                             NO. COA13-1053

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 16 September 2014


STEPHEN C. NICHOLSON, Individually
and as Administrator of the Estate
of Geraldine Anne Nicholson,
     Plaintiff,

       v.                                  Robeson County
                                           No. 08 CVS 1845
ARLEEN KAYE THOM, M.D.,
     Defendant.


       Appeal by Defendant from Judgment entered 16 October 2012

and Order entered 19 December 2012 by Judge Mary Ann Tally in

Robeson County Superior Court. Heard in the Court of Appeals 19

February 2014.


       Comerford & Britt, L.L.P., by John A. Chilson and Clifford
       Britt, and Musselwhite, Musselwhite, Branch & Grantham, by
       James W. Musselwhite, for Plaintiff.

       Yates McLamb and Weyher, L.L.P., by Dan McLamb and Andrew
       C. Buckner, for Defendant.1


       STEPHENS, Judge.


                                  Background

       This case arises from claims         of negligence and loss of

consortium    brought   on   21    May   2008   by   Plaintiff   Stephen   C.


1
    Different counsel represented Defendant at trial.
                                     -2-
Nicholson, administrator of the estate of his wife Geraldine

Anne Nicholson (“the decedent”). Prior to 28 June 2005, at the

age of fifty-four, the decedent began experiencing heavy rectal

bleeding. It was later discovered that she had a cancerous tumor

in her rectum. Plaintiff’s claims stem from a surgical procedure

performed by Defendant Arleen Kaye Thom, M.D., to remove the

tumor. The surgery was performed at Cape Fear Valley Medical

Center   (“Cape   Fear”)   on   28   June    2005.   At   the   time    of   the

surgery, Defendant was a general surgeon with special training

and experience in performing cancer surgery. In order to remove

the tumor, Defendant made a large abdominal incision to expose

the decedent’s bowels, a separate incision to completely remove

the rectum and anus, and inserted a colostomy bag to allow stool

to pass through the abdominal wall.

      The    decedent’s         post-surgical        treatment         included

chemotherapy and radiation therapy. Over the next few weeks, as

the   treatment   was   beginning,     the    decedent     started     to    get

unusually sick. She had problems with nausea and diarrhea that

led to abnormalities with her body chemistry. She got weaker and

was readmitted to Cape Fear          for    weakness, inability to           eat,

diarrhea, and problems with electrolytes. On 31 August 2005, two

months and twenty-six days after the surgery, an X ray revealed
                                             -3-
a retained surgical sponge in the right lower quadrant of the

decedent’s abdomen.

       One     week    later,     on    7     September      2005,    an    additional

operation was performed to remove the sponge. The middle part of

the decedent’s abdomen was reopened, and the sponge was removed.

According to expert testimony offered on Plaintiff’s behalf, the

surgery revealed that            “there was a perforation of the bowel

[and]    the    [retained      sponge]       was    contaminated     with   intestinal

contents. There was an abscess2 around [the sponge and] dense

adhesions3 all the way around.” As a result, the surgeon removed

a    section    of    the    decedent’s      bowel,    spent   forty-five      minutes

dividing the scar tissue that was nearby, and ultimately removed

the    sponge.       The    surgeon    did    not    close   the   skin     around   the

abdominal wall because of “the amount of infection that was

present.”4

       After     the        September     surgery,       the   decedent       received

additional care for the open wound. She also underwent multiple



2
  The expert testified that an abscess is “the combination of
bacteria together with the body’s inflammatory cells.”
3
    An adhesion is “scar tissue.”
4
  Specifically, the surgeon “was able to close the inner layer
[of the abdominal wound, but] he was not able to close the
subcutaneous fat and the skin . . . .”
                                              -4-
additional surgeries between September 2005 and February 2006.

The first of these additional surgeries was an attempt to close

the abdominal wound resulting from the previous surgery. This

surgery failed, and another surgery was required to complete

that    procedure.        The    decedent     also     needed     a   third    operation,

according      to        Plaintiff’s      expert,          “because     she     developed

progressive blockage of her intestines from the scar tissue that

was    related      to    the    sca[r]ring         from    the    sponge.”     A   fourth

operation was later required to repair leakage resulting from

the    third   surgery.         Lastly,   the       decedent      required     surgery    to

address an infection of the skin. Plaintiff’s expert testified

that all of these surgeries were necessary as a result of the

retained sponge.

       The expert also testified that the decedent was not able to

complete her chemotherapy and radiation therapy as a result. The

decedent’s cancer returned in July of 2006 and metastasized to

her brain. From the date of her admission to Cape Fear on 31

August 2005 to the date of her death in 2006, the decedent

changed hospitals, “but she never left a hospital bed.” She died

in 2006 as a result of the cancer.

       In   his      complaint,         Plaintiff          alleged     that     Defendant

negligently       failed        to   remove    the     surgical       sponge    from     the
                                            -5-
decedent’s abdomen and, in failing to do so, caused much of “the

damage[]    sustained       by   the   dece[dent]        prior    to    her   death[.]”

Specifically,       Plaintiff        contended      that     Defendant’s          actions

directly and proximately damaged the decedent in the form of

medical bills, pain and suffering, scarring and disfigurement,

“multiple additional medical impairments,” “multiple additional

surgical procedures,” 401 days of life spent in the hospital,

and   an    inability   to       complete      recommended        cancer      treatments

leading to a “shortened life expectancy.” Plaintiff also brought

a   cause   of   action      for     loss    of   consortium,          asserting     that

Defendant’s alleged negligence caused “a loss and disruption of

the   marital    relationship”         he   had   enjoyed    with       the   decedent,

including    “the    loss     and    disruption     of     her    marital     services,

society,     affection,       companionship        and/or        sexual      relations.”

Plaintiff did not bring a cause of action for wrongful death.

Defendant     denied      the       material      allegations          of    Plaintiff’s

complaint by answer filed 30 July 2008.

      During discovery Plaintiff learned that Defendant had been

“disabled”      since   the      middle     of    August    2005.       As    a   result,

Plaintiff served a second request for production of documents on

8 January 2010, seeking a copy of Defendant’s application for

disability benefits, correspondence regarding that claim, and a
                                            -6-
copy    of     all    of   Defendant’s      medical    records         “that       relate     or

pertain to [a disability] in her left arm that she sustained on

or   about”     17     August     2005.    Plaintiff   served          a    third5    set     of

interrogatories on Defendant that same day, seeking the “full

details”       of    the   17     August   2005    injury    to        Defendant’s          arm.

Defendant objected to these discovery requests on 10 February

2010.    One        week   later    Plaintiff      filed     a     motion       to     compel

Defendant to respond to the challenged discovery requests. In an

affidavit       filed      with    the     trial   court,        one       of   Defendant’s

attorneys averred that he believed the requested documents were

protected       under      the     physician-patient        privilege.          The       trial

court, Judge Ola M. Lewis presiding, granted Plaintiff’s motion

to compel by order entered 7 April 2010, with the limitation

that     the    requested         documents    would    be       disclosed           only     to

Plaintiff’s          counsel.     Defendant    appealed      that          order     to     this

Court.

       Following Defendant’s appeal, the trial court entered an

order staying discovery until the matter could be reviewed on

appeal. Defendant also filed a motion to stay proceedings of the

5
    In   his  brief,  Plaintiff   appears to  refer   to  these
interrogatories as his “[s]econd [s]et of [i]nterrogatories.”
The    supplemental  record    indicates, however,   that   the
interrogatories at issue were Plaintiff’s “third set,” not his
second.
                                             -7-
trial    court,    and   that       motion    was    granted       on   15    April      2010.

Despite    the    interlocutory         nature       of    Defendant’s            appeal,    we

reviewed the trial court’s order granting Plaintiff’s motion to

compel     as    affecting      a    substantial          right    and       affirmed       the

decision of the trial court. Nicholson v. Thom, 214 N.C. App.

561, 714 S.E.2d 868 (2011) (unpublished opinion), available at

2011 WL 3570122,         at *2, *8           [hereinafter         Nicholson I],          disc.

review denied, __ N.C. __, 724 S.E.2d 509 (2012). In so holding,

we noted that the         requested documents were protected by the

physician-patient        privilege,      but        pointed    out      that       the   trial

court     is    authorized      to    order        the    production         of    documents

protected by the physician-patient privilege, in its discretion,

when, in the opinion of the judge, they are necessary to serve

the proper administration of justice. Id. at *4–*5. Because of

“the potential relevance of the information contained in the

disputed records,” we concluded that the trial court did not

abuse its discretion by granting Plaintiff’s motion to compel.

