Morrison v. Stallworth

WELLS, Judge. Plaintiff raises numerous assignments of error, attacking in particular the instructions to the jury. Plaintiff contends that Wall v. Stout, 310 N.C. 184, 311 S.E. 2d 571 (1984), requires reversal in this case. There the supreme court held that the jury instructions, in their totality, were “so emphatically favorable” to the physician-defendant as to require a new trial. While the instructions given in the present case do not reach quite the same level of favor, in conjunction with other errors we conclude that they sufficiently prejudiced plaintiff to require a new trial. The court here twice instructed the jury to the effect that “[a] medical doctor in obstetrics and gynecology does not ordinarily [guarantee or] insure the success of his breast examination and diagnosis.” This instruction was explicitly disapproved in Wall except for those cases where an issue concerning a guarantee has been raised. And, as in Wall, the error in giving an irrelevant exculpatory instruction was compounded by repetition. Defendant contends that plaintiffs theory of the case, that defendant assured her the lump was nothing to worry about, did involve such a guarantee. Such logic would apply in virtually every malpractice case, however, and render the holding in Wall meaningless. We hold that under Wall the instruction should be given only when some explicit guarantee is involved. Just as in Wall, the court below also instructed the jury three times that the law does not presume negligence from the mere fact of injury. As noted there, the pattern instructions only call for this instruction once, and its needless repetition unduly tended to emphasize a principle of law exculpatory to defendant in this case. *200 Plaintiff also contends that the trial court erred in summarizing the evidence, by devoting too much attention to defendant’s case and emphasizing and omitting various particulars. It is clear that there is no requirement that summations of the evidence be equal in length. Love v. Pressley, 34 N.C. App. 503, 239 S.E. 2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E. 2d 843 (1978). Yet in summarizing the evidence, the court must take care not to express or imply an opinion. Belk v. Schweizer, 268 N.C. 50, 149 S.E. 2d 565 (1966). Plaintiff presented two experts, Drs. Day and Barwick. Dr. Barwick testified that he had general training in surgery, including evaluation of breast disease, and that in connection with his plastic surgery practice he evaluated substantial numbers of women for breast disease. He then proceeded to give his opinion on the critical issue, concerning defendant’s evaluation of plaintiff relative to the applicable standard of care. On this record, Dr. Barwick clearly qualified to give such expert testimony. Lowery v. Newton, 52 N.C. App. 234, 278 S.E. 2d 566, disc. rev. denied, 303 N.C. 711, reconsideration denied, 304 N.C. 195, 291 S.E. 2d 148 (1981). Although the court summarized the testimony of all the other experts at length, the sole mention given Dr. Barwick was that he “explained biopsy.” In connection with the court’s remarks during Dr. Barwick’s testimony discussed below, this tended to indicate to the jury that the court either found Dr. Barwick’s testimony not competent on the issue or found it lacking in credibility or significance. Plaintiff presented Dr. Day as the first of her two expert witnesses. He testified on his experience with developing programs for early detection of breast and other cancer. He continued by stating that the techniques for detecting breast cancer are easily taught and that any licensed physician should be able to perform a standard competent examination. Dr. Barwick later testified about his training and practice. After Dr. Barwick’s further testimony about plastic surgery, the following ensued: Q. Dr. Barwick, were you familiar with the standards of evaluating women who had breast lumps in 1977 in communities similar to Charlotte, North Carolina? Mr. Golding: Objection. THE COURT: Overruled. Members of the jury, this witness is going to be asked a series of questions. You must remember *201 he is speaking from the field of plastic surgery and general surgery. You must keep in mind that Dr. Stallworth is an obstetric [sic] and gynecologist. You must keep in mind that these two men do not possess expertise in the same fields. This witness will be testifying in the area of plastic and general surgery. Go ahead and ask him the question. The court cautioned the jury twice more to remember these instructions, before allowing Dr. Barwick to answer follow-up questions. At the next break, plaintiff requested the court to withdraw the instruction and the court agreed the instruction was error. However, the court simply gave a general weight and credibility instruction. The sua sponte instructions clearly and erroneously tended to undermine Dr. Barwick’s testimony on the key issue. This court has expressly rejected the notion that a doctor’s actions may be evaluated only by members of his own medical specialty. Lowery v. Newton, supra. If anything, Dr. Barwick was competent to testify to the minimum standard of care, Id., and defendant, holding himself out as a specialist, would be held to a higher standard. Koury v. Follo, 272 N.C. 366, 158 S.E. 2d 548 (1968). Although the court did not unequivocally undermine Dr. Barwick’s testimony, see In re Will of Holcomb, 244 N.C. 391, 93 S.E. 2d 454 (1956), its sua sponte instructions and omission of Dr. Barwick’s testimony from its evidentiary summary clearly prejudiced plaintiff. This is particularly true in light of the critical role of expert testimony in malpractice cases. Plaintiff also contends that the court further