Verdicts and Rulings

Plaintiff was a patient at Wayne Memorial Hospital from September 20, 2010 through October 3, 2010.  During that time, his presenting problems of COPD exacerbation and bronchitis were evaluated and treated by the Defendant Hospitalists and Defendant Pulmonologist/Intensivist.  Approximately one week into his hospitalization, Plaintiff began complaining of lower extremity weakness.  One of the Hospitalist Defendants ordered a physical therapy evaluation, which revealed that Plaintiff could not stand independently.  Plaintiff’s weakness was attributed to deconditioning.  During his hospitalization, Plaintiff also complained of abdominal pain.  A surgical consult was obtained, and Plaintiff’s gallbladder was ultimately removed, which seemed to resolve his pain.  Despite multiple recommendations that Plaintiff be discharged to short term rehabilitation, he refused to go and was discharged home on October 3, 2010.

On October 7, Plaintiff was returned to Wayne Memorial by EMS, where admitting documentation states that Plaintiff was “completely unable to move his legs and has had loss of his bladder function.”  An MRI on October 8 revealed a severe compression fracture of T5 resulting in a spinal cord compression.  Plaintiff was transferred to Pitt County Memorial where a neurosurgeon decided that, since symptoms had been present for so long, emergent surgery would result in no improvement of function.  On November 17, 2010, Plaintiff was discharged home with home health for wheelchair mobility.

Plaintiff was a 51-year-old divorced male on disability since 2004 for psychiatric issues.  He had a long history of polysubstance abuse, and despite his diagnosis of severe COPD, he continued to smoke.  Defendants argued that his sedentary lifestyle, prior drug abuse, and comorbidities contributed to the degree and quickness of onset of deconditioning.  Accordingly, Plaintiff’s prior drug use was allowed, over objection, into evidence. 

Plaintiff’s experts contended that the Plaintiff’s weakness was the result of spinal cord impingement and could not be deconditioning because the Plaintiff had severe weakness in his lower extremities, but normal strength in his upper extremities.  They contended that the Defendant Hospitalists and Defendant Pulmonologist/Intensivist were negligent in failing to diagnose a neurological deficit and order either a neurological consultation or an MRI, which would have revealed a spinal cord impingement.  Defendants’ experts contended that the physicians appropriately diagnosed deconditioning and that Plaintiff did not, in fact, have a spinal cord impingement to diagnose during the hospitalization.  They contended that his spinal cord was injured when his family attempted to move him at home after discharge. 

At trial, Plaintiff’s experts contended that the nurses were negligent in failing to perform appropriate neurological assessments in light of Plaintiff’s complaints of weakness and in failing to communicate their findings to the Defendant Hospitalists and Defendant Pulmonologist/Intensivist.  Counsel for the hospital argued in a motion for directed verdict that Plaintiff failed to prove the element of causation because there was no proof that, if the nurses had communicated their findings to the Defendant physicians, the physicians would have done anything differently.  Rather, the evidence showed that the physicians were aware of the Plaintiff’s weakness and had attributed it to deconditioning.  At the conclusion of all evidence, Judge Jenkins granted the Hospital’s motion for a directed verdict.

Defendants also put on evidence of contributory negligence, arguing that Plaintiff was negligent in 1) failing to report a fall that occurred two weeks before the hospitalization; 2) failing to report back pain during the hospitalization; 3) failing to follow the advice of his physicians to go to short term rehabilitation; and 4) failing to return to the hospital when his condition changed at home.  Defendants also entered evidence, over objection, that the Plaintiff subsequently filed a lawsuit against the home health agency, claiming that all of his injuries occurred after a home health visit.

Because the trial was bifurcated by consent of the parties, the Plaintiff was unable to present evidence of the Plaintiff’s current condition, which would have included incredibly sympathetic testimony about the Plaintiff’s daily activities.

The jury deliberated for roughly four hours and thirty minutes before returning the defense verdict for the Defendant Hospitalists and Defendant Pulmonologist/Intensivist.

Defense attorneys:  Leigh Ann G. Smith, Randolph L. Lee, and Arienne P. Blandina, Batten Lee, PLLC, Raleigh, NC for Dr. Metcalf, Dr. Mayo, Dr. Willis, and Eastern Medical Associates, P.A.

Barry S. Cobb and Mindi L. Schulze, Yates, McLamb & Weyher, LLP, Raleigh, NC for Wayne Memorial Hospital

Carlton F. Poston v. Dr. Jack and Beverly Hyatt13-CVS-852, Catawba County

This matter arose from a dog bite incident occurring at Defendants’ home on December 3, 2010.  Plaintiff was a HVAC technician and was performing work on Defendants’ HVAC unit on the day of the incident. 

Defendants’ have owned many Bullmastiff breed dogs in their lives as they both love the breed and have shown their dogs in various AKC competitions over the years.  Two of their prior Bullmastiffs have been AKC champions for the breed.  Defendants’ home also contained an indoor/outdoor room separate from the main living space, so the dogs could go out to their run in the backyard and also come into the indoor/outdoor room of the home.  The indoor/outdoor room was separated from the rest of the home by a dutch-door such that the top half and bottom half of the door swung separately.

On December 3, 2010 Plaintiff was working on Defendants’ HVAC unit in the basement of the home.  He came from the basement to talk to Ms. Hyatt who was standing in the indoor/outdoor room with three of her dogs.  The bottom half of the dutch-door was closed, and Ms. Hyatt and the dogs were on one side of the door and Plaintiff was on the other side.

Ms. Hyatt testified that Plaintiff reached over the door to pet one of her Bullmastiff dogs, Molly, and in doing so startled Molly causing her to bite Plaintiff on the hand.  Plaintiff testified that he was standing beside the door and resting his hand on the top of the door when Molly came up to him and bit the top of his hand without provocation.  Defendants both testified that Molly had never bitten anyone or showed any signs of aggressions before this incident. 