Id. at *8. As a consequence, Defendant produced copies of the

requested records on 29 March 2012.6



6
  Plaintiff alleges in his brief that, despite this order,
Defendant   failed to  respond  to  his  “[s]econd” set  of
interrogatories. As we noted in footnote 5, it is unclear
whether Plaintiff is actually referring to his third set of
                                    -8-
      On 14 May 2012, after reviewing the documents, Plaintiff

served a third request for production of documents on Defendant.

Specifically, Plaintiff sought access to “all of” Defendant’s

medical    and   pharmaceutical    records   pertaining   to:   (1)     “her

cervical spine, cervical disc disease, cervical radiculopathy,

cervical    stenosis,    disc     bulge,   and   laminectomy    surgery,”

including magnetic resonance imaging scans; (2) “her diagnosis,

treatment, and monitoring of sacroiliitis”; (3) “her diagnosis

and   treatment    of    depression    and/or    post-traumatic       stress

disorder”; (4) “her diagnosis and treatment of Parsonage-Turner

Syndrome”; and (5) “the brachial plexus neuropathy in her left

arm that she sustained on . . . [17 August 2005].” Plaintiff

also requested a copy of Defendant’s records “from Advanced PT

Solutions, UNC Chapel Hill (neurosurgery), Dr. Viren Desai, Dr.

Pendleton, Dr. Robertson, Dr. Johnson, Dr. Stratus, Dr. Gluck,

Dr.    Bettendorf,      Home    Instead,     Kohll’s/RxMPSS     Pharmacy,

CapeFearDiscountDrug, and Walmart Pharmacy.” Defendant objected

on grounds that the documents were privileged, irrelevant, and

not reasonably calculated to lead to the discovery of admissible

evidence, and Plaintiff again moved to compel production.


interrogatories, the subject of the litigation at issue on
appeal, or whether he is referring to a separate, second set of
interrogatories, which are not included in the record on appeal.
                                        -9-
      On 7 August 2012, the trial court, Judge James Gregory Bell

presiding,     allowed       Plaintiff’s   motion    to   compel.     The   court

concluded      that    the    requested       discovery   was   “relevant    and

reasonably calculated to lead to the discovery of admissible

evidence,” “reasonably tailored to address questions raised by

the   recent    production      of   Defendant’s     medical    and   disability

records, . . . not overly burdensome, and its probative value

outweigh[ed] any potential prejudice to . . . Defendant.” The

court also concluded that the requested medical records were

protected under the physician-patient privilege, but that they

“should be produced because the interests of justice outweigh

the protected privilege.” Defendant appealed that order to this

Court on 13 August 2012.7

      Four days       later, on      17 August 2012,      Plaintiff served a

subpoena and subpoenas duces tecum on counsel for Defendant,

seeking to have Defendant appear on 21 August 2012, testify, and

produce the following documents: (1) “all records requested by

Plaintiff in his 3rd [r]equest for [p]roduction of documents

7
  The record does not indicate that the trial court entered an
order staying the proceedings below or that Defendant sought
such a stay pending review by this Court. Nonetheless, there is
no evidence that Defendant produced the requested discovery.
Rather, the parties proceeded toward trial. Following the trial,
Plaintiff moved to dismiss the appeal as moot, and this Court
granted that motion.
                                         -10-
which were ordered to be produced by . . . Judge Bell on August

7,   2012”   and   (2)   “[t]he    original     or   certified   copy   of   Cape

Fear[’s]     entire      chart    for      [Defendant].”     Defendant       filed

objections and motions to quash on 21 August 2012.8

      Between August 29 and 31 of 2012, Plaintiff issued fifty-

four subpoenas duces tecum to various persons, pharmacies, and

corporations,      requiring      them     to   produce    either   Defendant’s

“entire chart” or her medical and pharmaceutical records from

between January and September of 2005. Counsel for Defendant was

served with copies of those subpoenas on 12 September 2012. On

18 September 2012, Defendant filed an objection and motion to

quash these subpoenas or, in the alternative, for entry of a

protective order.

      The matter came on for trial beginning 1 October 2012 in

Robeson County Superior Court, Judge Mary Ann Tally presiding.

Following an in camera review of the subpoenaed documents, the

trial court denied Defendant’s motion and allowed certain of the

documents to be produced to Plaintiff. The documents were not



8
  On 31 August 2012, Plaintiff also served a subpoena duces tecum
on Cape Fear, again seeking production of Defendant’s “entire
chart.” Cape Fear filed a motion to quash, and the trial court
denied that motion on 1 October 2012. Defendant appealed that
order to this Court on 30 October 2012, but eventually withdrew
that appeal.
                                      -11-
admitted   into     evidence,   but    were    referenced    extensively    by

counsel    for    Plaintiff     in    his     questioning    of     Defendant.9

Plaintiff’s counsel also questioned Defendant about descriptions

of    Defendant’s     medical    condition       from     sealed    affidavits

submitted to the trial court in March of 2010. The affidavits,

which concerned the state of Defendant’s health at that time,

had been submitted by two of Defendant’s health care providers

in support of her request to refrain from attending the trial,

which at that time was scheduled to occur in 2010.

      Other evidence admitted at trial described the course of

the    decedent’s     cancer    treatment.       In     addition,    Plaintiff

introduced a summary of the decedent’s medical bills, totaling

$1,219,660.36, approximately $860,000 of which was considered a

“write-off[]” by the Cumberland County Hospital System and had

not been paid by any source.

      At the conclusion of the trial, the jury returned verdicts

awarding $5,050,000 to the estate and $750,000 to Plaintiff,

individually, for a total award of $5,800,000. The trial court

reduced    that   amount   by    $1,150,000      pursuant    to     Plaintiff’s

settlement with “other defendants in another case” and entered



9
  Counsel for Defendant lodged a continuing objection to this
line of questioning at the beginning of Defendant’s testimony.
                                      -12-
judgment against Defendant on 16 October 2012 for a total amount

of    $4,650,000.10   On     19     October        and   21   November    2012,

respectively, Defendant filed motions for “Amendment of Judgment

(Remittitur) or New Trial” pursuant to Rule 59(a) and “Relief

from Judgment” pursuant to Rule 60(b). The trial court denied

those motions    by order filed        on 19 December 2012.            Defendant

appealed that order and the trial court’s judgment entered upon

the jury’s verdict to this Court on 15 January 2013.

                                   Discussion

      On appeal, Defendant argues that the trial court erred by:

(1) denying her motion to quash the subpoenas duces tecum or,

alternatively, for entry of a protective order; (2) providing

her   medical   records     to    counsel    for    Plaintiff;   (3)   allowing

counsel for Plaintiff to question her concerning her health and

her medical records for the purpose of suggesting that she was

impaired during the surgery she performed on the decedent; (4)

allowing   counsel    for    Plaintiff       to    question   her   and   other

witnesses about the propriety of advising the decedent of the



10
  The trial court’s 16 October 2012 judgment does not indicate
the name of the other defendants. Other sections of the record
on appeal and portions of the trial transcript, however,
indicate that the other defendants included the Cumberland
County Hospital System, Inc., d/b/a Cape Fear Valley Medical
Center.
                                      -13-
medications Defendant was taking at the time of the operation;

(5)   allowing     counsel   for    Plaintiff   to     introduce   evidence    of

medical    bills    “which   were    not    actually    incurred   or   paid   by

[Plaintiff] . . . or any other entity”; (6) instructing the jury

on    permanent    injury;   and    (7)    denying   Defendant’s    motion     for

amendment of judgment (remittitur) or new trial. As discussed

below, we find no error in part, but remand for a new trial on

damages.

       I. Defendant’s Medical and Pharmacy Records

            A. Mootness

       As a preliminary matter, we address Plaintiff’s argument

that Defendant’s appeal from the trial court’s order denying her

motion to quash and allowing the production of her medical and

pharmaceutical records is moot because the subpoenaed documents

were never entered into evidence. We disagree.

       In North Carolina, an issue is moot

            [w]henever[] during the course of litigation
            it develops that the relief sought has been
            granted or that the questions originally in
            controversy between the parties are no
            longer at issue[. In those circumstances,]
            the case should be dismissed [as moot], for
            courts will not entertain or proceed with a
            cause    merely   to    determine   abstract
            propositions of law.
                                             -14-
In re Hamilton, __ N.C. App. __, __, 725 S.E.2d 393, 396 (2012)

(citation omitted).

