{ "id": 11916849, "name": "ALVIN LEE LUMLEY and DOLLY LEE LUMLEY v. NANCY C. CAPOFERI and DURHAM CARDIOVASCULAR HEALTH CENTER, P.A.", "name_abbreviation": "Lumley v. Capoferi", "decision_date": "1995-11-07", "docket_number": "No. COA94-1171", "first_page": "578", "last_page": "585", "citations": [ { "type": "official", "cite": "120 N.C. App. 578" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "41 ALR3d 1154", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "41 ALR3d 845", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "38 ALR3d 1281", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "125 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "257 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565769 ], "year": 1962, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0103-01" ] }, { "cite": "311 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "310 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396078 ], "year": 1984, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0184-01" ] }, { "cite": "146 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "266 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559997 ], "year": 1966, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0206-01" ] } ], "analysis": { "cardinality": 660, "char_count": 15284, "ocr_confidence": 0.743, "pagerank": { "raw": 9.093227720670618e-08, "percentile": 0.5057694483346327 }, "sha256": "634f5fcb68a3d83549d4d3dc22ea857163e27185d07224add38762c6eae09b4b", "simhash": "1:162fb122fb4d9de4", "word_count": 2469 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge GREENE concur." ], "parties": [ "ALVIN LEE LUMLEY and DOLLY LEE LUMLEY v. NANCY C. CAPOFERI and DURHAM CARDIOVASCULAR HEALTH CENTER, P.A." ], "opinions": [ { "text": "SMITH, Judge.\nThis is a negligence action based upon alleged medical malpractice brought by plaintiffs Alvin Lee Lumley and Dolly Lee Lumley against Nancy C. Capoferi, Durham Cardiovascular Health Center, P.A., Khye Weng Ng, a/k/a Dr. Weng and Durham Clinic, PA. On 12 August 1993 plaintiffs took a voluntary dismissal with prejudice of their claims against defendants Dr. Weng and the Durham Clinic. The trial against the remaining defendants commenced on 14 March 1994. On 6 April 1994 the jury returned a verdict in defendants\u2019 favor.\nOn 5 January 1990, Alvin Lee Lumley went to the Durham County General Hospital Emergency Room complaining of headache, nausea and dizziness. Dr. Capoferi, a cardiologist on call for her employer, Durham Cardiovascular Health Center, P.A., attended Mr. Lumley. After several tests, including a CT scan, Dr. Capoferi consulted with Dr. Weng and then discharged Mr. Lumley with instructions to return for a follow-up visit. He was also prescribed high blood pressure medication. During Mr. Lumley\u2019s follow-up visits, Dr. Weng established that Mr. Lumley\u2019s neurological examination was normal and concluded that his symptoms were likely caused by an acute inner ear infection!\nOn 5 October 1991, Mr. Lumley again went to the Durham County General Emergency Room where he was diagnosed as suffering a massive stroke. It was plaintiffs\u2019 contention at trial that defendants negligently failed to diagnose Mr. Lumley\u2019s 5 January 1990 symptoms as a stroke and because of that misdiagnosis, failed to prescribe aspirin therapy as a means of reducing the risk of a second stroke.\nPrior to the trial of this matter, plaintiffs moved in limine to exclude evidence of Dr. Weng\u2019s prior involvement in the case. The trial judge granted the motion as to evidence of prior settlement, but reserved ruling on references to Dr. Weng\u2019s prior involvement.\nThe charge conference was held on 29 March 1994 and continued through the next morning. On the first day of the conference, defense counsel handed up a proposed special proximate cause instruction. Discussion regarding the instruction occurred the next day. The instruction was included in the jury charge and was heard by the jury on three separate occasions before plaintiffs\u2019 counsel objected to it. When plaintiffs objected to the instruction, they requested a clarifying instruction on the issue of proximate cause be given to the jury. Such motion was denied by the trial court.