IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-354
Filed: 16 June 2020
Mecklenburg County, No. 11 CVS 18175
EDWARD G. CONNETTE, as guardian ad litem for AMAYA GULLATTE, a Minor, and ANDREA HOPPER, individually and as parent of AMAYA GULLATTE, a Minor, Plaintiffs,
v.
THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY d/b/a CAROLINAS HEALTHCARE SYSTEM, and/or THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY d/b/a CAROLINAS MEDICAL CENTER, and/or THE CHARLOTTE- MECKLENBURG HOSPITAL AUTHORITY d/b/a LEVINE CHILDREN’S HOSPITAL, and GUS C. VANSOESTBERGEN, CRNA, Defendants.
Appeal by plaintiffs from judgment entered 20 August 2018 by Judge Robert
C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 15
October 2019.
Edwards Kirby, L.L.P., by Mary Kathryn Kurth and John R. Edwards, for plaintiffs-appellants.
Gallivan, White & Boyd, P.A., by Janice Holmes and Christopher M. Kelly, for defendants-appellees.
DIETZ, Judge.
Nearly a century ago, our Supreme Court rejected the notion that nurses can
be liable for medical malpractice based on their diagnosis and treatment of patients.
The Court reasoned that nurses “are not supposed to be experts in the technique of
diagnosis or the mechanics of treatment.” Byrd v. Marion Gen. Hosp., 202 N.C. 337, CONNETTE V. THE CHARLOTTE-MECKLENBURG HOSP. AUTH.
Opinion of the Court
162 S.E. 738, 740 (1932). Medicine is quite different today than in the early twentieth
century and so, too, is the knowledge and skill of nurses in their varying fields and
specializations.
Plaintiffs Edward Connette and Andrea Hopper argue that the nurse
anesthetist in this case participated in the treatment plan for Hopper’s young
daughter to such a degree, and with such an exercise of expertise and discretion, that
the nurse effectively was treating the patient and thus should be subject to legal
claims for medical malpractice.
We must reject this argument. Had Byrd left room for evolving standards as
the field of medicine changed, this may be a different case. But the Byrd court’s
holding is categorical, and it is controlling here. If this Court were free to reject
Supreme Court precedent that we felt did not age well, it would destabilize our
position as an intermediate appellate court. On issues where our Supreme Court
already has spoken, we do not make law, we follow it.
Plaintiffs also challenge a series of discretionary decisions by the trial court
during the trial. As explained below, under the limited standard of review we apply
to these arguments, the trial court acted well within its sound discretion. Accordingly,
we find no error in the trial court’s judgment.
Facts and Procedural History
In the fall of 2010, Andrea Hopper took her three-year-old daughter Amaya to
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an emergency room for an upper respiratory infection and an ear infection. While
treating Amaya, medical professionals discovered that her heartrate was higher than
normal, or “tachycardic,” so they referred Amaya to a cardiologist, Dr. Nicholas B.
Sliz, at a hospital affiliated with Defendant Charlotte-Mecklenburg Hospital
Authority.
Dr. Sliz determined that Amaya’s increased heart rate caused her heart to
develop cardiomyopathy, a disease which makes it hard for the heart to pump blood
to the body and enlarges the heart. Because Amaya’s cardiac output was severely
depressed, Dr. Sliz recommended she undergo an “ablation procedure” to fix her
irregular heart rhythm. Dr. Sliz was confident that the ablation procedure would be
a success and scheduled a surgery for Amaya.
Dr. James M. Doyle, an anesthesiologist, and Defendant Gus C.
VanSoestbergen, a certified registered nurse anesthetist, administered Amaya’s
anesthesia. Doyle and VanSoestbergen decided to induce Amaya with a mask to avoid
the stress that might be caused by pricking her with a needle and inducing her
intravenously. The two also chose to induce her with “sevoflurane,” an anesthetic that
can cause one’s blood pressure to drop and cardiac output to decrease.
Soon after the anesthesia team administrated the sevoflurane, Amaya went
into cardiac arrest. After about thirteen minutes, Amaya’s treatment team was able
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to revive her, but the oxygen deprivation left her with permanent brain damage,
cerebral palsy, and profound developmental delay.
In 2011, Plaintiffs filed a complaint against various medical professionals
involved in Amaya’s treatment. The case went to trial in 2015. The jury failed to reach
a verdict on the claims against Doyle and VanSoestbergen in this first trial. Before
the second trial, Doyle and his anesthesiology practice settled the claims against
them. Thus, the only remaining parties in the second trial were VanSoestbergen, who
is a certified registered nurse anesthetist, and the hospital that employed
VanSoestbergen.
