In its opinion filed on June 20, 2017, the Court of Appeals of North Carolina (“Appellate Court”) held that the trial court was within its discretion to set aside the jury verdict in a North Carolina medical malpractice case on the ground it was grossly inadequate but the trial court acted outside its authority in altering the verdict and thereafter amending the judgment.
The defendant neurosurgeon had performed two surgeries on the decedent’s spine that the plaintiff alleged were negligently performed. The North Carolina medical malpractice jury found that the plaintiff was entitled to recover $512,162.00 for personal injury, but that amount should be reduced by $512,161.00 (resulting in a nominal $1.00 award) because of the decedent’s unreasonable failure to avoid or minimize her damages.
The trial judge subsequently entered an order granting the plaintiff’s motion to amend the judgment and struck the jury’s verdict on mitigation of damages and awarded the plaintiff $512,162.00. The defendant appealed, arguing that the trial court erred by (I) setting aside a valid jury verdict on the issue of the decedent’s failure to mitigate damages and, in the alternative, the trial court erred by (II) entering an amended judgment instead of granting a new trial on all issues, including (III) allowing a defense of contributory negligence.
Appellate Court’s Decision
The Appellate Court held that the trial court’s action in determining that evidence of mitigation of damages was insufficient to justify the verdict did not amount to an abuse of discretion (the trial court determined after the jury’s verdict that, given misleading evidence adduced at trial, it was error to submit the mitigation of damages instruction to the jury).
With regard to the jury’s failure to award compensation for the decedent’s pain and suffering, the Appellate Court stated that the issue before it was whether the trial court was within its discretion to determine that the initial damages award of $512,162.00 was given under the influence of passion or prejudice as it omitted any sum for pain and suffering.
The Appellate Court held that the trial court acted within its discretion to determine that the jury’s initial damages award for $512,162.00 did not include compensation for pain and suffering, and that its reduction of the damages award from $512,162.00 to $1.00 for failure to mitigate damages was excessive. The Appellate Court held, however, that the trial court erred in entering a post-verdict amended judgment instead of granting a new trial, and the Appellate Court remanded for a new trial on damages only (the trial court’s amended judgment changed the jury’s damages verdict from $1.00 to $512,162.00, and thereby improperly ordered relief beyond the scope authorized by Rule 59(a); a trial judge has the authority and discretion to set aside a jury verdict and grant a new trial—in whole or in part— under Rule 59; however, that rule does not allow a trial judge presiding over a jury trial to substitute its opinion for the verdict and change the amount of damages to be recovered).
At trial, the defendant argued for a jury instruction on contributory negligence centered around evidence that the decedent smoked following her first surgery (nicotine prevents fusions from healing, the decedent was told about this, she smoked through her first fusion, and the fusion failed).
The Appellate Court noted that the jury found that the defendant neurosurgeon performed two surgeries for which he lacked a medical indication, compromising the ligaments and muscle that stabilized her head and creating the physical condition that led to her post-laminectomy kyphosis or S-deformity. The Appellate Court noted that the conduct that the defendant points to as evidence of the decedent’s contributory negligence occurred not before or contemporaneous with but following the defendant’s negligent acts that caused injury. The Appellate Court held that in viewing the evidence in the light most favorable to the defendant, there is no evidence the decedent contributed to the negligent conduct that damaged her neck.
Source Justus v. Rosner, No. COA15-1196
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