Weaver v. Sheppa

651 S.E.2d 395, 186 N.C. App. 412, 2007 N.C. App. LEXIS 2206
CourtCourt of Appeals of North Carolina
DecidedOctober 16, 2007
DocketNo. COA07-52.
StatusPublished
Cited by4 cases

This text of 651 S.E.2d 395 (Weaver v. Sheppa) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weaver v. Sheppa, 651 S.E.2d 395, 186 N.C. App. 412, 2007 N.C. App. LEXIS 2206 (N.C. Ct. App. 2007).

Opinion

SMITH, Judge.

Kenneth and Ann Weaver (hereinafter Mr. Weaver and Mrs. Weaver respectively and collectively plaintiffs) appeal entry of judgment notwithstanding the verdict (herein JNOV) pursuant to N.C. Gen.Stat. § 1A-1, Rule 50(b) in favor of defendants. We reverse.

The pertinent facts may be summarized as follows: At approximately 5:00 a.m. on 29 September 2000, Mr. Weaver was unable to stand after sitting down in the bathroom of his home. The symptoms were worse on the left side of his body than the right, and he "felt numb all over." Upon Mr. Weaver's arrival by ambulance at Rex Hospital's Emergency Department (Emergency Department), he informed nursing personnel of neck pain and symptoms in his back and arms.

Soon thereafter, defendant, Dr. Charles Sheppa, examined Mr. Weaver. Defendant Dr. Sheppa informed plaintiff's wife Mrs. Weaver that he had not suffered a heart attack, but surmised that he had some kind of a problem with a disk in his neck. Dr. Sheppa then informed Mrs. Weaver that a *397MRI could be performed on Mr. Weaver's neck, which would enable diagnosis of such problem as might exist with a disk. However, Dr. Sheppa did not order a MRI of Mr. Weaver's neck. Instead, Dr. Sheppa ordered lab work and radiographic studies including a cervical spine film, prescribed pain medication and fitted Mr. Weaver with a soft cervical collar. After Dr. Sheppa discharged Mr. Weaver from the Emergency Department, he still had difficulty walking and continued to experience numbness in both arms and legs.

The following morning of 30 September 2000, Mr. Weaver informed Mrs. Weaver that he was getting weaker and was unable to walk unassisted. Consequently, Mrs. Weaver took Mr. Weaver back to the Rex Hospital Emergency Department, where he came under the care of defendant Dr. Leslie Marshall (Dr. Marshall). Mr. Weaver reported his continuing pain and numbness to Dr. Marshall. Upon returning from Radiology after a CT scan, Mr. Weaver continued to experience complete numbness of his entire left side and progressive numbness with tingling and burning of his entire right side. After completing a physical examination, Dr. Marshall told Mrs. Weaver that Mr. Weaver was being discharged and he needed to follow up with his regular physician on Monday. However, while being assisted to the bathroom in a wheelchair, Mr. Weaver fell out of the wheelchair and proceeded to urinate on himself.

At this juncture, Mr. Weaver was admitted to Rex Hospital but did not receive a MRI until the following day, 1 October 2000. The MRI revealed a large central herniated disk accompanied by significant compression of Mr. Weaver's cervical spinal cord. Findings of the MRI were discussed with the on-call neurologists, Dr. Perkins. Dr. Michael Bowman (a neurologist) and Dr. Robert Allen (a neurosurgeon) subsequently informed Mrs. Weaver that emergency surgery had to be performed immediately.

Dr. Allen performed an anterior cervical discectomy and decompression of Mr. Weaver's spinal cord. Mr. Weaver required hospitalization and rehabilitation for approximately two months. Mr. Weaver regained some use of his arms and legs; however, he needed to re-learn certain everyday functions such as dressing himself, brushing his teeth, and feeding himself using a special spoon. Mr. Weaver also required a standing frame and, eventually, pool therapy in order to learn how to walk again. Over time, Mr. Weaver achieved limited mobility through use of a walker, three-pronged walker, cane and scooter.

On 2 July 2003, plaintiffs' (Mr. and Mrs. Weaver) filed the instant action, alleging inter alia, negligence. The action was heard by a jury on 3 April 2006, before Judge A. Leon Stanback, Jr. At trial, plaintiffs offered a litany of expert testimony from, among others, neurologists and emergency room physicians. Defendants moved for directed verdict at the close of plaintiffs' evidence and again at the close of all evidence in accordance with N.C. Gen.Stat. § 1A-1, Rule 50 (2005). The trial court denied both motions. On 18 April 2006, the trial court declared a mistrial as the jury was unable to reach a unanimous verdict on the issues submitted to them. Defendants then moved for JNOV pursuant to N.C. Gen.Stat. § 1A-1, Rule 50(b), which provides in pertinent part:

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. In either case the motion shall be granted if it appears that the motion for directed verdict could properly have been granted. (emphasis added).

On 20 July 2006, the trial court granted defendants motion for JNOV. Plaintiffs filed timely notice of appeal.

In plaintiffs' sole argument on appeal, they contend the trial court erred by granting JNOV in favor of defendants because plaintiffs presented more than a scintilla of competent evidence at trial which tended to satisfy the element of proximate cause. This argument has merit.

*398A ruling on a motion for JNOV is a question of law for which we provide de novo review. Bahl v. Talford, 138 N.C.App. 119, 122, 530 S.E.2d 347, 350 (2000). When considering a motion for JNOV,

all the evidence must be considered in the light most favorable to the nonmoving party. The nonmovant is given the benefit of every reasonable inference . . . from the evidence and all contradictions are resolved in the nonmovant's favor. If there is more than a scintilla of evidence supporting each element of the nonmovant's case, the motion for . . . judgment notwithstanding the verdict should be denied.

Ace Chemical Corp. v. DSI Transports, Inc., 115 N.C.App. 237, 242, 446 S.E.2d 100, 103 (1994) (citations omitted).

Evidence of medical malpractice sufficient to withstand a motion for JNOV must establish each of the following essential elements: "`(1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff.'" Purvis v. Moses H. Cone Memorial Hosp. Service Corp., 175 N.C.App. 474, 477, 624 S.E.2d 380, 383 (2006) (quoting Weatherford v. Glassman,

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Bluebook (online)
651 S.E.2d 395, 186 N.C. App. 412, 2007 N.C. App. LEXIS 2206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-sheppa-ncctapp-2007.