                                  NO. COA13-1428

                     NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014

LAKISHA WIGGINS and G. ELVIN
SMALL, as Guardian ad litem for
ROY LEE BROTHERS, A Minor,
     Plaintiffs,

    v.                                      Chowan County
                                            No. 08 CVS 186
EAST CAROLINA HEALTH-CHOWAN, INC.
d/b/a CHOWAN HOSPITAL and MICHAEL
DAVID GAVIGAN, M.D.,
     Defendants.


    Appeal by plaintiffs from judgment entered 15 April 2013 by

Judge Gary E. Trawick in Chowan County Superior Court.                      Heard in

the Court of Appeals 22 April 2014.


    Charles G. Monnett III & Associates, by Charles G. Monnett
    III, for plaintiffs-appellants.

    Harris, Creech, Ward and Blackerby, P.A., by Charles E.
    Simpson, Jr. and Thomas E. Harris, for defendant-appellee.


    HUNTER, Robert C., Judge.


    Lakisha      Wiggins       (“Ms.   Wiggins”)    and        G.   Elvin     Small,

guardian   ad    litem   for    Ms.    Wiggins’s   son,    Roy      Lee   Brothers,

(“Roy”) (collectively “plaintiffs”) appeal from judgment entered

on 15 April 2013 in favor of East Carolina Health-Chowan, Inc.

d/b/a   Chowan    Hospital     (“Chowan    Hospital”      or    “defendant”)      on
                                          -2-


plaintiffs’ medical negligence claim.1                     On appeal, plaintiffs

argue that the trial court erred by: (1) instructing the jury on

the sudden emergency doctrine; and (2) failing to instruct the

jury     on    defendant’s      liability       for     unsuccessful    or   harmful

subsequent       medical       treatment        necessitated      by    defendant’s

negligence.

       After careful review, we hold that the trial court erred by

instructing the jury on the sudden emergency doctrine and remand

for a new trial.

                                       BACKGROUND

       The evidence presented at trial established the following

facts:    On    Friday,    8    July   2005,     Ms.    Wiggins   was   admitted    to

Chowan Hospital for labor and delivery of her son, Roy.                       Labor

was    induced    on   Friday     night    but    was    discontinued    until     the

following morning.             Prior to Ms. Wiggins’s arrival at Chowan

Hospital, there was no indication that anything was wrong with

Roy or that he had suffered any injury.                  After a brief pause the

night before, induction resumed at 8:08 a.m. on 9 July 2005 with

the administration of            the drug       Pitocin.     Though required by

hospital protocols, no vaginal exam was conducted at this time.

At around 12:54 p.m., a nurse performed a vaginal exam on Ms.

Wiggins and discovered an umbilical cord prolapse.

1
  Dr. Michael Gavigan (“Dr. Gavigan”) was also named as a
defendant in plaintiffs’ complaint. He is no longer a defendant
to this suit and is not a party in this appeal.
                                               -3-


       A cord prolapse is a condition where the umbilical cord

protrudes from the vagina.                   The baby’s blood supply and oxygen

may become compromised if the cord is compressed.                                   Low blood

flow    and     low     oxygen    can        cause    damage       to   a     baby’s    brain.

Standards of practice require a baby to be delivered as soon and

as     safely    as     possible      by      emergency          cesarean     section    (“C-

section”) in the event of a cord prolapse.

       After discovering the cord prolapse, the nurses immediately

called the attending physician, Dr. Gavigan, and preparations

were made for an emergency C-section.                        It took sixteen minutes

to   move     Ms.     Wiggins     into       the   operating       room.        Dr.    Gavigan

proceeded with the C-section under local anesthetic.

       Roy was delivered at 1:30 p.m. with APGAR scores of 0 at

one minute after birth, 3 at five minutes, and 7 at ten minutes.

An   APGAR      score    is   a   test       designed       to    evaluate      a   newborn’s

physical      condition       using      a    score    of    0-10       and    to   determine

whether any immediate additional or emergency care is needed.