\nThe jury deliberated for approximately five days before sending a note to the judge indicating they were deadlocked eleven to one and suggesting they could not reach a verdict because deliberation had become an emotional problem for one juror. Plaintiffs moved for mistrial. After a brief recess, the trial judge suggested giving an \u201cAllen Charge\u201d to the jury. The charge reminded the jury that their verdict must be unanimous and that if they were unable to reach a unanimous verdict a new trial would be required at heavy expense to the court system in terms of time and money. Neither plaintiffs nor defendants objected to such charge. It was then given to the jury, who returned with a verdict in defendants\u2019 favor. From judgment entered in accordance with that verdict plaintiffs appeal.\nIn their first assignment of error, plaintiffs contend that the trial court abused its discretion by instructing the jury with a special instruction on proximate cause which they allege was confusing, ambiguous and contrary to the law. The instruction of which plaintiffs complain was as follows:\nA person seeking damages as a result of negligence has the burden of persuading you by the greater weight of the evidence not only of the negligence of the defendant, Dr. Capoferi, but also that such negligence was a proximate cause of the claimed injury.\nProof of proximate cause requires more than a showing that a different treatment would have decreased the risk of harm to Mr. Lumley. (Emphasis added.)\nInitially, we find that plaintiffs\u2019 first assignment of error was not preserved and is not properly before this Court. Pursu\u00e1nt to Rule 10(b)(2) of the Rules of Appellate Procedure, in order to properly preserve questions for appellate review regarding juiy instructions, a party must object to the instruction before the jury retires to consider its verdict. N.C.R. App. P. 10(b)(2). In this case, plaintiffs had several opportunities to object to the proposed special instruction before the jury retired, but failed to do so.\nThe trial judge addressed the requested special instruction both immediately after it was handed up by defense counsel and the next morning when the charge conference resumed. While dialogue regarding the instruction was brief, it is clear from the record that the instruction dealt with additional proximate cause language. Defense counsel suggested an appropriate place to insert the instruction during the discussion. At that time the court asked plaintiffs\u2019 counsel if he had any objections, to which he replied negatively. Following his charge to the jury, the judge asked both sides if there was anything further, pursuant to Rule 21 of the General Rules of Practice for Superior and District Courts, which like Rule 10(b)(2) of the Rules of Appellate Procedure, provides that objections to jury instructions should be made prior to jury deliberation. Again, plaintiffs\u2019 counsel answered negatively. Since plaintiffs failed to timely object to that portion of the proximate cause instruction which they contend is erroneous, that assignment of error is overruled.\nIn their second assignment of error, plaintiffs maintain the trial court erred in denying their request for a clarifying instruction on the issue of proximate cause. We again note that plaintiffs in this case failed to timely object to the special proximate cause instruction of which they now complain. They objected only after the jury had retired and asked to have the law relating to proximate cause read to them on two separate occasions. However, according to the General Rules of Practice, the trial judge may, at his discretion\nrecall the jury after they have retired and give them additional instructions in order: (i) to correct or withdraw an erroneous instruction; or (ii) to inform the jury on a point of law which should have been covered in the original instructions.\nGeneral R. Of Practice for Sup. & Dist. Cts., Rule 21 (1970). In this case, the judge denied plaintiffs\u2019 request to give a clarifying instruction pursuant to Rule 21. The trial judge did not abuse his discretion, thus, we find no error. In any event, any ambiguity in the special proximate cause instruction was harmless when considered in conjunction with the remainder of the proximate cause instruction and instructions on plaintiffs\u2019 burden of proof. The judge instructed the jury that\n[p]roximate cause is a real cause, a cause without which the claimed injury would not have occurred, and one which under the same or similar circumstances a reasonably careful and prudent person could foresee would probably produce such injury ....