Assaad v. Thomas

HEDRICK, Chief Judge. The record filed in this case consists of 14 pages, the transcript is made up of over 700 pages, plaintiffs brief consists of 106 pages and there are numerous exhibits. Plaintiff has failed to follow the Rules of Appellate Procedure in that she has failed to set out her assignments of error and exceptions in her briefs “argument” section. Rule 28(b)(5) provides that “[exceptions not set out in the appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.” Additionally, in her brief, she has attempted to advance many immaterial and irrelevant arguments. We have nevertheless considered the record, transcript and brief in order to evaluate her appeal which essentially boils down to one question — that is, whether the trial court erred in directing a verdict for defendant. Where there is a motion made for a directed verdict, the trial judge must determine whether the evidence, taken in the light [278] most favorable to the plaintiff and giving it the benefit of every reasonable inference which can be drawn therefrom, was sufficient to withstand the defendant’s motion. Younts v. State Farm Mut. Auto. Ins. Co., 281 N.C. 582, 189 S.E. 2d 137 (1972). In making such a ruling, the court must resolve any discrepancies in favor of the party against whom the motion is made. Odell v. Lipscomb, 12 N.C. App. 318, 183 S.E. 2d 299 (1971). In medical malpractice actions, the burden is on the plaintiff to offer evidence of failure of a physician to meet certain 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 patients. Hunt v. Bradshaw, 242 N.C. 517, 521, 88 S.E. 2d 762, 765 (1955). N.C.G.S. 90-21.12 further provides: In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not 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 giving rise to the cause of action. Because of the nature of the present case, and the technical nature of medical testimony, jurors cannot decide ultimate issues of negligence without the help of expert witnesses. Generally, there must be expert testimony that tends to show a deviation from a normal standard of care. Beaver v. Hancock, 72 N.C. App. 306, 324 S.E. 2d 294 (1985). Applying foregoing principles, we find no evidence in the record as to what this defendant did or failed to do in perform279 anee of duties to plaintiff. Therefore, the court was obligated to direct a verdict for defendant. In the superior court, we find no error. Affirmed. Judges ARNOLD and ORR concur.