       In this case Defendant requests that this Court determine

the validity of the trial court’s rulings because she contests

the    result       stemming    from    the    production           of    her    records     to

Plaintiff — the extensive use of those documents by Plaintiff

during       questioning        of     Defendant.            This   issue        remains     in

controversy         between     the    parties          and,    therefore,        would     not

require this Court to merely determine an abstract proposition

of    law.    Therefore,       the    issue    of       the    validity     of    the     trial

court’s ruling on the production and use of Defendant’s medical

and pharmaceutical records is not moot. Accordingly, Plaintiff’s

argument       is     overruled,      and     we       proceed      with    a     review    of

Defendant’s arguments on the merits.

               B. Standard of Review

       “When        the   propriety      of        a     subpoena        duces     tecum     is

challenged, it is . . . addressed to the sound discretion of the

court in which the action is pending.” Vaughn v. Broadfoot, 267

N.C. 691, 697, 149 S.E.2d 37, 42 (1966). “It is well established

that   where        matters    are    left    to       the    discretion    of    the     trial

court, appellate review is limited to a determination of whether

there was a clear abuse of discretion.” White v. White, 312 N.C.
                                             -15-
770, 777, 324 S.E.2d 829, 833 (1985). “A trial court may be

reversed for abuse of discretion only upon a showing that its

actions are manifestly unsupported by reason . . . [or] upon a

showing that [the trial court’s ruling] was so arbitrary that it

could not have been the result of a reasoned decision.” Id.

      With regard to the production and use of contested medical

records,       a     trial         court’s         determination             regarding        the

applicability        of    the     physician-patient           privilege           is   a   legal

question, which is reviewed de novo on appeal. See Nicholson I,

2011 WL 3570122 at *3. However,

              [t]he decision as to whether disclosure of
              information protected by the physician-
              patient privilege is required to serve the
              proper administration of justice is one made
              in the discretion of the trial judge, and
              the   appellant  must   show   an   abuse   of
              discretion    in   order    to    successfully
              challenge the ruling.

Id.   at   *8.     Here,     the    parties     do       not   dispute       the    fact      that

Defendant’s        medical       records     are     protected          by   the    physician-

patient privilege. Rather, Defendant contests the validity of

the   trial      court’s      decisions        to       produce    those       documents       to

Plaintiff      and    allow        Plaintiff       to    use      the    documents          during
                                         -16-
questioning of Defendant. Accordingly, the standard of review

for each of these issues is abuse of discretion.11

              C. Subpoenas Duces Tecum

      Defendant         contends   that     the     trial    court    abused   its

discretion in overruling her objection and denying her motion to

quash Plaintiff’s subpoenas duces tecum or, in the alternative,

for   entry    of   a    protective      order    because    the   subpoenas   were

improperly used for purposes of discovery and their issuance

violated the Health Insurance Portability and Accountability Act

(“HIPAA”). In response, Plaintiff contends the subpoenas were

not   issued    for      the   purpose    of     discovery   and   Defendant    was

properly given notice of their issuance and an opportunity to

object. We find no error.

                    i. The Purpose of the Subpoenas Duces Tecum

                   The subpoena duces tecum . . . is the
              process by which a court requires the
              production   at   the   trial  of   documents,
              papers,   or    chattels   material   to   the
              issue. . . .

              . . . .

              Anything in the nature of a mere fishing
              expedition is not to be encouraged. A party

11
  Defendant argues in her brief that the standard of review in
this context is de novo. At oral argument, however, counsel for
Defendant conceded that the proper standard of review is abuse
of discretion.
                             -17-
         is not entitled to have brought in a mass of
         books and papers in order that he may search
         them through to gather evidence.12

         The law recognizes the right of a witness
         subpoenaed duces tecum to refuse to produce
         documents which are not material to the
         issue   or  which   are   of  a   privileged
         character. Nevertheless, whether a witness
         has a reasonable excuse for failing to
         respond to a subpoena duces tecum is to be
         judged by the court and not by the witness.
         Though he may have [a] valid excuse for not
         showing . . . the document in evidence, yet
         he is bound to produce it, which is a matter
         for the judgment of the court and not the
         witness.

         . . . . [On a motion to quash] a subpoena
         duces     tecum     . . . ,     the    court
         . . . examine[s] the issues raised by the
         pleadings   and,  in   the   light  of  that
         examination, . . . determine[s] the apparent
         relevancy of the documents or the right of
         the witness to withhold production upon
         other grounds. An adverse ruling upon [the]
         movant’s motion to quash . . . gives counsel
         [for the respondent] no right to inspect the
         books, documents, or chattels ordered to be
         produced at the trial, nor does it determine
         the admissibility of [those] items at the
         trial. The subpoena merely requires the
         witness to bring them in so that the court,
         after   inspection,   may   determine  their
         materiality and competency, or so that the
         witness, by reference to the books or
         papers, can answer any questions pertinent

12
   To the extent this paragraph might be   read to allow fishing
expeditions under certain circumstances,   we note this Court’s
clarification that such ventures are       prohibited in their
entirety. State v. Newell, 82 N.C. App.     707, 709, 348 S.E.2d
158, 160 (1986).
                                                -18-
             to the inquiry.

Vaughn, 267 N.C. at 695–97, 149 S.E.2d at 40–42 (citations,

internal quotation marks, parentheses, and an ellipsis omitted).

      Defendant contends that Plaintiff’s subpoenas duces tecum

were improper because they “were not issued to secure evidence

for presentation for trial, as proven by the fact that none of

the   documents        were    offered         into    evidence.”         Rather,      Defendant

contends, “they were simply an improper form of discovery.” We

disagree.

      The    subpoenaed        documents            were   not     offered      into    evidence

during    the     trial       because         the     trial      court    determined        in   a

pre-trial, in camera hearing that they could not be admitted

into evidence. This fact was already established by the time the

trial began and has no bearing on whether the subpoenas were

issued      for     purposes        of        engaging      in     an     improper      fishing

expedition.       Indeed,       as       Plaintiff         notes     in    his     brief,     his

attorneys       were    never        given       an     opportunity        to     inspect     the

subpoenaed        documents      prior         to      their     production.        They      were

sealed,      sent      directly          to     the     courthouse,         and     ultimately

inspected by the trial court, which determined that some of the

documents     should      be    produced         to     Plaintiff’s        counsel      for   use

during    the     trial,      and    some       should      not.    Plaintiff       was     never
                                   -19-
allowed to fish through the documents to gather evidence and,

thus, was not engaging in discovery. Moreover, in light of our

opinion in Nicholson I, we believe the trial court’s decision

that some of the requested records were sufficiently relevant to

require production to Plaintiff, but not so relevant as to be

admitted    as   substantive    evidence,   was   neither   arbitrary     nor

manifestly unsupported by reason. See 2011 WL 3570122 at *8 (“In

view of the potential relevance of the information contained in

the disputed records, we are unable to conclude that the trial

court abused its discretion by ordering Defendant to produce the

requested materials in the interest of justice.”). Accordingly,

Defendant’s argument is overruled.




                  ii. HIPAA

    In     the   alternative,   Defendant   contends    that   Plaintiff’s

subpoenas    duces   tecum    violated   HIPAA    because   they   were   not

accompanied by a court order showing that “reasonable efforts

have been made to ensure that [Defendant was] . . . given notice

of the request and an opportunity to object or that efforts have

been made to obtain a protective order prohibiting the use of

the records for any use other than the proceeding,” citing 45
                                  -20-
C.F.R. § 164.512(e)(1)(ii). Defendant contends that the alleged

violation was prejudicial because her objections would have been

heard   prior   to   the   issuance   of   the   subpoenas   “[h]ad   . . .

Plaintiff[] sought the order [as] required by HIPAA.” Therefore,

Defendant alleges, “[t]he trial judge . . . [denied] defense

counsel any opportunity to review [the subpoenaed documents] and

assert appropriate objections prior to their production.” We are

unpersuaded.

    Section 164.512 of Subchapter C of Title 45, Subtitle A, of

the Code of Federal Regulations provides in pertinent part that,

under HIPAA:

           A covered entity may use or disclose
           protected health information without the
           written authorization of the individual
           . . . or the opportunity for the individual
           to agree or object . . . subject to the
           applicable     requirements     of     this
           section. . . .

           . . . .

           (e) Standard: Disclosures for judicial and
           administrative proceedings — (1) Permitted
           disclosures. A covered entity may disclose
           protected health information in the course
           of    any    judicial   or   administrative
           proceeding:

           . . .

           (ii) In response to a subpoena, discovery
           request, or other lawful process, that is
           not accompanied by an order of a court or
                                   -21-
            administrative tribunal, if:

            (A) The covered entity receives satisfactory
            assurance . . . from the party seeking the
            information that reasonable efforts have
            been made by such party to ensure that the
            individual who is the subject of the
            protected health information that has been
            requested has been given notice of the
            request; or

            (B) The covered entity receives satisfactory
            assurance . . . from the party seeking the
            information that reasonable efforts have
            been made by such party to secure a
            qualified protective order . . . .