\nThis instruction is a clear definition of proximate cause as defined by North Carolina case law. Nance v. Parks, 266 N.C. 206, 209, 146 S.E.2d 24, 27 (1966). Furthermore, the judge repeatedly emphasized that plaintiffs\u2019 burden was to prove only \u201cby the greater weight of the evidence\u201d that defendants\u2019 conduct was one of the proximate causes of Mr. Lumley\u2019s second stroke. Considered in conjunction, these two instructions clearly described the applicable law regarding proximate cause and the burden of proof in a medical malpractice action. Wall v. Stout, 310 N.C. 184, 202, 311 S.E.2d 571, 582 (1984). This assignment of error is overruled.\nIn their third assignment of error, plaintiffs appeal the trial court\u2019s denial of their motion for mistrial. They contend that, after receiving a note from the jury on the fifth day of deliberation, the trial judge should have granted a mistrial. In the note, the jury stated they were deadlocked eleven to one, that it was an emotional problem for one juror to continue, and that they did not feel they could reach a verdict.\nThe granting or denial of a motion for a new trial... is generally regarded as resting in the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a manifest abuse of such discretion, or as sometimes stated, unless it is clearly erroneous.\nStone v. Griffin Baking Co., 257 N.C. 103, 105, 125 S.E.2d 363, 365 (1962). In this case, the jury began their deliberation on the afternoon of 30 March 1994. They continued deliberating the next day, had a three-day weekend, and resumed deliberation on 4 April 1994. On that day, the jury sent a note to the judge requesting re-instruction on proximate cause, stating that they were divided eight to four. On 5 April 1994, the court again received a note from the jury indicating that they were divided ten to two and requested a ten minute break. On 6 April 1994, the jury sent a final note indicating they were deadlocked eleven to one. Plaintiffs then moved for a mistrial. The court, after brief discussion, proposed to give to the jury the \u201cAllen Charge.\u201d Out of the jury\u2019s presence, the judge read the proposed charge to respective counsel. Plaintiffs counsel did not object to the instruction.\nIt is evident the jury was making progress during its five-day deliberations. Originally, the jury was divided eight to four. By the last day, they were split eleven to one. Instead of declaring a mistrial, the judge, in his discretion, proposed the \u201cAllen Charge\u201d to which neither plaintiffs nor defendants objected. This was not a manifest abuse of discretion. This assignment of error is overruled.\nIn their final assignment of error, plaintiffs contend the court erred in permitting defense counsel to make repeated references to a previously dismissed party\u2019s prior involvement in the case, on the grounds that such references were irrelevant and highly prejudicial. Prior to trial, plaintiffs moved in limine, to prohibit any mention of Dr. Weng\u2019s prior involvement in this case as a defendant. The court reserved ruling on the motion.\nPlaintiffs properly preserved questions for appellate review in two instances when the defense mentioned Dr. Weng. In the first instance, counsel for the defense asked one of plaintiffs\u2019 expert witnesses whether he had testified against Dr. Weng, as well as other doctors, on previous occasions. The trial judge overruled plaintiffs\u2019 objection to this mention of Dr. Weng. Defendants\u2019 counsel was attempting to show possible bias on the part of plaintiffs\u2019 expert; no mention of settlement was made. The question was not prejudicial to plaintiffs. We find no error in the judge\u2019s ruling.\nIn the second instance, defense counsel asked another of plaintiffs\u2019 expert witnesses about an opinion the expert had previously expressed regarding Dr. Weng\u2019s standard of care. Again, this testimony was relevant to defendants\u2019 case and was not unduly prejudicial to plaintiffs. Under Rule 403 of the North Carolina Rules of Civil Procedure, this was admissible as relevant evidence. From such evidence, the jury could infer that Dr. Capoferi\u2019s conduct was not a proximate cause of Mr. Lumley\u2019s injury. The trial judge did not commit error. This assignment of error is overruled.