and breathing, and discussed the veins on her leg. Dr. Rivera-Ortiz then asked Ms. Hughes where her husband was; she answered that she was not married and that her children's father was in prison. He responded, Well, where do you get sex from? and she answered, I don't get sex. Dr. Rivera-Ortiz replied, Wouldn't you like for somebody to come and give you sex and then leave? and Ms. Hughes told him, No, why would I want that. I want somebody who is going to be with me and take care of me. Why would I just want somebody to give me sex.
Ms. Hughes testified that at that point, Dr. Rivera-Ortiz asked her to bend down, and she then felt his finger inside of [her] and he said, 'Ohhh.' She went on to state:
By then I pushed myself up. He didn't move his finger and I vaguely moved it for him when I pulled my body up from him. When I pulled my body up from him, I turned around and first I looked and his thing was just dangling right out of his pants. He grabbed me and pushed me back toward him and rubbed it in the middle of my hip. And then I said, Please stop. I said, Stop. Don't do that. I said, Stop. So, by then he finally stopped. He stopped and then that is when he grabbed his note pad and said, Write your number down and we can finish this.
Ms. Hughes wrote her number on the pad because [she] didn't care because [she] wanted him out of there. She then got dressed and left the clinic, passing Dr. Rivera-Ortiz on her way out, when he looked at me and smiled it was like he didn't care what [she was] [sic] going to do about what he did. He didn't have no remorse about what he did.
Ms. Hughes also told the jury that she had never seen a psychologist or psychiatrist prior to the 12 September 2002 incident with Dr. Rivera-Ortiz, yet had undergone extensive counseling since that time. Two of her counselors testified to the treatment she received, including several medications. Evidence was offered that Ms. Hughes was physically fit prior to the incident and actively seeking employment; indeed, her reason for the visit to Dr. Rivera-Ortiz was to have a physical for a job for which she was applying. Although Ms. Hughes also discussed her prior criminal convictions and exposure to domestic violence with her children's father, those events took place more than five years prior to the September 2002 incident. Ms. Hughes testified to her inability to get a job that required a physical because of her fear of visiting a doctor, as well as panic attacks, her inability to care for her children, and her medical expenses.
Given that the jury found Ms. Hughes's evidence persuasive on the question of negligence, and that Dr. Rivera-Ortiz put on no evidence of his own at trial, I find that Ms. Hughes proved by the greater weight of the evidence that she suffered actual damagesdue to Dr. Rivera-Ortiz's negligence, including medical expenses related to her counseling and medication, and lost wages. As such, the jury acted contrary to the trial court's instructions in awarding Ms. Hughes only one dollar in nominal damages. Although the Robinson court noted the presence of clear, convincing and uncontradicted evidence as to pain and suffering in that case, I do not believe that language is a controlling precedent as to the standard to be applied in ruling on a Rule 59 motion. Thus, I conclude that the trial court abused its discretion by denying Ms. Hughes's Rule 59 motion for a partial new trial on damages. I would therefore reverse.
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