Opinion
No. COA12–134.
2012-09-18
Robert Nathaniel ATKINSON, as Administrator of the Estate of Brenda Blackston Atkinson (a/k/a Brenda L. Atkinson), Deceased, Plaintiff–Appellant, v. CAROLINA RADIOLOGY CONSULTANTS, P.A. and Edward Joseph Clark, M.D., Defendants–Appellees.
Elliot Pishko Morgan, P.A., by David C. Pishko, for Plaintiff–Appellant. Yates, McLamb & Weyher, L.L.P., by John W. Minier and Susan T. Fountain, for Defendants–Appellees.
Appeal by Plaintiff from judgment entered 25 August 2011 and order entered 25 August 2011 by Judge Marvin K. Blount, III in Superior Court, Wilson County. Heard in the Court of Appeals 14 August 2012. Elliot Pishko Morgan, P.A., by David C. Pishko, for Plaintiff–Appellant. Yates, McLamb & Weyher, L.L.P., by John W. Minier and Susan T. Fountain, for Defendants–Appellees.
McGEE, Judge.
Brenda Blackston Atkinson (Ms. Atkinson) was suffering from end stage renal disease when she went to Wilson Medical Center on 10 October 2006 for the placement of a catheter for dialysis. Edward Joseph Clark, M.D. (Dr. Clark) performed this procedure, inserting a catheter into the left side of Ms. Atkinson's neck, through the jugular vein and innominate vein. As Dr. Clark was suturing the catheter, Ms. Atkinson's blood pressure dropped, her heart rate increased, and she had difficulty breathing. A code team was called, but was unsuccessful in reviving Ms. Atkinson, who died at 3:23 p.m. that same day. The initial cause of death was listed as “hemorrhage secondary to damage to vessel in the placement of dialysis access.”
Robert Nathaniel Atkinson (Plaintiff) was Ms. Atkinson's husband and administrator of her estate. Plaintiff filed the complaint in this action on 4 February 2009 against Dr. Clark and his employer, Carolina Radiology Consultants, P.A. (together, Defendants). Plaintiff alleged that Dr. Clark was negligent in his care of Ms. Atkinson, both in performing the catheter insertion and in responding to Ms. Atkinson's post-procedure distress.
The case was tried by a jury. A verdict was reached on 14 June 2011 and the jury found that Plaintiff had not proven Defendants' negligence. The trial court entered an amended judgment in favor of Defendants on 25 August 2011. Plaintiff moved for a new trial on the grounds that the trial court had improperly instructed the jury on the issue of proximate cause. In an order entered 25 August 2011, the trial court denied Plaintiff's motion. Plaintiff appeals.
I.
The issue on appeal is whether Plaintiff was prejudiced by the trial court's instruction on the foreseeability element of proximate cause, which instruction Plaintiff contends was erroneous.
II.
Both Plaintiff and Defendants presented expert testimony at trial concerning Ms. Atkinson's injuries; the cause of her death; and the relationship, if any, between those injuries and Ms. Atkinson's death. Plaintiff's experts concluded that Dr. Clark was negligent; that his negligence caused injury to Ms. Atkinson and her ultimate death; and that a reasonable doctor in Dr. Clark's position would have foreseen that his negligence could cause injury and death. The testimony of Defendants' experts contradicted the testimony of Plaintiff's experts. The jury verdict could have turned on whether the jury found Plaintiff had proven the foreseeability element of proximate cause.
In the present case, the trial court instructed the jury concerning the foreseeability component of proximate cause as follows:
Plaintiff not only has the burden of proving negligence but also that such negligence was a proximate cause of the injury and death of the decedent. Proximate cause is a cause in which a natural and continuous sequence produces a person's injury and death and is a cause which a reasonable prudent health care provider could have foreseen would probably produce such injury and death.
Plaintiff objected to this instruction and requested that the trial court instruct the jury as follows: “[P]roximate cause is a cause which in a natural and continuous sequence produces a person's injury or death. It is a cause which a reasonable and prudent health care provider could have foreseen would probably produce death or some other injurious result.” The trial court denied Plaintiff's request.