The second trial began in 2018. Plaintiffs asserted a number of negligence-
based claims, including a claim that VanSoestbergen breached the applicable
standard of care by agreeing, during the anesthesia planning stage, to induce Amaya
with sevoflurane using the mask induction procedure. Plaintiffs asserted that
certified registered nurse anesthetists are highly trained and have greater skills and
treatment discretion than regular nurses. Moreover, they asserted, nurse
anesthetists often use those skills to operate outside the supervision of an
anesthesiologist. Plaintiffs also argued that VanSoestbergen was even more
specialized than an ordinary nurse anesthetist because he belonged to the hospital’s
“Baby Heart Team” that focused on care for young children.
The trial court refused to admit Plaintiffs’ evidence of this claim. The court
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determined that this theory of liability was precluded by Daniels v. Durham County
Hosp. Corp., 171 N.C. App. 535, 615 S.E.2d 60 (2005), a decision that analyzed and
applied the Supreme Court’s holding in Byrd v. Marion Gen. Hosp., 202 N.C. 337, 162
S.E. 738 (1932).
The trial court concluded that a nurse may be liable for improperly
administering a drug, but not for breaching a duty of care for planning the anesthesia
procedure and selecting the appropriate technique or drug protocol. Thus, the trial
court excluded all expert testimony suggesting that VanSoestbergen breached a
standard of care by agreeing to mask inhalation with sevoflurane. The trial court
submitted Plaintiffs’ other claims against VanSoestbergen to the jury. The jury found
VanSoestbergen not liable for Amaya’s injuries. Plaintiffs timely appealed.
Analysis
I. Nurse’s liability for treatment decisions
Plaintiffs first argue that the trial court erred by excluding evidence that
VanSoestbergen “shared responsibility with Dr. Doyle for both planning and
administering anesthesia to Amaya.” Plaintiffs contend that a certified registered
nurse anesthetist is “not a mere appendage of the anesthesiologist” but instead an
“independent collaborator” who owes a duty of care to the patient when participating
in the creation of a patient’s treatment plan.
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The trial court rejected this argument after concluding that it was barred by
settled precedent. As explained below, this Court, too, is bound by that precedent and
we therefore find no error in the trial court’s ruling.
Nearly a century ago, a plaintiff sought to hold a nurse liable for decisions
concerning diagnosis and treatment. Byrd v. Marion Gen. Hosp., 202 N.C. 337, 162
S.E. 738, 740 (1932). Specifically, the plaintiff was suffering from convulsions and
alleged that she was severely burned after the nurse placed her in a “sweat cabinet”
or “sweating machine” as part of her treatment. Id.
Our Supreme Court declined to recognize the plaintiff’s legal claim, explaining
that “nurses, in the discharge of their duties, must obey and diligently execute the
orders of the physician or surgeon in charge of the patient.” Id. The Court held that
the “law contemplates that the physician is solely responsible for the diagnosis and
treatment of his patient. Nurses are not supposed to be experts in the technique of
diagnosis or the mechanics of treatment.” Id.
Since Byrd, this Court repeatedly has rejected legal theories and claims based
on nurses’ decisions concerning diagnosis and treatment of patients. In 1985, for
example, this Court cited Byrd to reject a claim that a nurse owed a separate duty of
care to the patient because any “disagreement or contrary recommendation she may
have had as to the treatment prescribed would have necessarily been premised on a
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separate diagnosis, which she was not qualified to render.” Paris v. Michael Kreitz,
Jr., P.A., 75 N.C. App. 365, 381, 331 S.E.2d 234, 245 (1985).
Similarly, in 2005, this Court rejected a theory that a registered nurse was
part of the “delivery team” in obstetrics and engaged in a “collaborative process with
joint responsibility.” Daniels v. Durham County Hosp. Corp., 171 N.C. App. 535, 539,
615 S.E.2d 60, 63 (2005). We observed that, although “medical practices, standards,
and expectations have certainly changed since 1932 and even since 1987, this Court
is not free to alter the standard set forth in Byrd.” Id. We therefore affirmed summary
judgment in favor of the nurse because “plaintiffs present a medical dispute regarding
diagnosis and treatment that nurses are not qualified to resolve.” Id. at 540, 615
S.E.2d at 63.
In short, as this Court repeatedly has held in the last few decades, trial courts
(and this Court) remain bound by Byrd, despite the many changes in the field of
medicine since the 1930s. Thus, the trial court properly determined that Plaintiffs’
claims based on VanSoestbergen’s participation in developing an anesthesia plan for
Amaya are barred by Supreme Court precedent.
