Opinion
No. 9027SC68
Filed 16 October 1990
1. Trial 52.1 (NCI3d) — medical malpractice — damages — new trial denied The trial court in a medical malpractice action did not abuse its discretion by denying plaintiff's motion for a new trial on the grounds of grossly inadequate damages where plaintiff's funeral expenses were $3,253.59; plaintiff did not seek recovery of the hospital or other medical bills; plaintiff had no minor dependents; plaintiff's income was approximately $390 per week at the time of her death; plaintiff resided with her daughter, son-in-law, and their children; plaintiff's life expectancy at the time of her death was 26.56 years; plaintiff enjoyed a close relationship with her children, grandchildren and father; the trial court gave instructions to the jury to consider all of the above evidence as well as evidence of plaintiff's pain and suffering prior to her death; there were no stipulations between the parties concerning damages; and the jury awarded $4,000.
Am Jur 2d, Physicians, Surgeons, and Other Healers 370.
2. Trial 39 (NCI3d) — medical malpractice — request for additional instructions — no error The trial court did not err in a medical malpractice action by refusing to reinstruct the jury on the issue of damages where the jury, prior to returning a verdict, requested information concerning the amount of funeral expenses; the court instructed the jury that funeral expenses amounted to $3,253.59 and that plaintiff was not seeking recovery of hospital and doctor bills; and plaintiff's request that the entire instruction on damages be repeated was denied. The trial court's answer to the jury question must be read contextually with the other instructions, and it is not clear from the evidence that the jury was confused by this additional information.
Am Jur 2d, Physicians, Surgeons, and Other Healers 363; Damages 988.
APPEAL by plaintiff from judgment entered 31 July 1989 by Judge J. Marlene Hyatt in GASTON County Superior Court. Heard in the Court of Appeals 29 August 1990.
Karro, Sellers Langson, by Seth H. Langson; and Blanchard, Twiggs, Abrams Strickland, by Douglas B. Abrams, for plaintiff-appellant.
Roberts Stevens Cogburn, P.A., by Isaac N. Northup, Jr., for defendant-appellee.
Judge COZORT dissenting.
This appeal arises from a medical malpractice action against defendant alleging, inter alia, that defendant failed to diagnose and treat a condition known as sepsis which caused the death of Peggy Pittman (hereinafter plaintiff) in March 1986.
The case was tried before a jury. On 19 July 1989, the jury found defendant to be negligent in plaintiff's death and awarded plaintiff $4,000.00. Plaintiff moved for a new trial on the issue of damages, and the trial court denied the motion. The trial court entered judgment on 31 July 1989. From this judgment, plaintiff appeals.
Plaintiff argues two assignments of error on appeal. For the reasons below, we affirm the trial court's decision.
Plaintiff first argues that the trial court erred in denying plaintiff's motion for a new trial on the issue of damages under Rule 59 of the N.C. Rules of Civil Procedure. Plaintiff contends that the jury award of $4,000.00 was grossly inadequate and reflected a manifest disregard by the jury of the instructions of the court. We disagree.
A motion for a new trial on the grounds of grossly inadequate or excessive damages under Rule 59 is within the sound discretion of the trial court and may be reversed on appeal only when an abuse of discretion is clearly established. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 484, 290 S.E.2d 599, 603 (1982) (citations omitted); Moon v. Bostian Heights Volunteer Fire Dept., 97 N.C. App. 110, 387 S.E.2d 225 (1990). Our courts have not formulated a precise test to determine what constitutes an abuse of discretion. 305 N.C. at 484, 290 S.E.2d at 604. "For well over one hundred years, it has been a sufficiently workable standard of review to say merely that a manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof." Id. at 484-85, 290 S.E.2d at 604.
A review of the evidence in the case sub judice reveals the following on the issue of damages: Plaintiff's funeral expenses were $3,253.59; plaintiff did not seek recovery of the hospital or other medical bills; plaintiff had no minor dependents; plaintiff's income was approximately $390.00 per week at the time of her death; plaintiff resided with her daughter and son-in-law and their children; plaintiff's life expectancy at the time of her death was 26.56 years; and plaintiff enjoyed a close relationship with her children, grandchildren and father.
The trial court gave instructions to the jury to consider all of the above evidence as well as evidence concerning plaintiff's pain and suffering prior to her death. We note that there were no stipulations between the parties concerning damages. Therefore, the jury must weigh the credibility of the witnesses and may believe any part of the testimony or none of it. Blow v. Shaughnessy, 88 N.C. App. 484, 494, 364 S.E.2d 444, 449 (1988) (citation omitted).
In denying plaintiff's motion for a new trial, the trial court agreed with defense counsel that the verdict covered the amount of funeral expenses. In this regard, defendant's attorney stated, "[t]he only thing, I guess, pain and suffering, loss of consortium, on the evidence the jury could go either way on that. And they made a decision that they thought was adequate." The trial court apparently agreed with this and denied plaintiff's motion. We agree with the trial court and find that the foregoing evidence shows that the trial court did not abuse its discretion in denying plaintiff's motion for a new trial.
Plaintiff next argues that the trial court erred when it refused to reinstruct the jury on the issue of damages. We find this argument to be without merit.
Prior to returning a verdict, the jury requested information concerning the amount of funeral expenses. The trial court instructed: "the funeral expenses amounted to $3,253.59. The plaintiff is not seeking recovery of the hospital and doctor bills. The Court pursuant to law will direct payment of court costs." Plaintiff requested the court to give the entire instruction on damages (which had been given during its initial instructions), and the court denied this request.
THE COURT: Well, I think it answers specifically what they have asked me about.
[Plaintiff's Attorney]: It does, just whether isolating it is appropriate. I would rather see it as part of the whole picture, but those are accurate responses to the questions that they asked.
Plaintiff maintains that because the trial court answered only the question concerning the amount of funeral expenses and added other information concerning medical expenses, and then refused to give the full instruction concerning damages, the jury was confused and misled. As a result of this confusion, the jury allegedly returned an inadequate award.
We note that plaintiff failed to object to the trial court's additional instruction above pursuant to Rule 21 of the General Rules of Practice for the Superior and District Courts. Assuming arguendo that the trial court would have overruled such objection, we have reviewed the evidence of record and find that the trial court did not err.
First, the trial court gave lengthy and clear instructions to the jury concerning what information they should consider in determining the amount of damages. The trial court did not limit these initial instructions to include only funeral expenses, medical bills or court costs. The trial court's answer to the jury question must be read contextually with the other instructions. See State v. Howard, 305 N.C. 651, 290 S.E.2d 591 (1982).
Second, it is not clear from the evidence that the jury was confused by this additional information. The only evidence plaintiff presented with a specific monetary value was that of funeral expenses. Plaintiff provided this Court with no evidence of any other specific damages. Plaintiff's evidence contained references to loss of consortium, pain and suffering, expected earnings and related damages, but there is no evidence of the amount of damages that could have been awarded for such. Under these circumstances, we cannot find that the trial court confused the jury in providing the additional information.
For these reasons, we affirm the trial court's decision.
Affirmed.
Judge DUNCAN concurs.
Judge COZORT dissents.