In Johnson v. Lamb, 273 N.C. 701, 710, 161 S.E.2d 131, 139 (1968), our Supreme Court reviewed the following instruction concerning foreseeability with respect to proximate cause:
“So, the court charges you that it is generally held that in order to warrant you members of the jury in finding that the negligence of the defendants was the proximate cause of the plaintiff's injury, it must appear that the injury was the natural and probable consequence of the defendants' negligent act, and that it ought to have been foreseen in the light of attending circumstances.” (Emphasis added.)
In Hart v. Curry, 238 N.C. 448, 78 S.E.2d 170, this Court granted a new trial for error in charging the jury substantially in accordance with the above quoted portion of the charge in the present case. While this Court has repeatedly said that foreseeability of injury is an element of proximate cause, it is clear that it is not necessary that the defendant should have been able to foresee the precise injury which resulted from his conduct. “All that the plaintiff is required to prove on the question of foreseeability, in determining proximate cause, is that in ‘the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.’ “ Hart v. Curry, supra; White v. Dickerson, Inc., 248 N.C. 723, 105 S.E.2d 51. The above quoted portion of the charge in the present case implies the contrary and we cannot conclude that the jury was not misled by it. It was, therefore, error prejudicial to the plaintiff.
Johnson, 273 N.C. at 710, 161 S.E.2d at 139 (citations omitted).
The charge in the present case, like those in Johnson and Hart, required the jury to find that a reasonable doctor in Dr. Clark's position would have foreseen that his actions would have probably resulted in Ms. Atkinson's death in the manner in which it occurred. The trial court charged the jury in the present case as follows: “Proximate cause is a cause in which a natural and continuous sequence produces a person's injury and death and is a cause which a reasonable prudent health care provider could have foreseen would probably produce such injury and death.” However,
“[a]ll that ... plaintiff [was] required to prove on the question of foreseeability, in determining proximate cause, [was] that in ‘the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.’ “
Johnson, 273 N.C. at 710, 161 S.E.2d at 139 (citations omitted).
In their brief, Defendants argue:
In personal injury cases, the Pattern Instruction takes a middle-of-the-road position, striking a balance between the extreme possible constructions of proximate causation law. On the permissive (pro-plaintiff) extreme, the law might conceivably allow complete civil recovery upon proof that [D]efendant could have foreseen any injury, with [D]efendant being liable for all resulting consequences. On the more restrictive extreme, the law might hold ... [D]efendant responsible only where he could have foreseen the exact injury ultimately suffered by ... [P]laintiff.
We do not disagree with Defendants' assessment. First, the trial court did not follow the pattern jury instruction on this issue. The pattern instruction would have required the jury to find that a “reasonable and prudent health care provider could have foreseen [that Dr. Clark's negligence, if any] would probably produce such [injury] [damage] or some similar injurious result. ” N.C.P.I.—Civ. 809.00 (emphasis added). Plaintiff requested just such an instruction. Without the phrase “or some similar injurious result,” the instruction tends toward “the more restrictive extreme” discussed by Defendants that would hold Defendants responsible “only where [Dr. Clark] could have foreseen the exact injury ultimately suffered by [P]laintiff.” This runs afoul of prior opinions of our Supreme Court.
Second, pattern jury instructions are not binding on this Court, State v. Ward, 364 N.C. 157, 161, 694 S.E.2d 729, 732 (2010); prior opinions of our Supreme Court are. We do not address whether the pattern instruction would have been proper, nor do we address whether the broad interpretation of foreseeability in proximate cause feared by Defendants is contemplated by Hart, Johnson, or any other binding precedent, as these issues are not before us. The trial court's proximate cause instruction was erroneous, prejudicial, and requires remand for a new trial. See Hart, 238 N.C. 448, 449, 78 S.E.2d 170, 171 (1953).
New trial. Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).