Dr. Charles O. Harris, a practicing obstetrician, testified at

trial that an APGAR score of 0 means the baby had no heart rate,

no respiratory rate, and no muscle tone.                           He further testified

that “[Roy’s] ten minute APGAR was seven which is normal” and

stated that Roy’s initial resuscitation by the pediatric team

“went well.”
                                          -4-


      Following delivery, Roy was transferred to The Children’s

Hospital   of    the   King’s       Daughters      in    Norfolk,      Virginia       (“The

Children’s Hospital”) for further treatment.                         At the time, The

Children’s Hospital was a participant in clinical trials for an

experimental      cooling     procedure     that        is   used     on    newborns       who

suffer brain damage due to low oxygen or blood flow at birth.

The   cooling     is   meant       to   reduce     the       metabolic      needs     of    a

newborn’s brain tissue to help prevent long-term damage.                                 This

procedure was performed on Roy when the transport team arrived.

However, the procedure was discontinued after Roy experienced a

second episode of low oxygen while being cooled.

      Plaintiffs filed a complaint against Chowan Hospital and

Dr. Gavigan on 27 June 2008 alleging that Roy sustained severe

brain injury as a proximate result of defendants’ failure to

perform    a   C-section      in    a   timely     manner.           According      to     the

complaint, Roy has permanent cognitive impairments and loss of

motor   control    due   to    the      complications         with    his    birth.         At

trial, plaintiffs presented testimony of liability expert Dr.

Fred Duboe (“Dr. Duboe”), who testified that Chowan Hospital’s

nurses were negligent by failing to: (1) perform a vaginal exam

immediately     before     administering         Pitocin       as    required       by   the

applicable      standards      of       practice    and        the     hospital’s          own

protocols; (2) notify Dr. Gavigan of the results of the vaginal

exam that should have been performed; (3) give Terbutaline to
                                          -5-


slow or stop Ms. Wiggins’s contractions after the cord prolapse

occurred;    and   (4)      move    Ms.   Wiggins    to     the    operating       room

expediently before Roy’s delivery by emergency C-section.

     Several expert witnesses at trial testified that a cord

prolapse is uncommon and qualifies as a medical emergency.                          All

of the healthcare providers and experts who testified at trial

agreed that Ms. Wiggins did not have any risk factors for a cord

prolapse.

     During the charge conference, defendants requested and the

trial court agreed to give an instruction regarding the sudden

emergency doctrine, which lessens the standard of care for a

defendant in certain emergency situations; plaintiffs preserved

their    objections    to    the    instruction.           The    jury   returned    a

verdict in favor of defendants on 20 March 2013, and judgment

was filed 15 April 2013.             Plaintiffs timely filed and served

notice of appeal.

                                    DISCUSSION

         I. Jury Instruction on the Sudden Emergency Doctrine

     Plaintiffs argue that the trial court erred by instructing

the jury on the sudden emergency doctrine because the doctrine

is   not    applicable      in     medical      negligence       actions     and    was

therefore    misleading      and    likely      affected    the    outcome    of    the

trial.     We agree.
                                      -6-


      The trial court is responsible for ensuring that the jury

is properly instructed before deliberations begin.                  Mosley &

Mosley Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361

S.E.2d 608, 612 (1987) (“It [is] the duty of the [trial] court

to   instruct   the   jury    upon    the   law   with   respect    to    every

substantial feature of the case.”).               A trial court’s primary

purpose in instructing the jury is “the clarification of issues,

the elimination of extraneous matters, and a declaration and an

application of the law arising on the evidence.”              Littleton v.

Willis, 205 N.C. App. 224, 228, 695 S.E.2d 468, 471 (2010).                  In

considering whether to give a requested jury instruction, the

evidence must be viewed in the light most favorable to the party

requesting the instruction.          Carrington v. Emory, 179 N.C. App.

827, 829, 635 S.E.2d 532, 534 (2006).               On appeal, this Court

should   consider     the    jury    charge   contextually    and    in     its

entirety.    Hammel v. USF Dugan, Inc., 178 N.C. App. 344, 347,

631 S.E.2d 174, 178 (2006).

            The charge will be held to be sufficient if
            it presents the law of the case in such
            manner as to leave no reasonable cause to
            believe the jury was misled or misinformed.
            The party asserting error bears the burden
            of showing that the jury was misled or that
            the verdict was affected by an omitted
            instruction.     Under such a standard of
            review, it is not enough for the appealing
            party to show that error occurred in the
            jury   instructions;  rather, it   must  be
            demonstrated that such error was likely, in
            light of the entire charge, to mislead the
                                 -7-


           jury.