45 C.F.R. 164.512 (2013). Section 160.102 of Subchapter C also

states that:

            (a)   Except  as   otherwise  provided,  the
            standards, requirements, and implementation
            specifications adopted under this subchapter
            apply to the following entities:

            (1) A health plan.

            (2) A health care clearinghouse.

            (3) A health care provider who transmits any
            health information in electronic form in
            connection with a transaction covered by
            this subchapter.

45 C.F.R. 160.102 (2013).

       To the extent Plaintiff’s subpoenas did not comply with the

regulations    cited   above,13   such    violation   should   be   charged



13
     We offer no opinion as to whether they did.
                                           -22-
against the covered entities that provided those records, not

against      Plaintiff.        Section        160.102      clearly     states       that

Subchapter     C   of    HIPAA    applies      to    health   plans,     health     care

clearinghouses, and certain health care providers. Plaintiff is

none    of   these      things.        Assuming     without   deciding      that     the

subpoenaed entities in this case qualify as “covered entities,”

it was their obligation to refrain from producing the requested

documentation when they received Plaintiff’s subpoenas if they

determined that the subpoenas did not comply with HIPAA. Because

Plaintiff     is   not    a    “covered       entity”     within   the     meaning   of

section 160.512, he cannot be held liable under Subchapter C of

HIPAA for the subpoenaed entities’ production of the requested

documents. Therefore, the requirements cited by Defendant have

no bearing on whether Plaintiff’s subpoenas duces tecum were

properly issued. Accordingly, Defendant’s argument is overruled.




             D. Providing Defendant’s Records to Plaintiff

       Defendant      next     argues     that      the   trial    court    erred    by

providing Plaintiff with medical and pharmaceutical records that

did    not   comply     with     its    own   order.      Specifically,     Defendant

alleges that the trial court provided Plaintiff with records
                                    -23-
created after 28 June 2005, despite its explicit statement at

trial that documents generated after that date should not be

produced to Plaintiff. In response, Plaintiff asserts that “the

documents provided to this Court . . . [by Defendant]14 were not

properly preserved for appeal” because Defendant did not take

the opportunity to preserve a copy of the documents at trial and

the documents merely constitute those documents that Defendant

“believes may have been provided to Plaintiff’s trial counsel at

trial.” (Emphasis in original). Alternatively, Plaintiff asserts

that the documents provided to counsel caused Defendant no harm

because     Plaintiff     already   knew     about    her     use   of   pain

medications. We find no error.

     Rule    11(c)   of    the   North     Carolina   Rules    of   Appellate

Procedure provides that, when settling the record on appeal,

            [i]f any party to the appeal contends that
            materials proposed for inclusion in the
            record or for filing . . . were not filed,
            served,    submitted    for    consideration,
            admitted, or made the subject of an offer of
            proof, or that a statement or narration
            permitted by these rules is not factually
            accurate, then that party, within ten days
            after expiration of the time within which
            the   appellee    last   served    with   the

14
   These documents were not included in the record on appeal.
Rather, they were submitted to this Court, under seal, pursuant
to Rule 11(c) of the North Carolina Rules of Appellate
Procedure. Plaintiff was not served with a copy.
                              -24-
         appellant’s proposed record on appeal might
         have served amendments, objections, or a
         proposed alternative record on appeal, may
         in writing request that the judge from whose
         judgment, order, or other determination
         appeal was taken settle the record on
         appeal. A copy of the request, endorsed with
         a certificate showing service on the judge,
         shall be filed forthwith in the office of
         the clerk of the superior court and served
         upon all other parties. Each party shall
         promptly provide to the judge a reference
         copy of the record items, amendments, or
         objections served by that party in the case.

         . . . .

         The judge shall send written notice to
         counsel for all parties setting a place and
         time for a hearing to settle the record on
         appeal. The hearing shall be held not later
         than fifteen days after service of the
         request for hearing upon the judge. The
         judge shall settle the record on appeal by
         order entered not more than twenty days
         after service of the request for hearing
         upon the judge. . . .

         If any appellee timely serves amendments,
         objections, or a proposed alternative record
         on appeal, and no judicial settlement of the
         record is timely sought, the record is
         deemed settled at the expiration of the ten
         day period within which any party could have
         requested judicial settlement of the record
         on appeal under this Rule 11(c).

N.C.R. App. P. 11(c).

    Citing Rule 11(c), Defendant has provided this Court with a

number of documents that she believes were produced to Plaintiff

during the trial. In an attached letter to the trial judge,
                                         -25-
Defendant requested confirmation that the documents submitted to

this Court represent those produced to Plaintiff. Plaintiff’s

attorneys were provided with a copy of the letter, but not with

a copy of the proposed documents. There is no indication in the

record before this Court            that the accuracy of the documents

provided by Defendant was ever verified by the trial judge or

that further action was taken to settle the record on appeal

with regard to this question.

     As   described     above,      Rule   11(c)       operates    to    settle    the

record    on   appeal   in    accordance        with   the   objections      of    the

appellee when no judicial settlement is timely sought at the

expiration of the requisite time period. Id.; see also Johnson

v. Nash Comm. Coll., 203 N.C. App. 572, 692 S.E.2d 890 (2010)

(unpublished opinion), available at 2010 WL 1542534 (“When the

[appellee]     objected      to   [the   appellant’s]        proposed     record    on

appeal . . . , [the appellant] filed a statement that he was not

requesting     judicial      settlement.        The    record     on    appeal    was,

therefore, deemed settled in accordance with the [appellee’s]

objections by operation of Rule 11(c) . . . .”).15 Rule 11(c)



15
   Johnson is an unpublished opinion and, therefore, has no
precedential value. N.C.R. App. P. 30(e). Nevertheless, case law
on Rule 11(c) is scant, and our opinion in Johnson provides a
helpful example of the practical application of this rule.
                                       -26-
makes no provision, however, for the requirements for settling

the record on appeal when the appellant is admittedly unsure

about   the    nature    of    the   proposed     supplement    to    the   record,

requests      judicial    settlement,      does    not    serve      the    proposed

documentation     on     the   appellee,   and    judicial     settlement     never

occurs. In that circumstance, we must default to the broader

requirements of Rule 9(a).

    Rule 9(a) states in pertinent part that “review is solely

upon the record on appeal.” N.C.R. App. P. 9(a).

              This Court has held that where certain
              exhibits presented to the trial court were
              not included in the record on appeal, those
              exhibits could not be considered on review
              to this Court. To raise the issue of the
              sufficiency of the evidence to support that
              finding on appeal, [the] defendant must
              preserve the record for appeal. Where the
              record is silent[,] we will presume the
              trial court acted correctly.

State v. Reaves, 132 N.C. App. 615, 619–20, 513 S.E.2d 562, 565

(citations and internal quotation marks omitted), disc. review

denied, 350 N.C. 846, 539 S.E.2d 4 (1999). When the record is

“not completely silent,” but fails to include the information

necessary for appellate review, “we presume the correctness of

the trial court’s decision.” See id. at 620, 513 S.E.2d at 565

(presuming     the   correctness      of   the    trial   court’s     decision   to

order the defendant to produce a report, which the defendant
                                     -27-
argued was protected work product, when the record on appeal

included references to the content of the report, but did not

include the report itself).

     Regarding     the   documents     produced   to   Plaintiff   in   this

case, the trial court ruled as follows:

          THE COURT: . . . .

         . . . .

         I have reviewed the medical records and
         information of [Defendant] that was provided
         pursuant   to   the  subpoenas.   And  after
         reviewing that information, I find that it’s
         in the interest of justice and outweighs the
         privilege for certain information to be
         turned over to Plaintiff’s counsel. The
         information is contained in this material
         that I have in my hand.

         For the record, basically, what I have done
         is    delineated    information    concerning
         [Defendant] that may have some bearing on
         issues in this case using the date of June
         28,   2005,  as  the   cutoff   date.   I  am
         withholding and upholding the privilege with
         regard to any medical information    that has
         to do with dates and times after June 28,
         2005.

    On   appeal,    we   have   no     way   to   ascertain   whether    the

documents submitted in Defendant’s supplement to the record are

the same documents that the trial court turned over to Plaintiff

at trial. Defendant avers that she believes they are, but there

is no evidence that the trial court ever settled this matter.
                                         -28-
Therefore,     we     must    presume    that     the     trial    court      correctly

produced documents to Plaintiff in accordance with the court’s

order.   See    id.      at   619–20,    513    S.E.2d     at     565.   Accordingly,

Defendant’s argument is overruled.