Subsequent to the bite Plaintiff’s puncture wound became infected, and the infection continued on for several weeks.  The infection was found to have been caused by a rare bacteria, Pastuerella Pneumotropica, which is occasionally found in dogs and cats.  Because the infection could not be healed it destroyed the tissue in the middle part of Plaintiff’s hand, and his doctors recommended amputation of his middle finger.  In total, Plaintiff’s medical expenses and lost wages amounted to $100,969.

At the close of Plaintiff’s case in chief Defendants moved for directed verdict on the grounds there was no evidence that Molly had ever shown aggressive tendencies or bitten anyone before.  Therefore Defendants’ had no reason to believe she would have bitten Plaintiff on this occasion.  However there was testimony from two of Plaintiff’s co-workers, who had been at Defendants’ home working on the HVAC unit four years before this incident, that they were scared when one of the Defendants’ dogs barked, growled, and jumped up on the dutch-door while they were in Defendants’ home.  The witnesses were uncertain whether this dog was Molly because Defendants’ owned three Bullmastiffs at this time.  The witnesses described this incident as an attempted attack, although they conceded that while they were scared the dog was always confined to the indoor/outdoor room and never bit, chased, on jumped on them in any way.  As a result of this testimony the motion for directed verdict was denied.

The defense also moved for directed verdict on Plaintiff’s common law claim for strict liability.  Defense counsel argued that a strict liability claim could only be supported by evidence of expert testimony that the particular breed of dog had characteristics of viciousness or aggression.  This motion was again denied because of the testimony from the witnesses describing they were scared by aggressive conduct by one of the Defendants’ dogs four years earlier.

The case went to the jury on four issues: negligence, contributory negligence, strict liability, and damages.  The jury deliberated for about three hours and found Defendants’ negligent, and Plaintiff contributorily negligent.  On strict liability the jury was charged with deciding the issue of whether the Defendants owned or kept a vicious animal?  The jury answered “No” to this issue, and the issue of damages was not reached.

Some members of the jury commented after the verdict that they could see both parties having some responsibility for the bite occurring; however no one believed that Molly was a vicious dog, thereby shielding Defendants from the strict liability cause of action.

This case arose from a motor vehicle accident along I-85 on 9-19-2011 in which Defendant rear-ended the vehicle operated by Plaintiff Aminah Singletary.  Following the accident, Plaintiff’s husband took her to the emergency room. 

Plaintiff was a 49-year-old unemployed/disabled, married female.  She a long and significant medical history prior to the 9-19-2011 MVA that included a diagnosis of multiple sclerosis (MS) in 2005, migraine headaches, neuropathic pain in both lower extremities, fracture in right ankle, back and neck pain, bilateral shoulder pain, and two fusions in her cervical spine.

Defendant’s auto liability carrier paid its policy limits of $30,000 to Plaintiff prior to trial.  Plaintiff’s UIM carrier tried the case.

On 8-10-10, Plaintiff saw her neurologist and reported she had been having difficulties with pain in her neck.  Plaintiff was involved in a motor vehicle accident on 9-3-2010.   She slammed on the brakes but ended up rear ending another car.  On 4-26-11, Plaintiff saw her neurologist’s nurse practitioner and complained of increased pain, numbness and heaviness in her right leg. 

The overwhelming majority of the medical expenses (approximately $149,000 of the total of the $183,000+ in alleged expenses) were incurred through Plaintiff’s treatment with neurosurgeon in Hendersonville, NC.  At trial, Plaintiff only submitted the medical bills associated with the treatment provided by the neurosurgeon; she did not submit the emergency room bills.

Plaintiff’s neurosurgeon testified live and opined that the accident aggravated pre-existing conditions and necessitated two surgeries.  The UIM carrier argued that the surgeries were both unnecessary and unrelated to the accident. 

The treatment with the neurosurgeon began on 7-26-2012 and included two surgeries. On 9-5-12, he performed a subocciptital craniecotmy to address a chiari malformation. On 6-5-13, the neurosurgeon performed a C2 and C7 undercutting laminostomy and C3-C6 cervical laminectomy for cervical stenosis. 

The NC State Medical Board had suspended the neurosurgeon’s license on two occasions:  11-13-2002 (temporary licenses retained beginning on 7-1-2004) and 2-1-2009.  At the time of the surgeries, the NC Medical Board had conditions placed on his medical license (independent examinations by a neurologist before performing certain surgeries).

The UIM carrier arranged for Plaintiff to undergo an independent medical examination with a local neurologist on 11-12-13.  The local neurologist testified by deposition.  The IME physician opined that Plaintiff’s “post accident complaints of pain are likely the result of her underlying disease and not the accident.”  The IME physician also opined that “it is possible that the patient's neck pain was exacerbated after the accident as a result of the trauma interacting with her multiple previous cervical fusions. The right ankle fracture . . . was clearly chronic . . .  All of her other symptoms have been present since long before the accident and are likely due to other causes.”  Finally, the neurologist testified that the surgeries of 9-5-2012 and 6-5-2013 were unnecessary and not related to the accident.

During closing arguments, Plaintiff’s attorney asked for medical expenses of $140,000.  He also suggested a per diem for pain and suffering ranging from $100 per day for 800 days to $1,000 per day for 800 days.  The UIM carrier’s attorney argued that the surgeries were unnecessary and not related to the subject accident.  He also argued that Plaintiff’s neurosurgeon acknowledged that he did not have Plaintiff’s complete medical history, something he admitted was necessary when giving causation opinions.

The jury deliberated for 2 hours, 45 minutes before returning the defense verdict.

Defense Attorney:  Allen C. Smith, Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, NC