Id. (citations and quotation marks omitted).

     The   North   Carolina   Pattern   Jury   Instruction   for   the

standard of care in a medical negligence case is based on the

duties enunciated in Hunt v. Bradshaw, 242 N.C. 517, 521, 88

S.E.2d 762, 765 (1955), and later codified into N.C. Gen. Stat.

§ 90-21.12 (2013).2   It provides that a plaintiff needs to prove

that the defendant was negligent in providing medical care by

establishing a violation of any one of the following duties:

2
  We note that the General Assembly recently amended section
90.21-12 to address the precise issue raised in this appeal.
Subsection (b) provides:

           (b)   In  any   medical   malpractice  action
           arising out of the furnishing or the failure
           to furnish professional services in the
           treatment of an emergency medical condition,
           as the term “emergency medical condition” is
           defined in 42 U.S.C. § 1395dd(e)(1)(A), the
           claimant must prove a violation of the
           standards   of    practice   set   forth   in
           subsection (a) of this section by clear and
           convincing evidence.

N.C. Gen. Stat. § 90-21.12(b).    Thus, rather than lowering the
applicable standard of care, as with the sudden emergency
doctrine, the General Assembly elected to raise the burden of
proof for medical negligence actions arising from treatment of
emergency medical conditions.    However, because this amendment
altered rather than clarified the law, and the facts which form
the basis of this cause of action occurred prior to the amended
statute’s effective date of 1 October 2011, we cannot apply this
provision here. See Ray v. N.C. Dep’t. of Transp., 366 N.C. 1,
8-10, 727 S.E.2d 675, 681-82 (2012) (“In the event that the
amendment is a substantive change in the law, the effective date
will apply.”); see also 2011 Sess. Laws 400 § 11 (noting that
section 90-21.12(b) “become[s] effective October 1, 2011, and
appl[ies] to causes of actions arising on or after that date”).
                                 -8-


         (1) The duty to use their best judgment in
         the treatment and care of their patient;

         (2) The duty to use reasonable care and
         diligence  in   the  application   of  their
         knowledge and skill to their patient’s care;
         and

         (3) The duty to provide healthcare in
         accordance with the standards of practice
         among   members   of   the   same   healthcare
         profession   with    similar    training   and
         experience situated in the same or similar
         communities at the time the healthcare is
         rendered.

N.C.P.I. —Civ. 809.00A (2013).

    Here, in addition to giving the pattern instruction for the

healthcare professional standard in N.C.P.I.-Civ. 809.00A, the

trial court also used the following pattern jury instruction

requested by defendants on the sudden emergency doctrine:

         A person who, through no negligence of his
         own, is suddenly and unexpectedly confronted
         with imminent danger to himself and others,
         whether actual or apparent, is not required
         to use the same judgment that would be
         required if there were more time to make a
         decision. The person’s duty is to use that
         degree of care which a reasonable and
         prudent person would use under the same or
         similar circumstances.   If, in a moment of
         such emergency, a person makes a decision
         that a reasonable and prudent person would
         make under the same or similar conditions,
         he does all that the law requires, even if
         in hindsight some different decision would
         have been better or safer.

N.C.P.I.—Civ. 102.15 (2013).
                                        -9-


    The        applicability    of   the    sudden      emergency     doctrine       in

medical negligence actions is an issue of first impression in

North    Carolina.        Plaintiffs    argue    that     the   sudden     emergency

doctrine does not apply in medical negligence actions because

medical emergencies are already contemplated and built-in to the

standard of care for medical professionals; thus, plaintiffs

argue    that    the   trial   court’s     charge    to    consider      a   what     a

“reasonable and prudent person” would do in a medical emergency

was misleading to the jury, where they were also instructed to

consider defendant’s actions “in accordance with the standards

of practice among members of the same healthcare profession.”