             E. Plaintiff’s Questions Regarding Defendant’s Records

      Defendant       next    argues     that     the    trial     court      erred   in

allowing counsel for Plaintiff to question her (1) concerning

the information contained in Defendant’s medical records that

the trial court ordered produced to counsel for Plaintiff, as

well as the sealed affidavits provided by Defendant, and (2)

with regard to Defendant’s alleged “legal duty” to advise the

decedent that Defendant was taking medications at the time of

the   operation.         Defendant      contends        that    certain       of   those

questions were irrelevant, highly prejudicial, improper without

the   support       of    medical    expert      testimony,       and    inadmissible

hearsay. We find no error.

                     i. Legal Background and Standards of Review

      Rule     401       of   the    North      Carolina       Rules     of    Evidence

establishes that evidence is “relevant” if it has “any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
                                         -29-
401 (2013). All relevant evidence is admissible unless otherwise

provided by rule or law. N.C. Gen. Stat. § 8C-1, Rule 402.

“Evidence        which   is   not   relevant       is   not     admissible.”      Id.

“Although the trial court’s rulings on relevancy technically are

not discretionary and therefore are not reviewed under the abuse

of   discretion      standard   . . . ,     such    rulings     are   given    great

deference on appeal.” Dunn v. Custer, 162 N.C. App. 259, 266,

591 S.E.2d 11, 17 (2004) (citation and internal quotation marks

omitted).

       Rule 403 of the North Carolina Rules of Evidence provides

that   relevant      evidence    may     nonetheless    “be     excluded    if    its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading of the

jury, or by considerations of undue delay, waste of time, or

needles presentation of cumulative evidence.” N.C. Gen. Stat. §

8C-1, Rule 403. We review a trial court’s decision regarding

whether     to    exclude     evidence    under     Rule      403   for   abuse    of

discretion. Wolgin v. Wolgin, 217 N.C. App. 278, 283, 719 S.E.2d

196, 200 (2011).

       Rule 611 of the North Carolina Rules of Evidence provides

the following direction with regard to the manner and order of

questioning and the presentation of evidence at trial:
                                    -30-
           (a) Control by court. — The court shall
           exercise reasonable control . . . so as to
           (1) make the interrogation and presentation
           effective for ascertainment of the truth,
           (2) avoid needless consumption of time, and
           (3) protect witnesses from harassment or
           undue embarrassment.

           (b) Scope of cross-examination. — A witness
           may be cross-examined on any matter relevant
           to   any  issue   in  the   case,  including
           credibility.

           (c) Leading questions. — Leading questions
           should not be used on direct examination of
           a witness except as may be necessary to
           develop his testimony. Ordinarily leading
           questions should be permitted on cross-
           examination. When a party calls a hostile
           witness, an adverse party, or a witness
           identified    with    an    adverse    party,
           interrogation may be by leading questions.

N.C. Gen. Stat. § 8C-1, Rule 611. This Court has determined that

the trial court’s rulings regarding questioning by an attorney

on direct examination and cross-examination under Rule 611 is

reviewed for abuse of discretion. State v. Thompson, 22 N.C.

App. 178, 180, 205 S.E.2d 772, 774 (1974) (holding that the

trial   court   did   not   abuse   its    discretion   in   allowing   the

prosecutor to ask his own witness leading questions relating to

matters not giving rise to the charge); Williams v. CSX Transp.,

Inc., 176 N.C. App. 330, 336, 626 S.E.2d 716, 723 (2006) (“The

trial court is vested with broad discretion in controlling the

scope of cross-examination[,] and a ruling by the trial court
                                      -31-
should not be disturbed absent an abuse of discretion and a

showing that the ruling was so arbitrary that it could not have

been the result of a reasoned decision.”).

    We    also    note   that,    when    considering       alleged    evidentiary

errors in civil cases, “[n]o error . . . is ground for granting

a new trial or for setting aside a verdict or for vacating,

modifying, or otherwise disturbing a judgment or order, unless

refusal   to     take    such    action    amounts     to    the     denial   of   a

substantial right.” N.C. Gen. Stat. § 1A-1, Rule 61 (2013). An

error   affects    a    substantial      right   of   the    appellant    when     it

prejudiced her and, thus, when “it is likely that a different

result would have ensued had the error not been committed.” In

re Chasse, 116 N.C. App. 52, 60, 446 S.E.2d 855, 859 (1994)

(citation omitted).

                  ii. On the Issue of Impairment During Surgery

    Defendant argues that the trial court erred in allowing

counsel   for     Plaintiff      to   question        her    about     information

contained in Defendant’s medical and pharmaceutical records as

well as the sealed affidavits she provided to the trial court in

2010 because such information was not relevant and was “highly

prejudicial” in nature.          Specifically, Defendant contends that

this line of questioning “inevitably tainted the entire trial”
                                            -32-
and    that     Plaintiff          exceeded        the        bounds        of   permissible

examination by asking about side effects discussed in affidavits

submitted by Defendant’s health care providers in 2010. Lastly,

Defendant asserts that the trial court erred by permitting this

testimony      because        a     party     must        present       “medical          expert

testimony” whenever cross-examining another party regarding “the

potential     side     effects       of     medications         being       taken    by    that

party.” We are unpersuaded.

       As a preliminary matter, we note that Defendant was called

and questioned by counsel for Plaintiff as a part of Plaintiff’s

case    in    chief.     The        questioning           Defendant         refers    to     as

impermissible         occurred        entirely           on    direct        and     redirect

examination of Defendant, an adverse party. Therefore, pursuant

to Rule 611, leading questions were permissible. N.C. Gen. Stat.

§ 8C-1, Rule 611(c). In addition, it is helpful to understand

that   this    case     was       tried   under      a    theory       of    negligence       as

established by the doctrine of res ipsa loquitur.

                   Uniformly, in this and other courts,
              res ipsa loquitur has been applied to
              instances where foreign bodies, such as
              sponges . . . , are introduced into the
              patient’s body during surgical operations
              and left there.

              . . . .
                                          -33-
            . . .   [T]he    well-settled    law  in   this
            jurisdiction is and has been that a surgeon
            is under a duty to remove all harmful and
            unnecessary     foreign     objects   at    the
            completion   of    the   operation.  Thus   the
            presence of a foreign object raises an
            inference of a lack of due care. When a
            surgeon   relies     upon   nurses   or   other
            attendants for accuracy in the removal of
            sponges from the body of his patient, he
            does so at his peril. . . .

            . . . .

            . . . The application of res ipsa loquitur
            allows the issue of whether [the] defendant
            has complied with the statutory standard to
            be   submitted    to   the   jury    for   its
            determination. Although the application of
            the doctrine requires the submission of the
            issue to the jury, the burden remains upon
            the plaintiff to satisfy the jury that the
            defendant has failed to comply with the
            statutory    standard.    [The    d]efendant’s
            evidence that he complied with the statutory
            standard does not remove the case from the
            jury’s determination. As the trier of the
            facts, the jury remains free to accept or
            reject the testimony of [the] defendant’s
            witnesses.

Tice   v.   Hall,    310    N.C.   589,    592–94,   313   S.E.2d      565,   567–68

(1984) (citations and internal quotation marks omitted; emphasis

and    certain      italics    added).       Therefore,    the        testimony   of

Defendant,       elicited     on    direct       examination     by     Plaintiff’s

counsel, is relevant and admissible to the extent that it makes

the existence of any fact that is of consequence to the jury’s
                                      -34-
determination    more    or    less   likely     to    be    true    and     is   not

otherwise inadmissible.

     On direct examination of Defendant, counsel for Plaintiff

questioned her extensively about whether she had taken narcotic

and non-narcotic pain medications leading up to and during the

surgery. Defendant responded that she was taking narcotic pain

medications leading up to the surgery, but that she only took

non-narcotic pain medications during the surgery. Defendant also

stated that side effects from the narcotic pain medications were

not present at the time of the surgery.

     Plaintiff    questioned      Defendant      further     about     information

contained in sealed affidavits that Defendant provided to the

trial court in 2010. Counsel for Plaintiff did not reference the

affiants or their affidavits, but used the information contained

therein   to   question       Defendant   about       side   effects       that   she

experienced    after    the    surgery    when   taking      the    same    narcotic

medications16 that she admitted to taking before the surgery.

Though Defendant acknowledged that she took the same narcotic

medications before and after the surgery, she only admitted to

experiencing side effects after the surgery.