We acknowledge that Plaintiffs have presented many detailed policy
arguments for why the time has come to depart from Byrd. We lack the authority to
consider those arguments. We are “an error-correcting body, not a policy-making or
law-making one.” Davis v. Craven County ABC Bd., 259 N.C. App. 45, 48, 814 S.E.2d
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602, 605 (2018). And, equally important, Byrd is a Supreme Court opinion. We have
no authority to modify Byrd’s comprehensive holding simply because times have
changed. Only the Supreme Court can do that. State v. Scott, 180 N.C. App. 462, 465,
637 S.E.2d 292, 294 (2006). Thus, we decline to address Plaintiffs’ policy arguments
individually, but recognize that they were presented to us and thus are preserved
should Plaintiffs seek further appellate review.
II. Video evidence
Next, Plaintiffs argue that the trial court erred by permitting Defendants to
show the jury an illustrative video depicting mask induction anesthesia. Plaintiffs
contend that the video was inadmissible and unduly prejudicial.
Before we address Plaintiffs’ specific evidentiary arguments, we must first
address a framing issue concerning the illustrative nature of the exhibit. The
determination of whether an exhibit is sufficiently illustrative “is a matter within the
sound discretion of the trial judge.” Thomas v. Dixson, 88 N.C. App. 337, 345, 363
S.E.2d 209, 214 (1988).
Here, Plaintiffs characterize the video as one used to illustrate Amaya’s
induction, similar to how one might use an illustrative video to reconstruct the scene
of an accident. They contend that, viewed in this way, the exhibit was not admissible
for illustrative purposes because the child in the video was struggling and had to be
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restrained, while undisputed evidence showed Amaya was calm and cooperative
during the procedure.
The flaw in this argument is that both the Defendants and the trial court
emphasized that this was not the purpose of the illustration. During this portion of
Defendants’ case, their expert was addressing Plaintiffs’ theory that the induction
should have proceeded more slowly. Defendants’ expert sought to explain why the
anesthesiology team tried to move Amaya more quickly to another “stage” in the
process because young children, during this particular stage of induction, can become
excitable and combative.
So the purpose of the video was not to illustrate something that happened to
Amaya, but rather to illustrate a hypothetical scenario—one which the expert was
describing in detail in his testimony—that Amaya’s anesthesiology team sought to
avoid.
Defendants were careful to point this out when questioning the expert: “Dr.
Yasser, I want to be real clear about this. We’re not showing a picture of what
happened to Amaya or representing that this is Amaya. This is just an example of a
child going through stage two and an induction, sevo induction so the Ladies and
Gentlemen of the Jury can understand your testimony?” The expert responded, “Yes.”
Similarly, the trial court emphasized this point to the jury, explaining that the
video was “not to illustrate what transpired with Amaya, but to help you understand
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something that can occur in the inhalation process to help you understand this
witness’s testimony about how an anesthesiologist, CRNAs do what they do.” Thus,
in our analysis of the admissibility and potential prejudice of the challenged video,
we focus our review on the video’s use as an illustration of the expert’s hypothetical
scenario, not as an illustration of events that actually occurred during Amaya’s
induction.
We begin with Plaintiffs’ challenge based on lack of foundation. To lay the
foundation for this type of illustrative exhibit, the proponent must demonstrate that
the exhibit is a “fair and accurate portrayal” of the thing it seeks to illustrate. Id. at
344, 363 S.E.2d at 214. If there is conflicting evidence concerning the accuracy of the
illustrative exhibit, the determination of whether to admit the exhibit “is a matter
within the sound discretion of the trial judge.” Id. at 345, 363 S.E.2d at 214.
Here, Defendants’ expert testified that he had performed “tens of thousands”
of similar inhalation inductions on children and saw children induced using
sevoflurane every day. He further testified that he had viewed the video and that,
based on his experience, the video illustrated “a child who is getting a normal mask
induction and this would be on any kid on any day in any operating room in the
United States.” Finally, he testified that the video would assist him “to illustrate or
to help explain” to the jury his testimony about the type of chaotic reactions that
children can have during this stage of sevoflurane induction.
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The trial court was well within its sound discretion to admit the exhibit based
on this foundational testimony. Plaintiffs argue that the expert “did not know when
or where [the video] was recorded” and “knew nothing about the child” in the video.
