Washington v. Rhett

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jamesetta Washington, as Guardian ad Litem for Jayden
W., a minor, Appellant,

v.

Edmund Rhett Jr., M.D. Low Country Obstetrics and
Gynecology, P.A., and Tenet South Carolina, Inc., d/b/a
East Cooper Regional Medical Center, Defendants,

Of whom Edmund Rhett Jr., M.D. is the Respondent.

Appellate Case No. 2010-173247

Appeal From Charleston County
J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2014-UP-055
Heard December 11, 2013 – Filed February 5, 2014

AFFIRMED

Edward L. Graham and John Layton Ruffin, both of
Florence, and Mary H. Watters, of Mt. Pleasant, all of
Graham Law Firm, PA, for Appellant.
Robert H. Hood and Mary Agnes Hood Craig, of Hood
Law Firm, LLC, both of Charleston, and Deborah
Harrison Sheffield, of Columbia, for Respondent.

PER CURIAM: In this medical malpractice case, Jamesetta Washington appeals
from a jury verdict in favor of her obstetrician, Dr. Edmund Rhett, Jr., alleging
several errors by the trial court regarding jury selection, the admission of evidence,
and the jury charge. We affirm.

On July 15, 2002, Jamesetta Washington arrived at East Cooper Regional Medical
Center for the delivery of her first child. After Jamesetta had been in labor for
twenty-four hours, the baby's heart rate showed periods of deceleration, which
caused Dr. Rhett concern over whether the baby was getting enough oxygen. Dr.
Rhett decided to deliver the baby with the help of a vacuum extractor, and the baby
was born three minutes and seven seconds later with the umbilical cord wrapped
around his neck. An arterial blood gas sample indicated the baby was nearly
acidotic and had higher-than-normal carbon dioxide levels and low oxygen levels.
As the baby's condition continued to deteriorate, medical staff transferred him to
the Medical University of South Carolina, where doctors diagnosed him with an
intracranial hemorrhage, and operated on him.

Today, the eleven-year-old child suffers from brain damage, including severe
developmental delays. He struggles with coordination, articulation and speech,
reading and writing, and memory. Jamesetta presented expert testimony from a
pediatric neurologist that the child is unlikely to live independently due to his
disabilities.

Jamesetta brought this medical negligence action as the child's Guardian ad Litem
against several defendants, each of whom settled except Dr. Rhett. Each of her
theories of recovery against Dr. Rhett is based on his alleged negligence regarding
the use of the vacuum extractor. After a thirteen-day trial, the jury returned a
verdict responding "No" to the following question on the verdict form: "Did the
Plaintiff prove by the greater weight or preponderance of the evidence that the
Defendant Dr. Rhett deviated from the standard of care?"

To recover in any action for negligence, a plaintiff must prove the following four
elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant
breached that duty by a negligent act or omission; (3) the plaintiff suffered
damages as a result; and (4) the damages were proximately caused by the breach of
duty. Grier v. AMISUB of S.C., Inc., 397 S.C. 532, 537, 725 S.E.2d 693, 696
(2012). Because the jury determined Dr. Rhett did not breach his duty of due care,
and thus, did not reach subsequent questions related to causation, this court need
not address any issue raised by Jamesetta that relates to causation. See Stephens ex
rel. Lillian C. v. CSX Transp., Inc., 400 S.C. 503, 520, 735 S.E.2d 505, 514 (Ct.
App. 2012) ("Because the jury's verdict [that neither defendant breached its duty of
reasonable care] made it unnecessary for the jury to reach the other issues in the
case, it is not necessary that we address any ruling . . . unless it relates to breach of
[the defendants'] duty of reasonable care."). On this basis, we decline to address
issues related to the admissibility of testimony showing that maternal use of
alcohol or genetics may have caused the child's problems because we find these
issues relate exclusively to the causation element.

As to the trial court's alleged error in refusing to charge the jury on informed
consent, we find Jamesetta's requested charge contained statements that were
inapplicable to the facts of this case, and incorrect statements of the law.
Specifically, (1) the statement, "a physician must respect a competent patient's
refusal of treatment, even in an emergency," is inapplicable because there is no
evidence Jamesetta refused any treatment; (2) the statement, "If a competent
patient refuses treatment, any medical treatment is a battery, even in an
emergency," is legally incorrect, see Linog v. Yampolsky, 376 S.C. 182, 187, 656
S.E.2d 355, 358 (2008) ("[N]o independent cause of action for medical battery
exists in South Carolina."); and (3) the statement, "if the patient is incapable of
providing consent, the consent of a family member [should be sought], before
administering treatment" is legally inaccurate, see Harvey v. Strickland, 350 S.C.
303, 311, 566 S.E.2d 529, 534 (2002) (rejecting doctor's argument he was under a
duty to obtain patient's mother's consent for blood transfusion when patient was
unconscious), as well as inapplicable to the facts of this case because there is no
evidence Jamesetta was incapable of providing consent. As to all other statements
in the requested jury charge, we find the trial court's charge correctly and
adequately covered those points of law. See Welch v. Epstein, 342 S.C. 279, 311,
536 S.E.2d 408, 425 (Ct. App. 2000) ("When reviewing a jury charge for alleged
error, an appellate court must consider the charge as a whole in light of the
evidence and issues presented at trial."); Dalon v. Golden Lanes, Inc., 320 S.C.
534, 540, 466 S.E.2d 368, 372 (Ct. App. 1996) ("It is the trial court's function to
charge the jury on the applicable law as raised by the pleadings and supported by
the evidence.").
As to the jury charge Jamesetta requested on expert compensation, we find the trial
court properly refused to give the charge because a jury may consider any evidence
the jury determines to relate to the credibility of any witness. See generally State
v. McKerley, 397 S.C. 461, 464, 725 S.E.2d 139, 141 (Ct. App. 2012) ("The
assessment of witness credibility is within the exclusive province of the jury.").
The requested charge states:

You should not take into consideration the fact that the
witness is paid unless there is some evidence or
circumstances appearing from the evidence which would
fully and reasonably convince you that the testimony of
the witness has been influenced because of the sum
which he has been paid as a witness.

The charge comes from Ralph King Anderson, South Carolina Requests to
Charge–Civil § 1-6 (2d ed. 2009), which cites Anderson v. Campbell Tile Co., 202
S.C. 54, 24 S.E.2d 104 (1943), in support. However, Anderson is distinguishable
from this case for multiple reasons, including: (1) it is a workers' compensation
case; (2) it does not relate to the admissibility of evidence; and (3) it does not
contain the language Jamesetta requested, or even similar language. Additionally,
Anderson mentions the payment of experts' fees only once—specifically, when
listing it as one of seven factors the Industrial Commission properly considered in
weighing expert testimony. Anderson, 202 S.C. at 64, 24 S.E.2d at 108 (quoting
20 Am. Jur. ¶1206).

As to Jamesetta's argument that the trial court erred in refusing to allow certain
questioning of her expert regarding a study during her reply case, we find the court
acted within its discretion to limit the testimony for three reasons. First, Jamesetta
was the party who introduced the study. Second, and similarly, she was attempting
to undercut the study that she introduced. Third, she had ample opportunity to
question Dr. Gary Oakes, Dr. Rhett, and Dr. Lynn Norton concerning the
parameters of the study or any other relevant material. These three facts support
our conclusion that the trial court acted within its discretion in limiting reply
testimony. See Risher v. S.C. Dep't of Health & Envtl. Control, 393 S.C. 198, 206,
712 S.E.2d 428, 432 (2011) (stating the admission or exclusion of expert testimony
is a matter within the sound discretion of the trial court); Vernon v. Provident Life
& Accident Ins. Co., 266 S.C. 208, 222, 222 S.E.2d 501, 508 (1976) (applying an
abuse of discretion standard to a question of admission of reply testimony).
As to Jamesetta's argument that the trial court erred in admitting demonstrative
evidence, we find the issue unpreserved for appellate review. See Gause v.
Smithers, 403 S.C. 140, 151, 742 S.E.2d 644, 650 (2013) (stating 'an issue cannot
be raised for the first time on appeal, but must have been raised to and ruled upon
by the trial judge to be preserved for appellate review' (quoting Elam v. S.C. Dep't
of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 780 (2004))). Jamesetta argues the trial
court erroneously allowed Dr. Rhett to use a pelvic model and a vacuum pump as
demonstrative evidence. Her primary argument on appeal is that the trial court
allowed the use of these items in contravention of a pretrial case management
order. Her secondary argument is that the model was not to scale, and the pump
was used in a misleading demonstration. Both arguments are unpreserved for a
number of reasons. First, the only objection Jamesetta made at the time Dr. Rhett
introduced the pelvic model was to "the use of a measuring instrument to measure
a dimension that has absolutely no relevance." We read this as an objection to the
introduction of the measurement, not the use of the model. She made no objection
to the vacuum pump. Because she made no objection to either item being used as
demonstrative evidence, nothing has been preserved for this court's review. See id.
Second, at trial, Jamesetta asserted her primary argument—the demonstrative
evidence was used in violation of the case management order—only in connection
to the use of an animation. While she mentioned the model in her argument about
the animation, she never raised the case management order as a basis for
disallowing the use of the pump or the model. Thus, the issue was not properly
preserved. Third, Jamesetta's secondary arguments regarding the misleading pump
demonstration and the model being out of scale were never presented to the trial
court. As a result, this issue is not preserved. See id.

Finally, we find Jamesetta's argument the trial court erred in conducting voir dire is
also unpreserved for appellate review. Twice, the trial court asked Jamesetta if she
had any objection to the voir dire process; both times she responded, "No, Your
Honor." By declining the court's invitation to object, Jamesetta failed to preserve
the issue for appellate review. See id.

For the reasons stated above, the judgment of the trial court is AFFIRMED.

FEW, C.J., KONDUROS, J., and CURETON, A.J., concur.