16
  Defendant was prescribed an increased amount of one of those
medications during this time.
                                        -35-
       The   questions   asked     by   counsel    for   Plaintiff   sought   to

elicit and did elicit relevant testimony. Whether Defendant was

using pain medication in the period of time leading up to and

during the surgery addresses whether she may have breached her

duty of care during the surgery. As Defendant admitted, the side

effects from some of her medications “might” have had an effect

on a doctor’s capabilities. Moreover, the extent to which those

same    medications      may     have   caused     Defendant    to   experience

confusion and impairment of cognitive function at a later point

in time is relevant to whether those admittedly appreciable side

effects occurred prior to and during the surgery. Defendant’s

responses to Plaintiff’s questions dealt with these issues. As a

result, her testimony had some tendency to make consequential

facts   more    or   less      likely   to   be   true   and,   therefore,    was

relevant. In addition, given our opinion in Nicholson I, which

concluded that certain of Defendant’s medical records could be

relevant, and considering Plaintiff’s burden of establishing not

only that the sponge was left in the decedent’s body, but of

satisfying the jury that Defendant failed to comply with her

duty of care in allowing the sponge to be left in the decedent’s

body, we conclude that it was not an abuse of discretion for the

trial court to decline to exclude this line of questioning under
                                  -36-
Rule 403. Accordingly, Defendant’s argument is overruled to the

extent that it relates to relevance and prejudice.

    Defendant    argues      further,    however,    that   Plaintiff’s

questions regarding the side effects of the medications were

inappropriate because (1) the questions were not supported by

expert testimony as to the side effects, and (2) Plaintiff’s

reference to the side effects as coming from a “prescription

warning   that   I     obtained   from   a   local    pharmacist”   was

inadmissible hearsay. Again, we are unpersuaded.

    Defendant’s argument is based on the following questioning

of Defendant by counsel for Plaintiff:

          Q. You said earlier as far as the Cymbalta[,]
          that you were taking that at the time you
          performed surgery on [the decedent], correct?

          A. I believe so.

          Q. Again,   this   is   another   prescription
          warning   that   I  obtained   from  a   local
          pharmacist.

          A. Uh-huh.

          Q. I want to read this and ask if you are
          familiar with this warning as it relates to
          the medication especially with you being a
          physician.

          A. Uh-huh.

          Q. This drug . . . may . . . make you dizzy
          or drowsy. Do not drive, use machinery, or do
          any activity that requires alertness.
                     -37-


Do you agree or disagree with the warning
that goes with that medication?

A. I agree. If you have — if you’re taking
this medication and you have any dizziness or
drowsiness   as   a  side   effect  of   that
medication, then you should refrain from
driving. But not everybody reacts to the
medications the same way, and not everybody
has the same side effects. But certainly, if
you have those side effects, you should warn
— you should heed those warnings. I do not
have those side effects.

Q. Well, the warning says that the medication
can affect your alertness. Now, number one,
do you need to be alert in a long and
complicated surgical procedure?

A. Yes, you do.

Q. In your opinion — even though you are
aware   of  these  warnings  you  take  the
medication. In your opinion, does it affect
your alertness?

A. The Cymbalta?

Q. Yes.

A. No.

Q. Has it ever affected your alertness?

A. No.

Q. Has it ever made you drowsy?

A. No.

Q. So you’ve not had any problem with the
warnings that they give?
                                 -38-
         A. Correct.

         Q. That doesn’t mean that you can’t have
         those problems. I mean, certainly, you can;
         is that correct?

         . . . .

         A. Usually, if you’re going to have those
         side effects, you experience them early on
         when you’re given the prescription.

    Defendant   first   argues   that   the   above   questioning   was

improper because it was not supported by expert testimony as

required by Smith v. Axelbank, __ N.C. App. __, 730 S.E.2d 840

(2012) and Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d 63

(2001), vacated in part and appeal dismissed on other grounds,

356 N.C. 415, 572 S.E.2d 101 (2002). We disagree.

    The plaintiff in Axelbank, after experiencing deleterious

side effects from a drug prescribed by her doctor, brought suit

for medical malpractice or, alternatively, for negligence under

a theory of res ipsa loquitur. __ N.C. App. at __, 730 S.E.2d at

842. Her complaint did not include certification by a medical

expert pursuant to Rule 9(j) of the North Carolina Rules of

Civil Procedure. Id.

         Rule 9(j) states that a complaint alleging
         medical   malpractice  shall   be  dismissed
         unless a plaintiff asserts in her complaint
         that her medical care has been reviewed by a
         person who is willing to testify that the
         medical care did not comply with the
                                      -39-
         applicable standard of care, and that this
         person   must  be   reasonably  expected to
         qualify as an expert witness under . . .
         Rule 702 or must be a person the plaintiff
         will seek to have qualified as an expert
         . . . . Alternatively, a plaintiff must
         allege facts establishing negligence under
         the doctrine of res ipsa loquitur.

Id. On appeal, we held that the trial court properly dismissed

the plaintiff’s complaint for failure to state a claim because

she did not include certification under Rule 9(j) and she failed

to allege facts establishing negligence under the doctrine of

res ipsa loquitur. __ N.C. App. at __, 730 S.E.2d at 842–43

(“Here, a layperson would not be able to determine that [the]

plaintiff’s    injury      was   caused   by   [the    drug]   or   be   able   to

determine that [the doctor] was negligent in prescribing the

medication    to   [the]    plaintiff     without     the   benefit   of   expert

testimony.”).

    In Assimos, the plaintiff brought suit against her doctor

for medical malpractice under a theory of res ipsa loquitur due

to side effects she experienced as a result of the doctor’s

alleged “failure to adequately[,] properly[,] and fully inform

her of the risks known to be associated with the administration

of [a] drug . . . given to [her] during her treatment.” 146 N.C.

App. at 340, 553 S.E.2d at 65. The plaintiff’s complaint did not

include a Rule 9(j) certification. Id. at 342, 553 S.E.2d at 66.
                                      -40-
Relevant to the issues we are considering in this case, we held

that the trial court did not err in dismissing the plaintiff’s

medical   malpractice    action      for   failure   to    state    a    claim    of

negligence under the doctrine of res ipsa loquitur. Id. at 343,

553 S.E.2d at 67. We noted that the side effects of the drug

were not within the jury’s common knowledge, and, therefore,

expert    testimony     was   necessary       to   establish       the   relevant

standard of care. Id.

       Axelbank and Assimos address a plaintiff’s obligation to

include medical expert certification with her complaint when the

doctrine of res ipsa loquitur does not apply to establish an

inference of negligence. Here, however, the parties are not at

the pleading stage, and the applicability of the doctrine of res

ipsa loquitur is not at issue. Our Supreme Court has already

made clear that there is a defined standard of care in cases

involving foreign objects left in the body and that the legal

doctrine of res ipsa loquitur is applicable on the issue of

breach of that standard of care. Tice, 310 N.C. at 592–94, 313

S.E.2d at 567–68. The questions regarding the side effects from

Defendant’s medications were asked to confirm the inference that

Defendant was negligent while performing the surgery. Indeed,

when   the   standard    of   care    is     established    pursuant      to     the
                                      -41-
doctrine of res ipsa loquitur, as here, our opinions in Axelbank

and Assimos indicate that expert testimony is not necessary to

establish     the     relevant       standard        of     care.        Accordingly,

Defendant’s    argument     is    overruled     as    it    relates       to   whether

expert testimony was required to establish the side effects of

the drugs taken by Defendant.

    Defendant also argues that the challenged questioning was

improper    because        Plaintiff’s        reference       to     the       warning

Plaintiff’s     counsel        obtained      from     the     local        pharmacist

constitutes inadmissible hearsay with regard to the side effects

of the medications she was taking. We disagree.

    Hearsay     is    “a   statement,        other   than     one    made      by   the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C-1, Rule 801. Subject to a number of well-defined

exceptions, hearsay is inadmissible. N.C. Gen. Stat. § 8C-1,

Rule 802. In this case, Plaintiff’s questions were not asked to

establish the truth of the warnings obtained from the pharmacist

nor to prove the        particular side effects              of the medications

Defendant     was    taking.     Rather,      they    were    asked       to    elicit

Defendant’s     testimony        regarding     the    extent        to    which     her

medications might have affected her judgment during the surgery.
                                             -42-
Therefore,       this        line     of      questions          did     not     constitute

inadmissible         hearsay.        Accordingly,          Defendant’s         argument        is

overruled.

                     iii. On the Issue of Defendant’s Alleged Duty to
                         Advise

       Defendant      next     argues        that    the     trial       court       erred    by

allowing counsel for Plaintiff to ask Defendant whether she had

a “legal duty” to advise the decedent regarding Defendant’s use

of medications prior to the surgery. Citing this Court’s opinion

in   Atkins     v.   Mortenson,        183    N.C.       App.     625,   644     S.E.2d      625

(2007),    Defendant        contends       that     such    questioning         should       have

been   supported       by    expert     testimony        establishing          the    relevant

standard of care. We disagree.