erred in giving the four-part burden of proof charge disapproved in Wall. While the burden of proof instruction was essentially in the form disapproved, the specific error in Wall did not occur. Rather, the court deleted the redundant first element, substituting instead an instruction that plaintiff had to show that defendant “failed to feel or otherwise palpate a breast mass” and failed to conduct further investigation. Unfortunately, this instruction tended to negate much of plaintiffs expert testimony, which was presented in large part on the theory that aggressive examination and mammography was required under the applicable standard of care regardless of whether a mass was felt or otherwise actually present. Finally, the court framed the single negligence issue simply in terms of “Mrs. Morrison’s injury.” Plaintiff contends that this *202 phrasing, as opposed to her proposed phrasing “damaged or injured,” tended to mislead the jury into thinking their decision was as to whether or not the alleged negligence caused the cancer, not as to whether or not the delay in diagnosis caused avoidable additional damage from an otherwise unavoidable disease. We agree, particularly in light of the fact that the court repeatedly used the word injury in its instructions without ever defining what exactly plaintiffs contended injury was. In the context of this case, this clearly tended to mislead. We are aware that the form and phraseology of the issues lie in the discretion of the court. First Nat’l Bank of Catawba Co. v. Burwell, 65 N.C. App. 590, 310 S.E. 2d 47 (1983). The issues should nevertheless embrace the real matters in dispute. Greene v. Greene, 217 N.C. 649, 9 S.E. 2d 413 (1940). Considered in light of the charge and the trial as a whole, the negligence issue clearly was lacking in clarity. Like the court in Wall, we conclude that the individual errors discussed above do not individually require a new trial, but taken together do constitute sufficient prejudice to require a new trial. Because the questions may arise again on remand, we also address plaintiff’s remaining assignments of error. Plaintiff objects to an instruction that defendant was not held to a standard of “absolute accuracy” or “utmost degree of skill.” This instruction was expressly approved in Wall as a correct statement of the law. It was not unduly repeated here. We discern no error. Plaintiff also assigns error to the denial of her request to submit several special procedural instructions. The court was required to instruct only on the substantial issues in the action. Link v. Link, 278 N.C. 181, 179 S.E. 2d 697 (1971). Plaintiffs proposed instructions, while they may have been procedurally helpful to the jury in its deliberations, did not add any substantive matter or essential legal principles, and therefore no prejudicial error occurred. Tan v. Tan, 49 N.C. App. 516, 272 S.E. 2d 11 (1980), disc. rev. denied, 302 N.C. 402, 279 S.E. 2d 356 (1981). At one point during its deliberations, the jury returned and asked to “use” a medical pamphlet plaintiff had employed in her examination and particularly to review the information on symptoms of breast cancer. The court denied their request, stating that the book was not introduced into evidence and therefore the jury could not look at it. Under N.C. Gen. Stat. § 8-40.1 (1981), *203 such materials are admissible as exhibits only if agreed to by counsel. Defense counsel expressly refused to agree to introduction as an exhibit. The statute also allows portions of such materials to be read into evidence, but no such reading took place. Only the titles of two tables, and not the tables themselves, were specifically mentioned. Instead, the pamphlet was referred to only generally. The pamphlet was thus never introduced into evidence by either means contemplated by the statute, and the court’s instruction was technically correct. The jury could have been misled to infer, however, that they should not consider testimony based on the pamphlet. For purposes of clarity, should the issue arise on retrial, we thus believe the jury should receive additional instruction that expert testimony elicited in response to questions referring to the pamphlet is evidence to be considered by them. Plaintiff sought unsuccessfully to show the jury an American Cancer Society film, on the early detection of cancer, under the same statute. Plaintiff attempted to show it to the jury as a “reliable and authoritative text.” Accepting this argument as applicable, it is not clear to us whether showing the film would constitute use as an exhibit or “reading” as that term is used in the statute. Plaintiff did not explain to the court how the film would be presented and how her experts would help the jury understand it. See N.C. Gen. Stat. § 8C-1, Rule of Evidence 803(18), Commentary (Cum. Supp. 1983) (necessity of expert assistance to avoid misinformation under similar rule). Nor did she explain how defendant’s experts would have a chance, as they would with printed texts, to explain or rebut her experts’ testimony. We believe that plaintiff failed to meet her burden of justifying admission. She never moved to introduce the film as substantive or illustrative evidence, see N.C. Gen. Stat. § 8-97 (1981), nor has she shown what if any relevant information was thus kept from the jury. See Josey v. Josey, 272 N.C. 138, 157 S.E. 2d 674 (1967) (necessity of inclusion in record on appeal); see also Tart v. McGann, 697 F. 2d 75 (2d Cir. 1982). We now come to assignments of error regarding damages. Plaintiff requested instructions on damages for shortened life expectancy and for the mental suffering associated therewith, which the court refused to give. The instructions were premised