\nIn sum, we find the special proximate cause instruction included in the jury charge was in accordance with North Carolina case law. The trial judge had no obligation to give a clarifying instruction with regard to proximate cause. References to a former defendant\u2019s role in this action made by defendants were not unduly prejudicial to plaintiffs and were relevant to defendants\u2019 case; therefore, objection to those references was properly overruled. Finally, the trial judge did not abuse his discretion in denying plaintiffs\u2019 motion for a mistrial when it is clear the jury was making progress during its deliberations. Neither side objected to the proposed \u201cAllen Charge\u201d which was given to the jury. Based upon the foregoing, we find\nNo error.\nChief Judge ARNOLD and Judge GREENE concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Law Office of Martin A. Rosenberg, by Martin A. Rosenberg, for plaintiff appellants.", "Patterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Donna R. Rutala, for Nancy C. Capoferi, defendant appellee.", "Petree Stockton, L.L.P., by James P. Cain and Robert H. Lesesne, for Durham Cardiovascular Health Center, defendant appellee." ], "corrections": "", "head_matter": "ALVIN LEE LUMLEY and DOLLY LEE LUMLEY v. NANCY C. CAPOFERI and DURHAM CARDIOVASCULAR HEALTH CENTER, P.A.\nNo. COA94-1171\n(Filed 7 November 1995)\n1. Appeal and Error \u00a7 147 (NCI4th)\u2014 proximate cause instruction \u2014 failure to make timely objection\nPlaintiffs\u2019 assignment of error to the trial court\u2019s special instruction on proximate cause is overruled where plaintiffs had several opportunities but failed to make a timely objection to the charge.\nAm Jur 2d, Appellate Review \u00a7 745; Trial \u00a7\u00a7 1080-1084.\n2. Negligence \u00a7 174 (NCI4th)\u2014 clarifying instruction on proximate cause refused \u2014 no error\nThe trial court did not abuse its discretion in denying plaintiffs\u2019 request for a clarifying instruction on the issue of proximate cause, since plaintiffs failed to make a timely objection to the special proximate cause instruction; they obj\u00e9cted only after the jury had retired and asked to have the law relating to proximate cause read to them on two separate occasions; and any ambiguity in the special proximate cause instruction was harmless when considered in conjunction with the remainder of the proximate cause instruction and instructions on plaintiffs\u2019 burden of proof.\nAm Jur 2d, Negligence \u00a7\u00a7 449 et seq.\n3. Trial \u00a7 372 (NCI4th)\u2014 deadlocked jury \u2014 Allen charge given \u2014 no error\nThe trial court did not err in denying plaintiffs\u2019 motion for mistrial where the jurors deliberated for five days and then sent the judge a note stating that they were deadlocked eleven to one, that it was an emotional problem for one juror to continue, and that they did not feel they could reach a verdict; the trial court proposed to give the jury the \u201cAllen charge\u201d; plaintiffs\u2019 counsel did not object to the instruction; the instruction was given; and the jury returned a verdict that day.\nAm Jur 2d, Trial \u00a7\u00a7 1592-1596.\nVerdict-urging instructions in civil case stressing desirability and importance of agreement. 38 ALR3d 1281.\nVerdict-urging instructions in civil case commenting on weight of majority view or authorizing compromise. 41 ALR3d 845.\nVerdict-urging instructions in civil case admonishing jurors to refrain from intransigence, or reflecting on integrity or intelligence of jurors. 41 ALR3d 1154.\n4. Evidence and Witnesses \u00a7 1373 (NCI4th)\u2014 references to dismissed defendant \u2014 no error\nDefense counsel\u2019s references to a former defendant\u2019s role in this medical malpractice case in questions to plaintiffs\u2019 expert witnesses were not unduly prejudicial to plaintiffs and were relevant to defendants\u2019 case so that the trial court did not err in permitting such references.\nAm Jur 2d, Evidence \u00a7\u00a7 813, 814; Trial \u00a7\u00a7 554-556, 609-611, 615-617, 627.\nAppeal by plaintiffs from judgment entered 25 April 1994 by Judge Henry W. Hight, Jr., in Durham County Superior Court. Heard in the Court of Appeals 2 October 1995.\nLaw Office of Martin A. Rosenberg, by Martin A. Rosenberg, for plaintiff appellants.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Donna R. Rutala, for Nancy C. Capoferi, defendant appellee.\nPetree Stockton, L.L.P., by James P. Cain and Robert H. Lesesne, for Durham Cardiovascular Health Center, defendant appellee." }, "file_name": "0578-01", "first_page_order": 612, "last_page_order": 619 }