       In Atkins, we affirmed the trial court’s award of summary

judgment    to    the   defendant          doctor    in     the    plaintiff’s         medical

malpractice      action       for     failure       of     the    doctor    to       recognize

symptoms of illness and recommend appropriate treatment. Id. at

630, 644 S.E.2d at 628. In so holding we pointed out that, in

medical    malpractice         cases,       the     standard       of    care    “generally

involves specialized knowledge” and, therefore, expert testimony

is necessary to show a breach of the standard. Id. at 630, 644

S.E.2d     at    629.       Atkins     does       not,     however,      stand       for     the

proposition that an attorney is obligated in a res ipsa loquitur
                                          -43-
case, in order to support direct examination of the defendant

physician, to offer expert testimony regarding the standard of

care    for    that     physician’s        disclosure         to      her    patient      of

information        regarding      the    physician’s          use     of     medications.

Rather, it addresses whether the plaintiff in that particular

case   was    able    to    forecast      sufficient       evidence         to    withstand

summary judgment.

       Here, unlike Atkins, an inference of a lack of due care was

raised because a foreign object — the sponge — was left in the

decedent’s body. See Tice, 310 N.C. at 594, 313 S.E.2d at 568.

Therefore,     as     discussed         above,       expert     testimony         was     not

necessary     as     “the    presence     of     a    foreign       object       raises   an

inference of a lack of due care” sufficient to submit the case

to the jury for determination of whether Defendant breached her

duty. See id. at 593, 313 S.E.2d at 567. Furthermore, the cited

portions of the transcript do not indicate that counsel for

Plaintiff     ever    used     the   phrase      “legal       duty”    when      examining

Defendant. Rather, counsel asked Defendant, for example, whether

she felt “it necessary to tell any of [her] patients or to

inform any of [her] patients [about her use of medications] so

they   [would]       have    an   opportunity         to   decide      for       themselves
                                       -44-
whether or not they want[ed her] doing the surgery.”17 Under the

circumstances of this case, Atkins is unavailing. Accordingly,

Defendant’s argument is overruled.

      II. Evidence of the Decedent’s Medical Bills

      Defendant      also   argues     that    the      trial    court     erred   in

allowing Plaintiff to present evidence of the decedent’s medical

bills — totaling $1,219,660.3618 — because approximately $860,000

of   that   total    was    “written    off”       by   the     Cumberland      County

Hospital    System    and   never    paid     by    any   party.     “By    allowing

Plaintiff[] to contend [that the decedent’s] medical expenses

totaled [over $1,000,000.00], rather than the true amount her

estate   was   obligated     to   pay,”     Defendant         argues,    “the   court

[erroneously] permitted Plaintiff[] to substantially inflate the

value of [his] claim in the minds of the jurors.” Alternatively,

Defendant contends that, if the introduction of these bills was



17
   Counsel for Plaintiff later asked one of Defendant’s expert
witnesses whether “there is . . . [a] legal or ethical
obligation on the part of the doctor, or in this case a surgeon,
to inform [her] patient prior to surgery that the physician is
taking pain medication [including narcotics],” but that question
is not challenged on appeal.
18
   In her brief, Defendant cites Plaintiff’s Exhibit 3 for the
fact that the medical bills totaled “$1,019,467.11.” The copy of
Plaintiff’s Exhibit 3 submitted to this Court, however, states
that the medical bills actually amounted to $1,219,660.36.
Accordingly, we use the latter figure.
                                       -45-
proper, she should have been allowed to introduce evidence of

the fact that a substantial portion of the bills was written off

by the hospital. Plaintiff responds that the medical bills were

admissible,     but   the    write-offs       were   not,        pursuant   to   the

collateral source rule. We conclude that the collateral source

rule is not applicable here and, as a result, hold that the

trial court erred by failing to admit evidence of the hospital

system’s write-offs.

     For cases filed before 1 October 2011, the admissibility of

evidence   of   medical     expenses    is    governed      by    the   common   law

collateral source rule.19 According to that rule,

           evidence   of   a   plaintiff’s    receipt  of
           benefits for his or her injury or disability
           from sources collateral to [the] defendant
           generally is not admissible. These benefits
           include   payments   from   both   public  and
           private sources. This rule gives force to
           the   public   policy    which   prohibits   a
           tortfeasor from reducing [its] own liability
           for damages by the amount of compensation
           the   injured    party    receives    from  an
           independent source. Evidence of collateral
           source payments violate the rule whether

19
  In 2011, the collateral source rule was abrogated by Rule 414
of the North Carolina Rules of Evidence with regard to evidence
of past medical expenses. N.C. Gen. Stat. § 8C-1, Rule 414. Rule
414 is not applicable in this case, however, because Plaintiff’s
action was commenced in 2008, before the effective date of this
new rule. See 2011 N.C. Sess. Law 283, sec. 4.2 (stating that
Rule 414 applies to actions commenced on or after 1 October
2011).
                                    -46-
           admitted in the defendant’s case-in-chief or
           on cross[-]examination of the plaintiff’s
           witness.   The    erroneous   admission   of
           collateral source evidence often must result
           in a new trial.

Badgett v. Davis, 104 N.C. App. 760, 763, 411 S.E.2d 200, 202

(1991)    (citations,   internal     quotation   marks,    and   brackets

omitted), disc. review denied, 331 N.C. 284, 417 S.E.2d 248

(1992).

           The purpose of the collateral source rule is
           to exclude evidence of payments made to the
           plaintiff   by   sources  other    than   the
           defendant when the evidence is offered for
           the purpose of diminishing the defendant
           tortfeasor’s   liability  to    the   injured
           plaintiff. . . . The rule is punitive in
           nature[] and is intended to prevent the
           tortfeasor from a windfall when a portion of
           the plaintiff’s damages have been paid by a
           collateral source.

Wilson v. Burch Farms, Inc., 176 N.C. App. 629, 638–39, 627

S.E.2d 249, 257 (2006) (citations, internal quotation marks, and

certain    brackets     omitted).     In   the   context    of       medical

malpractice,   our    Supreme   Court   has   indicated   that   a   source

collateral to the defendant can include “a beneficial society,

the plaintiff’s family or employer, or an insurance company.”

Cates v. Wilson, 321 N.C. 1, 5, 361 S.E.2d 734, 737 (1987)

(citation and internal quotation marks omitted). When payment

comes from such a source, “an injured plaintiff is entitled to
                                              -47-
recovery for reasonable medical, hospital, or nursing services

rendered [her], whether these are rendered . . . gratuitously or

paid for by [her] employer.” Id. (citations, internal quotation

marks, and ellipsis omitted). “In summary, the collateral source

rule excludes evidence of payments made to the plaintiff by

sources other than the defendant when this evidence is offered

for    the    purpose        of    diminishing        the       defendant         tortfeasor’s

liability to the injured plaintiff.” Badgett, 104 N.C. App. at

764, 411 S.E.2d at 203.

       Plaintiff relies on our opinion in Badgett to support his

argument that the collateral source rule is applicable in this

case. We disagree. In Badgett, the plaintiff sued his doctor in

negligence         for    knowingly        prescribing          a    drug    to        which    the

plaintiff     was        allergic.      Id.    at   761,    411      S.E.2d       at    201.     The

plaintiff     became        ill   and    was    treated         at   a   hospital.        Id.     At

trial,    the      court    admitted       evidence        of    the     plaintiff’s           total

hospital and doctor’s bills, evidence that a portion of the

bills had been paid by Medicare, and evidence that, “according

to the hospital’s contract with Medicare, the unpaid balance was

written      off    and    could     not      thereafter        be   collected          from     the

plaintiff.” Id. at 762, 411 S.E.2d at 201–02. On appeal, we held

that   the    admission       of     the      Medicare     payments         and    contractual
                                           -48-
write-offs,        which   we     referred     to    as    “gratuitous      government

benefits,” was prejudicial and in violation of the rule. Id. at

764, 411 S.E.2d at 203.

       In this case, unlike Badgett, the hospital bills were not

paid by an independent third party. There is no evidence in the

record that Medicare, Medicaid, some other insurance company, a

beneficial society, Plaintiff’s family, or Plaintiff’s employer

paid a portion of the decedent’s medical bills and/or procured

the write-offs. Rather, the bills appear to have been forgiven

by the hospital of its own accord as a business loss. In an

affidavit obtained by Defendant and not admitted into evidence,20

the    hospital’s     custodian      of    records    characterized         the    unpaid

medical bills as “‘[r]isk [m]anagement’ write-offs,” which “were

not    paid   by    any    source    (including      the    patient    or    insurance

company).” In addition, the evidence in the record indicates

that    the   hospital      was     also   a   defendant     in   a   separate      suit

brought by Plaintiff arising out of the same facts. The hospital

ultimately     settled       that     lawsuit,       and    the   amount      of     that

settlement was applied to reduce Plaintiff’s verdict in this

case.