But this is irrelevant. It was not even necessary that the video be real—it could have
been an animated video, or a photo-realistic one created with computer-generated
effects. What matters for purposes of foundation is that the expert established that
the video was a fair and accurate representation of a procedure he was describing,
based on his experience with “tens of thousands” of the same procedure on other
children. Accordingly, the trial court did not abuse its discretion in this admissibility
analysis.
Plaintiffs next argue that the video should have been excluded under Rule 403
of the Rules of Evidence because its probative value was “substantially outweighed
by the danger of unfair prejudice.” They contend that the “obvious purpose” of the
video was to incite anxiety and emotion in the jury and exaggerate the difficulty of
VanSoestbergen’s work as a nurse anesthetist.
Rule 403 permits a trial court to exclude evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.” State v. Triplett, 368 N.C. 172, 178, 775 S.E.2d 805, 808–09
(2015). We review a trial court’s Rule 403 analysis for abuse of discretion. Id. at 178,
775 S.E.2d at 809.
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Here, the challenged video had probative value—it provided a visual
perspective of a complicated medical procedure described by an expert. Moreover, the
trial court took steps to minimize the risk of any prejudicial effect from the video.
Although there were differences between the video and Amaya’s circumstances, the
trial court addressed those by informing the jury that it was to consider the video
solely for illustrative purposes and “not to illustrate what transpired with Amaya,
but to help you understand something that can occur in the inhalation process.”
In short, the trial court properly determined that the risk of potential prejudice
or confusion was not so great as to substantially outweigh the probative value of this
illustrative exhibit. The trial court’s decision to admit this evidence was a reasoned
one and not arbitrary. We therefore find no abuse of discretion in the admission of
this illustrative video.
III. Use of short-hand references to “Gus” and “Nurse Gus” at trial
Plaintiffs next argue that the trial court erred by permitting defense counsel
to refer to VanSoestbergen as “Gus” and “Nurse Gus” during trial. Plaintiffs argue
that this trial strategy, contrasted with references to physicians using the prefix
“Doctor,” downplayed VanSoestbergen’s authority as a certified registered nurse
anesthetist and caused the jury to view Gus as someone with less professional skill
and authority than he actually possessed.
“The conduct of a trial is left to the sound discretion of the trial judge, and
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absent abuse of discretion, will not be disturbed on appeal.” Gray v. Allen, 197 N.C.
App. 349, 352, 677 S.E.2d 862, 865 (2009). Under this narrow standard of review, we
cannot find reversible error unless the trial court’s ruling “was so arbitrary that it
could not have been the result of a reasoned decision.” Kearney v. Bolling, 242 N.C.
App. 67, 72, 774 S.E.2d 841, 846 (2015).
The trial court’s decision to permit VanSoestbergen to be referred to as “Nurse
Gus” was well within the court’s broad discretion. To be sure, the defense may indeed
have used the references to “Nurse Gus” in part as a trial strategy. But, to be fair,
Gus VanSoestbergen’s last name is a tongue-twister for some, and even he testified
that people at work often called him Gus for that reason. Moreover, Plaintiffs’ counsel
could—and did—emphasize VanSoestbergen’s knowledge and expertise to the jury,
which diminished any risk of prejudice from the short-hand reference.
Thus, the trial court’s decision to permit defense counsel to refer to
VanSoestbergen as “Gus” was a reasoned one, and well within the trial court’s sound
discretion in managing the trial proceeding. Accordingly, we find no abuse of
discretion in the trial court’s decision to permit this short-hand reference at trial.
IV. Challenge to jury instructions
Plaintiffs next argue that the trial court erred by declining to instruct the jury
on whether Amaya was “injured by the negligence of the defendants,” which would
have included both VanSoestbergen and his employer, the Charlotte-Mecklenburg
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Hospital Authority, which Plaintiffs contend is “the largest hospital system in the
western part of the state” and a party that is “financially responsible” for any
judgment against VanSoestbergen. Instead, the trial court instructed the jury to find
whether Amaya was “injured by the negligence of the defendant Gus
VanSoestbergen” and then, in a separate portion of the instruction, explained that
the hospital “would be responsible for any alleged acts of negligence by Gus
VanSoestbergen.” We hold that the trial court’s instruction was proper and within
the court’s sound discretion.
When instructing a jury, the “framing and wording of the issues lies within the
discretion of the trial judge.” Pittman v. First Protection Life Ins. Co., 72 N.C. App.
428, 432, 325 S.E.2d 287, 290 (1985). “This Court reviews jury instructions
contextually and in its entirety. The charge will be held to be sufficient if it presents
the law of the case in such a manner as to leave no reasonable cause to believe the
jury was misled or misinformed.” State v. Blizzard, 169 N.C. App. 285, 296–97, 610
S.E.2d 245, 253 (2005). “Under such a standard of review, it is not enough for the
appealing party to show that error occurred in the jury instructions; rather, it must
be demonstrated that such error was likely, in light of the entire charge, to mislead
the jury.” Id. at 297, 610 S.E.2d at 253.