on evidence, excluded in large part, that related the various medically- *204 defined stages of breast cancer to statistical survival rates, broken down by the stage at which the cancer was detected. Plaintiffs theory was that defendant’s negligence in failing to diagnose plaintiffs cancer allowed it to grow from the beginning stage to a more advanced stage, at which statistically more women reported spread of the cancer into areas of the chest adjacent to the breast. Thus, according to plaintiffs evidence, her chances of surviving ten years decreased from 75% to 34% and of surviving 20 years from 62% to 24%. This decrease in life expectancy also caused economic and mental damage. We find little North Carolina law directly on point. Traditionally, American courts have refused to allow recovery of damages in personal injury cases on the basis of shortened life expectancy per se. See Downie v. United States Lines Co., 359 F. 2d 344 (3d Cir.) (contrasting “American” and “English” rules), cert. denied, 385 U.S. 897 (1966); 22 Am. Jur. 2d Damages § 121 (1965). Generally, courts have considered such damages improper because of the extreme difficulty of developing a satisfactory rule for measuring them. Id. At the same time, however, American courts have allowed claims for the loss of such associated elements of damages as loss of wages or ability to engage in avocations, Downie v. United States Lines Co., supra, loss of “life’s pleasures,” Tyminski v. United States, 481 F. 2d 257 (3d Cir. 1973), and the mental anguish associated with the knowledge of loss. Downie v. United States Lines Co., supra. This American rule has not been with judicial criticism. See Downie v. United States Lines Co., supra (Kalodner, C.J., dissenting); DePass v. United States, 721 F. 2d 203 (7th Cir. 1983) (Posner, J., dissenting). The North Carolina cases have stated the broad general rule that in personal injury cases “the plaintiff is entitled to recover the present worth of all damages naturally and proximately resulting from defendant’s tort.” King v. Britt, 267 N.C. 594, 148 S.E. 2d 594 (1966). The court went on in King to list damages which might be recovered, cautioning however that they did not state the entire rule. King suggests that any damages shown by substantial evidence, or properly inferable therefrom, may be submitted to the jury. See R. Byrd, Recovery for Mental Anguish in North Carolina, 58 N.C. L. Rev. 435 (1980) (liberal allowance of damages). The general rule is simply that these damages must be *205 shown to be probable, not merely possible, consequences of the injury. Fisher v. Rogers, 251 N.C. 610, 112 S.E. 2d 76 (1960). We conclude that shortened life expectancy is a compensable element of damage. The trial court therefore erred in excluding evidence relevant thereto and in refusing to instruct on this element of damages, as plaintiff requested. Our result is reinforced by a recent and similar Massachusetts case. Glicklich v. Spievack, 16 Mass. App. 488, 452 N.E. 2d 287, rev. denied, 390 Mass. 1103, 454 N.E. 2d 1276 (1983). There the jury awarded damages for shortened life expectancy based on negligent diagnosis which caused a delay of six months in detection of breast cancer. Because of the delay, the prognosis for recovery worsened as the cancer developed; the plaintiffs evidence showed that her ten year survival expectancy was reduced from 94% to 50%. The court upheld the damage award. See also Slater v. Baker, 301 N.W. 2d 315 (Minn. 1981) (appeal on eviden-tiary ruling, but noting sufficient medical evidence to prove shortened life expectancy in breast cancer case). Plaintiff s other contested theory of damages proceeded from her evidence that the delay in diagnosis probably caused the cancer to spread into her chest, avoidably requiring radiation therapy. The degenerative effects of the radiation on the skin and tissue thus substantially hindered efforts at reconstructive surgery, causing disfigurement over and above that plaintiff would have suffered otherwise. North Carolina recognizes disfigurement as a proper element of damages in a personal injury case. See Goble v. Helms, 64 N.C. App. 439, 307 S.E. 2d 807 (1983), disc. rev. denied, 310 N.C. 625, 315 S.E. 2d 690 (1984). Although we find no North Carolina authority, the modern rule appears to allow medical expenses for plastic surgery resulting from negligently inflicted injury. Annot., 88 A.L.R. 3d 117 (1978). Courts have universally held, however, that there can be no double recovery: a plaintiff cannot recover both for disfigurement and reconstruction. Id. Plaintiffs evidence suggested one general disfigurement, and her plastic surgery evidence was related to the extent (including correctability) thereof, not to any aggravation of a pre-existing condition. As noted above, the error, if any, in instructing the jury lay in not defining for them the nature of the “injury” they had to find to award damages. *206 Dr. Barwick was clearly competent to testify on the disfigurement issue. His testimony clearly related the alleged negligence (resulting in radiation therapy) to the extent of plaintiffs disfigurement. Therefore it was error for the trial court to exclude his testimony on this subject. Plaintiff also contends that the course of the trial, as evidenced by the cumulation of rulings and instructions, reflected prejudicial bias on the part of the trial judge. Plaintiff bears a heavy burden in advancing such a contention, and our review of the record does not support it. See Spencer v. Spencer, 70 N.C. App. 159, 319 S.E. 2d 636 (1984). Our disposition of the case makes this argument irrelevant in any event. For the reasons stated, there must be a New trial. Judges WHICHARD and Becton concur.