Defendant argues that the sudden emergency doctrine is equally

applicable in medical negligence cases as it is in ordinary

negligence       cases.        Defendant       further     contends        that     the

instruction      regarding     the   sudden     emergency       doctrine     was    not

misleading when considered contextually in light of the entire

jury charge.

    In     a    general    negligence      action    in    North    Carolina,        the

sudden    emergency       instruction    can    be   requested      when     a     party

presents substantial evidence showing that a party (1) perceived

an emergency situation and reacted to it, and (2) the emergency

was not created by that party’s own negligence.                    Carrington, 179

N.C. App. at 829-30, 635 S.E.2d at 534.                 “The doctrine of sudden

emergency creates a less stringent standard of care for one who,
                                           -10-


through    no   fault       of    his    own,    is     suddenly     and    unexpectedly

confronted with imminent danger to himself or others.”                             Marshall

v. Williams, 153 N.C. App. 128, 131, 574 S.E.2d 1, 3 (2002)

(citation and quotation marks omitted).

            The state of the law on the doctrine of
            sudden emergency has been thoroughly stated
            by our courts. One who is required to act in
            an emergency is not held by the law to the
            wisest choice of conduct, but only to such
            choice as a person of ordinary care and
            prudence, similarly situated would have
            been.

Masciulli v. Tucker, 82 N.C. App. 200, 205-06, 346 S.E.2d 305,

308 (1986) (citation and quotation marks omitted).

      Because     our    Courts         have     yet    to   address       whether     this

doctrine applies to medical negligence cases, defendant relies

on cases from Tennessee, New Mexico, and Massachusetts in which

the   appellate       courts       in    those       jurisdictions     have        affirmed

application     of    the    sudden      emergency       doctrine     in    the    medical

negligence context.              In Olinger v. Univ. Med. Ctr., 269 S.W.3d

560   (Tenn.    Ct.     App.      2008),       the   Tennessee     Court     of    Appeals

affirmed    the      trial       court’s   jury        instruction     on    the     sudden

emergency doctrine in a case involving labor and delivery that

left the newborn baby with brachial plexus palsy.                           Olinger, 269

S.W.3d at 561.        The doctor attempted two different maneuvers to

resolve the shoulder dystrocia and it was found that the failure

of those maneuvers was extremely rare.                       Id. at 565.           Experts
                                          -11-


testified    at    trial    that    the    failure    of   a   doctor    to    resolve

shoulder     dystrocia      with     two     typical       maneuvers        should    be

considered a medical emergency.             Id. at 566.        The court stated:

             We agree with [p]laintiffs’ argument that
             because   of   a  physician’s   training   and
             background, the sudden emergency doctrine
             has   a   limited   application   in   medical
             malpractice cases. Simply because there is a
             medical complication does not necessarily
             mean that there is a sudden emergency. We
             are not, however, willing to go as far as
             argued by [p]laintiffs and hold that the
             sudden    emergency    doctrine    never    is
             applicable in a medical emergency situation.

Id. at 568-69.

      In    another   case,    the    Tennessee       Court     of    Appeals       found

material evidence of a sudden emergency when an individual with

a minor cut on her finger subsequently experienced a vasovagal

reaction after an emergency room doctor administered a numbing

shot, and she subsequently fell off the gurney bed and developed

a traumatic brain injury as a result of her fall.                       See Ross v.

Vanderbilt Uni. Med. Ctr., 27 S.W.3d 523, 525-26 (Tenn. Ct. App.

2000).      The plaintiffs argued that the doctor was negligent

because he left the bedside without putting up the bedrails, id.

at   526,    and    “that     the    sudden      emergency      doctrine       is    not

applicable in a medical malpractice case to lower the standard

of   acceptable     professional      practice       required    of    an    emergency

room physician.”       Ross, 27 S.W.3d at 526, 529.                   The appellate

court disagreed and held that “under the appropriate facts,” the
                                     -12-


sudden   emergency       doctrine   may     be     applied    in     assessing     an

emergency room doctor’s fault.            Id. at 530.        In so holding, the

court emphasized the importance of the sudden emergency doctrine

in a comparative fault jurisdiction, while noting there may also

be   instances     where   the   doctrine    may    come     into    play   when   no

comparative fault is alleged.             Id. at 527-28.            The court also

noted that the doctrine does not constitute a defense “as a

matter of law,” and does not negate the defendant’s liability,

but must be considered as a factor in the comparative fault

analysis.    Id.