The trial court’s instructions were well within its sound discretion under this
standard and did not mislead the jury. The factual issues to be decided by the jury
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concerned acts by VanSoestbergen. The court properly instructed the jury on those
issues. The court also instructed the jury that “the Charlotte-Mecklenburg Hospital
Authority would be responsible for any alleged acts of negligence by Gus
VanSoestbergen.”
Thus, the jury properly was instructed both on the issues it must decide, and
on the legal responsibility of the respective defendants. Indeed, the trial court may
have rejected Plaintiffs’ proposed instruction because it could have misled the jury.
Had the jury been asked to consider the negligence of the hospital itself, it may have
led to speculation about acts or omissions by medical professionals involved in
Amaya’s care who were not part of the claims tried in this case. Accordingly, we find
no abuse of discretion in the trial court’s instructions.
V. Trial court’s instructions in response to jury questions
Finally, Plaintiffs argue that the trial court erred in its answers to questions
from the jury during deliberations. Again, we reject this argument.
“A trial court’s answer to a jury question is treated as an instruction to the
jury.” Martin v. Pope, 257 N.C. App. 641, 648, 811 S.E.2d 191, 197 (2018). Thus, as
with the jury instruction analysis above, we review this issue for abuse of discretion,
examining whether the trial court’s framing and wording left no reasonable cause to
believe the jury was misled or misinformed about the law. Pittman, 72 N.C. App. at
432, 325 S.E.2d at 290.
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During deliberations, the jurors asked several questions, including some about
the evidence they could consider in their deliberations. The trial court responded with
the following instruction:
No. 1, the question is: What is evidence? Evidence is the testimony of the witnesses and the exhibits or records that were offered into evidence. You may and should determine what evidence you believe to be – or you believe. . . . You may also consider any matters that you infer from the testimony and exhibits in the case, so long as any inference is reasonable and logically drawn from the testimony and the exhibits in the case.
Plaintiffs agree that this was an accurate statement of the law and they do not assert
any error in this instruction standing alone.
Later in deliberations, the jury asked a specific question concerning the court’s
original instruction on the standard of care. At the same time, the jury submitted a
note indicating that they were unable to reach a unanimous verdict.
The court thoroughly discussed with the parties how to respond to the jury’s
question. In a conversation stretching for nearly fifteen pages of the trial transcript,
the parties speculated about what the jury likely was getting at with this question,
particularly in light of the lack of unanimity. Ultimately, the trial court announced
that it would simply repeat its original instruction on negligence and the standard of
care, taken from pattern jury instructions, explaining that “I think if they listen to
what I’m telling them that that will give them the answer.”
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Plaintiffs’ counsel then stated that “I think you made your decision. I am not
in any way requesting you change that.” But counsel asked the court also to repeat
the instruction, quoted above, that the trial court gave in response to the jury’s
question about the evidence the jury properly could consider.
The court responded that “I think the Court, in the exercise of its discretion,
will just limit the answer to these four paragraphs which I believe answers what the
– what they are seeking to know.” After the jury returned to the courtroom, the trial
court read the jury’s question and gave the following explanation:
What I’m going to do is repeat a portion of the jury instructions that I think provides an answer to that question. This does not say that this section is any more or less important than any other section. It is just simply the one that appears, to me, to be most responsive to your request.
The court then repeated its original instructions on negligence and the standard of
care, which the parties agree were accurate statements of the law, taken from pattern
instructions.
Plaintiffs contend that it was error not to also re-instruct the jury using the
earlier instruction on evidence and inferences because, without that re-instruction,
the court was “in effect implying to the jury that, contrary to its earlier instruction,
all evidence and reasonable inferences therefrom could not be considered.”
We do not agree that the trial court’s re-instruction created any contradiction
or confusion. The trial court emphasized to the jury that the instruction it chose to
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repeat was no “more or less important than any other.” And the instruction it chose
to repeat was accurate and directly addressed the substance of the jury’s question.
Simply put, the trial court’s decision to re-instruct in the way that it did was a
reasoned one. Thus, under the narrow standard of review applicable to this issue, we
cannot find that the trial court abused its discretion.
Conclusion
For the reasons stated above, we find no error in the trial court’s judgment.
NO ERROR.
Judges BRYANT and BERGER concur.
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