20
   Defendant submitted the affidavit to the trial court as an
offer of proof, however.
                                       -49-
    We     can   find     no   cases    in    this     jurisdiction    directly

addressing   the     situation   in     which    a   defendant   doctor    in   a

medical malpractice case attempts to introduce evidence that a

hospital, which has settled with the plaintiff in a separate

action   arising   from    the   same    facts,      reduced   the   plaintiff’s

medical bills pursuant to “risk management” practices and not

pursuant to a contract with a government entity like Medicare or

with some other insurance company. Moreover, we have been unable

to find any cases from other jurisdictions dealing with this

particular, narrow factual scenario. Nevertheless, a number of

courts have held, like Badgett, that the costs written off by a

contract   between    a   non-tortfeasor        hospital   and   a   government-

funded assistance program like Medicare are not admissible under

the collateral source rule. See, e.g., Pipkins v. TA Operating

Corp., 466 F. Supp. 2d 1255 (D.N.M. 2006) (holding that the

collateral source rule applied to contractual Medicare write-

offs made by the injured plaintiff’s health care provider). When

the hospital is a separate tortfeasor and writes off medical

expenses pursuant to an agreement with a third party, however,

other courts have concluded that the collateral source rule is

not applicable. See, e.g., Rose v. Via Christi Health Sys., Inc.

/ St. Francis Campus, 279 Kan. 523, 529, 113 P.3d 241, 246
                                           -50-
(2005)    (“Under      the     facts    of    this    case,      the    source   of   the

$154,000 of medical services not reimbursed by Medicare was [the

hospital],       the     tortfeasor,         not     an    independent        source.”);

Williamson v. St. Francis Med. Ctr., Inc., 559 So.2d 929, 934

(La. App. 2 Cir. 1990) (holding that the collateral source rule

did not apply to allow the plaintiffs to recover medical bills

cancelled by the hospital pursuant to an agreement with Medicare

because “the hospital, to whom the bill was owed, was also a

tort[]feasor”         and,    therefore,      the    benefit      to    the   plaintiffs

resulted from the hospital’s own “procuration or contribution”).

       Here,    the    record    does    not       indicate      that   the   decedent’s

medical bills were written off pursuant to an agreement with an

independent party. Rather, they were discharged by the hospital,

also     an    alleged       tortfeasor,      which       ultimately     settled      with

Plaintiff. Unlike Badgett, the paying party in this case was not

independent and not collateral to this matter. The payment was

made by a separate, alleged tortfeasor and not pursuant to an

agreement with a separate, collateral source. Therefore, we hold

that   the     collateral       source       rule    is    not    applicable     to   bar

evidence of the hospital bills that were written off by the

Cumberland County Hospital System. Accordingly, Plaintiff was

entitled to introduce evidence of the decedent’s medical bills,
                                          -51-
but Defendant was also entitled to introduce evidence that some

of those bills were written off by the hospital. As a result, we

hold that the trial court erred in denying Defendant’s motion to

introduce evidence of the write-offs and, therefore, abused its

discretion in denying her Rule 60(b) motion for a new trial as

it relates to the issue of damages.21 See generally Sink v.

Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975) (“[A]

motion for relief under Rule 60(b) is addressed to the sound

discretion of the trial court[,] and appellate review is limited

to determining whether the court abused its discretion.”).

     III. Instruction on Permanent Injury

     Though      we    have    already      determined      that   Defendant    is

entitled    to   a    new    trial   on    damages,    we   address    Defendant’s

argument that the trial court erred by instructing the jury on

“permanent injury” in the interests of judicial economy and for

the purpose of avoiding further appeal regarding the propriety

of the trial court’s jury instructions on damages. Defendant

contends that the trial court erred by instructing on permanent

injury     because     the    purpose      of    the   permanent      injury   jury



21
  For the reasons discussed in the foregoing sections, we hold
that the trial court did not otherwise abuse its discretion in
failing to grant Plaintiffs’ motions for remittitur and for a
new trial.
                                   -52-
instruction “is to guide the jury in how it should determine the

value of future damages [to the injured party] at the time of

trial” and the decedent was not alive at that time. (Emphasis

added). In response, Plaintiff asserts that the instruction was

proper because it was “abundantly clear” from the evidence that

Plaintiff was only seeking damages for the decedent’s personal

injuries and his own loss of consortium, not for the decedent’s

life expectancy. We agree with Defendant.

    As a preliminary matter, we note that Plaintiff brought no

action   for   wrongful   death.     Therefore,   the   trial   court’s

permanent injury instruction was only relevant to Plaintiff’s

actions seeking personal injury damages. In that context, the

trial court instructed on permanent injury, in near word-for-

word compliance with our pattern jury instructions, as follows:

          Damages for personal injury also include
          fair   compensation  for   permanent  injury
          incurred by the plaintiff as a proximate
          result of the negligence of the defendant.
          An injury is permanent when any of its
          effects continued throughout the plaintiff’s
          life. These effects may include medical
          expenses, pain and suffering, scarring and
          disfigurement, partial loss of use of part
          of the body incurred or experienced by the
          plaintiff over her life expectancy.

          Once again, however, the plaintiff is not
          entitled to recover twice for the same
          element of damages; therefore, you should
          not   include any  amount  you’ve  already
                                    -53-
            allowed for medical expenses, pain and
            suffering, and scarring or disfigurement or
            partial loss of use of part of the body
            because of permanent injury.

            Life expectancy is the period of time the
            plaintiff may reasonably have been expected
            to live.

After its definition of life expectancy, the trial court moved

on to a discussion of negligence. The trial court omitted the

following     additional        language    from     our    pattern      jury

instructions:

            [The   life   expectancy    tables   are in
            evidence.] [The court has taken judicial
            notice of the life expectancy tables.] They
            show that for someone of the plaintiff’s
            present age, (state present age), his life
            expectancy is (state expectancy) years.

            In   determining    the   plaintiff’s    life
            expectancy, you will consider not only these
            tables, but also all other evidence as to
            his health, his constitution and his habits.

N.C.P.I. — Civil 810.14 (June 2012) (emphasis in original).

    Beyond the alternative sentences set off in brackets, our

pattern jury instructions do not indicate that the omitted text

is optional. Though the charge conference does not disclose the

court’s rationale for omitting this text, the likely reason is

that the decedent was not alive at the time of trial. It is

entirely    nonsensical    to     admit    life    expectancy   tables   and

thereafter instruct the jury on the decedent’s life expectancy
                                          -54-
when she is no longer living and no claim for wrongful death is

being brought. The omitted language reveals, therefore, that the

permanent injury jury instruction, in the context of Plaintiff’s

actions for personal injury damages, is not intended to cover

past damages. Past damages can be addressed, as they were in

this   case,     by    instructions       on   other    forms   of   damages.       The

purpose    of    the   permanent     injury      instruction,     however,     is    to

compensate the plaintiff for additional future harm that she is

expected to experience because of a permanent injury that she

suffered as a proximate result of the defendant’s conduct. See

generally David A. Logan & Wayne A. Logan, North Carolina Torts

182 (1996) (“Plaintiffs are entitled to recover for the future

damages associated with permanent injuries.”) (emphasis added);

William S. Haynes, North Carolina Tort Law 907–08 (1989) (“The

term ‘permanent injuries,’ may be defined as those injuries that

are reasonably certain to be followed by permanent impairment to

earn money, or producing permanent and irremediable pain. . . .

Damages for permanent disability are, therefore, addressed in

the elements of damage referred to as loss of future earning

capacity    or    future     pain   and    suffering,     as    opposed   to   being

recoverable      in    and   of   themselves.      It   logically    follows    that

where permanent injuries exist the proper element of damages
                                     -55-
into which such injuries fall are a permanent impairment or

diminution of the plaintiff’s earning ability or power.”). In

light of the fact that the decedent was not alive at the time of

the trial and Plaintiff did not bring suit for wrongful death,

we   conclude   that   the   trial   court’s   instruction   on   permanent

injury was erroneous.

                                Conclusion

      For the foregoing reasons, we find no error in the trial of

this case on the negligence issues. We remand for a new trial on

damages.

      NO ERROR in part; NEW TRIAL on damages.

      Judges BRYANT and DILLON concur.