      Defendant also cites Sutherlin v. Fenenga, 810 P.2d 353,

356 (N.M. Ct. App. 1991), where a 16-year-old boy who came into

the emergency room with a sports injury to his knee died after

an anesthesia machine malfunctioned during surgery, causing a

rupture to his right lung.          The New Mexico Court of Appeals held

the defendant was entitled to an instruction on sudden medical

emergency,       which     would     have        lowered       the      healthcare

professionals’ standard of care.            Sutherlin, 810 P.2d at 360.

      Finally, defendant cites Linhares v. Hall, 257 N.E.2d 429

(Mass. 1970), a case involving a medical negligence suit against

an anesthesiologist after a minor plaintiff suffered a cardiac

arrest during a routine tonsillectomy.                 The plaintiffs argued

that cardiac arrest is always a possible complication during

surgery and it should not be assumed to be “an emergency within
                                     -13-


the meaning of the emergency doctrine.”            Linhares, 257 N.E.2d at

430.    The appellate court disagreed and held “if an emergency

did exist, a fact left to the determination of the jury, the

defendant then and in that event was held to the exercise of a

certain standard of care.”       Id.

       Based   on   these   cases,   defendant     argues   that   the   sudden

emergency doctrine is equally applicable to healthcare providers

in North Carolina as it is to a layperson, and thus the trial

court’s instruction on the sudden emergency doctrine here was

without error.      For the following reasons, we disagree.

       In North Carolina, the sudden emergency doctrine has been

applied only to ordinary negligence claims, mostly those arising

out of motor vehicle collisions, and has never been utilized in

a medical negligence case.           See, e.g., McDevitt v. Stacy, 148

N.C. App. 448, 458, 559 S.E.2d 201, 209 (2002); Ligon v. Matthew

Allen Strickland, 176 N.C. App. 132, 141, 625 S.E.2d 824, 831

(2006); Long v. Harris, 137 N.C. App 461, 467, 528 S.E.2d 633,

637 (2000).     Even in cases where the facts giving rise to suit

could presumably be categorized as sudden medical emergencies,

the general standard of care for healthcare professionals has

been sufficient to assess liability.          See O’Mara v. Wake Forest

Univ. Health Services, 184 N.C. App 428, 434, 646 S.E.2d 400,

404 (2007) (utilizing the healthcare professional standard where

the    plaintiff    alleged   that   a   child’s    spastic    quadriparetic
                                       -14-


cerebral palsy was caused by oxygen deprivation during the final

thirty minutes of birth); Lentz v. Thompson, 269 N.C. 188, 192,

152    S.E.2d    107,    110     (1967)       (applying   the    standard      of

“professional knowledge and skill ordinarily had by those who

practice that branch of the medical art or science” where the

plaintiff’s spinal accessory nerve was severed during surgery).

       The application of the healthcare professional standard of

care to a wide range of factual scenarios is not accidental.

Our    Supreme   Court   has    described       the   standard   for    medical

professionals as “completely unitary in nature, combining in one

test   the   exercise    of    ‘best   judgment,’     ‘reasonable      care   and

diligence’ and compliance with the ‘standards of practice among

members of the same health care profession with similar training

and experience situated in the same or similar communities.’”

Wall v. Stout, 310 N.C. 184, 193, 311 S.E.2d 571, 577 (1984)

(emphasis added) (holding that the passage of section 90-21.12

did not abrogate the duties of healthcare professionals created

at common law).     Part of the standard developed at common law is

to examine a healthcare professional’s conduct in light of the

factual circumstances of the case.               In Brawley v. Heymann, a

semiconscious patient fell off of a narrow examining table to

which he was not secured.         Brawley v. Heymann, 16 N.C. App 125,

128, 191 S.E.2d 366, 367-368 (1972).              This Court held that “[a]

jury could reasonably conclude from such findings that defendant
                                           -15-


failed to give, or see that plaintiff was given, such care as a

reasonably       prudent       physician          in     the     same       or        similar

circumstances would have provided[.]”                   Id. (emphasis added).

      Thus, the standard of care for healthcare professionals,

both at common law and as enunciated in section 90-21.12, is

designed   to    accommodate       the     factual       exigencies      of      any     given

case,    including     those    that       may    be    characterized          as     medical

emergencies.       Therefore,         we   hold        that    the    sudden     emergency

doctrine is unnecessary and inapplicable in such cases, and the

trial court’s instruction on the sudden emergency doctrine here

was   “likely,    in   light    of     the    entire      charge,      to   mislead       the

jury.”     Hammel,     178     N.C.    App.       at    347,    631    S.E.2d       at   177.

Because this erroneous instruction likely misled the jury, we

remand for a new trial.

      Even if we were to hold that that the sudden emergency

doctrine is applicable in medical negligence cases, the trial

court’s specific instructions here would still require a new

trial.     The    trial    court      instructed        the    jury    that      it    should

assess defendant’s actions in light of what a reasonable and

prudent person       would do when faced with the same emergency.

However, even in cases from other jurisdictions where the sudden

emergency doctrine was applied in medical negligence actions,

the language used by those trial courts limited the standard to

a reasonable healthcare professional, not a reasonable person.
                                         -16-


For   example,     the   sudden    emergency     instruction    as    given    in

Olinger was as follows:

             A physician/nurse who is faced with a sudden
             or unexpected emergency that calls for
             immediate action is not expected to use the
             same accuracy or judgment as a person acting
             under normal circumstances who has time to
             think   and   reflect    before   acting.   A
             physician/nurse   faced    with    a   sudden
             emergency is required to act within the
             recognized standard of care applicable to
             that physician or nurse. A sudden emergency
             will not excuse the actions of a person
             whose own negligence created the emergency.

Olinger,     269   S.W.3d     at   564    (emphasis   added).        The   sudden

emergency instruction given in Ross reads:

             A physician who is faced with a sudden or
             unexpected   emergency    that   calls    for
             immediate action is not expected to use the
             same accuracy of judgment as a physician
             acting under normal circumstances . . . .

Ross,   27    S.W.3d     at   526-27      (emphasis   added).   Finally,      the

instruction that the defendant requested in Sutherlin, UJI Civ.

13–1113, was specifically designed for use in medical cases.

Sutherlin, 810 P.2d at 360. UJI Civ. 13-1113 provided that:

             A doctor who, without negligence on his
             part,    is   suddenly    and    unexpectedly
             confronted with peril arising from either
             the actual presence or the appearance of
             imminent danger to the patient, is not
             expected nor required to use the same
             judgment and prudence that is required of
             the doctor in the exercise of ordinary care
             in calmer and more deliberate moments.

Id. (emphasis added).
                                         -17-


       Thus, when compared to the instructions in the cases cited

favorably by defendant, the trial court’s specific language here

was far too general to be considered a sound application of the

law.    The charge instructs the jury to simultaneously apply the

“standards      of    practice   among       members    of    the   same    healthcare

profession with similar training and experience situated in the

same   or    similar     communities     at    the     time   the    health    care   is

rendered” in addition to the duty to “use that degree of care

which a reasonable and prudent person would use under the same

or    similar    circumstances.”             These   duties     are       incompatible.

Healthcare professionals are held to a higher standard of care

than laypersons.         See Leatherwood v. Ehlinger, 151 N.C. App. 15,

20,    564   S.E.2d     883,   886    (2002)    (“[B]ecause         the    practice   of

medicine involves a specialized knowledge beyond that of the

average person, the applicable standard of care in a medical

malpractice          action    must     be      established         through     expert

testimony”), disc. review denied, 357 N.C. 164, 580 S.E.2d 368

(2003); see also N.C. Gen. Stat. 90-21.12(a) (emphasizing that

medical professionals, to avoid liability, must uphold a level

of care in accordance with               “the standards of practice among

members of the same health care profession with similar training

and experience”).

                                      CONCLUSION
                              -18-


    After careful review, we hold that the trial court erred by

instructing the jury on the sudden emergency doctrine.   Because

this error likely misled the jury, we reverse the underlying

judgment and remand for a new trial.



    NEW TRIAL.

    Judges BRYANT and STEELMAN concur.
