{
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  "name": "CAROLYN B. McCURRY, Plaintiff v. ANITA SHIVE PAINTER and MARK T. PAINTER, Defendants",
  "name_abbreviation": "McCurry v. Painter",
  "decision_date": "2001-10-16",
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    "judges": [
      "Judges WYNN and CAMPBELL concur."
    ],
    "parties": [
      "CAROLYN B. McCURRY, Plaintiff v. ANITA SHIVE PAINTER and MARK T. PAINTER, Defendants"
    ],
    "opinions": [
      {
        "text": "BIGGS, Judge.\nOn 17 December 1994 a car driven by Anita Shive Painter (defendant) and owned by her husband Mark T. Painter (collectively, defendants) struck a car operated by Carolyn McCurry (plaintiff). This appeal arises out of a civil negligence action brought as a result of that collision. The plaintiff filed suit against defendants on 15 March 1999, alleging that defendant\u2019s negligence had caused the accident, and that the accident was a proximate cause of plaintiff\u2019s injuries. Prior to trial, defendants stipulated to defendant\u2019s negligence as the cause of the accident. However, defendants denied that the accident had caused any injury or damage to plaintiff. Thus, there were two issues to be resolved: whether the accident caused plaintiff\u2019s injuries and, if so, what damages were owed to plaintiff.\nThe case came to trial on 13 December 1999. At trial, plaintiff testified concerning the accident, her injuries, and the medical treatment she sought following the collision. Plaintiff\u2019s testimony was that the accident had resulted in painful and debilitating injuries to her back, neck, and shoulders, as well as migraine headaches. Several lay witnesses also testified about the accident and about its effect on plaintiff. Dr. Wheeler, a physician who had treated plaintiff, testified about plaintiff\u2019s injuries, the tests and treatments that plaintiff had undergone, and about the causal relationship between plaintiff\u2019s complaints and the collision. Defendants did not put on evidence. The jury returned a verdict finding that defendant\u2019s negligence had proximately caused plaintiff\u2019s injuries, and awarding damages of $50,000. From this verdict and judgment, defendants appeal.\nWe note at the outset that defendants have not complied with the North Carolina Rules of Appellate Procedure. Specifically, N.C.R. App. P. 10(c)(1) requires that assignments of error \u201cshall state plainly, concisely and without argumentation the legal basis upon which error is assigned.\u201d Rule 10(c)(1). Defendants failed to state a legal basis for any of their assignments of error. Moreover, defendants did not comply with N.C.R. App. P. 28(b)(5), requiring an appellant to include with each argument that is briefed \u201ca reference to the assignments of error pertinent to the question[.J\u201d Rule 28(b)(5). Defendants\u2019 violation of these rules has made it difficult for this Court to address the merits of their arguments. Nonetheless, in the interest of justice and pursuant to N.C.R. App. P. 2, where it is possible to connect an argument to a specific assignment of error, we will consider the substance of defendants\u2019 contentions. We note also that defendants have not presented arguments or case citations in support of assignments of error seven, eight, or nine, which address the trial judge\u2019s failure to grant defendant\u2019s motions for directed verdict and for a new trial; nor are these assignments of error cited in defendants\u2019 list of questions presented, or at the beginning of any of defendants\u2019 arguments. Therefore, pursuant to Rule 28(b)(5), these assignments of error are deemed abandoned, and will not be considered.\nDefendants contend first that there was an insufficient foundation for the admission of medical bills from the following health care providers: Presbyterian Hospital, Mecklenburg Radiology Associates, Dr. James Sanders, Rehability Center, and Mecklenburg Emergency Medicine. They contend that plaintiff (a) failed to introduce evidence that the medical procedures performed at these sites were reasonably necessary to treat her injuries, (b) failed to lay a foundation that the medical charges were reasonable in amount, and (c) failed to introduce expert testimony that these specific medical bills pertained to treatment of injuries proximately caused by defendants\u2019 negligence.\nMedical bills are admissible in a negligence action, provided there is evidence of a causal relationship between the negligent act and the injury that is the subject of the medical bills. Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989). Where there is no evidence that a defendant\u2019s negligence caused the illness or injury for which plaintiff seeks compensation, our courts have excluded the medical charges for treatment of that injury. See, e.g., Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965) (\u201cnot a scintilla of medical evidence\u201d that plaintiff\u2019s injury resulted from accident six months earlier); McNabb v. Town of Bryson City, 82 N.C. App. 385, 346 S.E.2d 285 (1986) (plaintiff\u2019s evidence fails to establish causal relationship between motorcycle accident and later suicide attempt). However, if lay and expert evidence demonstrates a causal relationship between the negligent act and plaintiff\u2019s injuries, the medical charges for these injuries are admissible. Smith v. Pass, 95 N.C. App. at 253, 382 S.E.2d at 788. In Smith v. Pass, the plaintiff testified concerning the back pain she experienced following a collision. She also presented the testimony of a physician who had treated her for back injuries, starting around a month after the accident. The physician took a medical history, examined the plaintiff, and ordered a bone scan and x-rays. This Court upheld the admission of the medical bills, stating that \u201c[m]edical bills are admissible where lay and medical testimony of causation is provided.\u201d Id. (citation omitted). The Court found that the plaintiffs testimony concerning pain she experienced at the time of the accident, coupled with the physician\u2019s testimony, sufficiently linked the collision and the resultant injuries to permit introduction of the plaintiffs medical bills.\nThe issue of the admissibility of medical bills generally arises when a defendant challenges the causal relationship between the negligent act and a specific injury or medical condition. See, e.g., Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965) (Court finds insufficient evidence that plaintiffs ruptured disc caused by accident); Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (defendant challenges causal connection between accident and fracture of plaintiffs thoracic vertebrae; this Court finds evidence sufficient to allow admission of medical bills); Lee v. Regan, 47 N.C. App. 544, 267 S.E.2d 909, disc. review denied, 301 N.C. 92, 273 S.E.2d 299 (1980) (Court considers connection between accident and aggravation of plaintiffs pre-existing syringomyelia to determine whether certain medical bills were admissible). However, in the instant case defendants have not raised the issue of a causal relationship between the accident and any specific injury to plaintiff. Rather, defendants rely on a general contention that insufficient evidence connected plaintiffs treatment by certain health care providers to \u201cher injuries.\u201d Therefore, the proper inquiry, and the one this Court will consider, is whether plaintiff\u2019s evidence sufficiently established a causal relationship between the accident and her injuries generally, so as to support the admission of medical bills for treatment of these injuries.\nPlaintiff testified at trial that immediately after the collision she experienced extreme pain in her neck, head, and shoulder. Her left arm was numb, and her back was in severe pain. The following morning the pain was even worse. Plaintiff went to Presbyterian Hospital, where she was examined by Mecklenburg Emergency Medicine physicians, and received X-rays, pain medication, and a neck-support collar. The hospital staff recommended follow-up with an orthopedic doctor; therefore, plaintiff sought treatment from Dr. Sanders, a local orthopedic physician. Sanders saw plaintiff a few times, and prescribed pain medication and physical therapy. Several weeks later, plaintiff was still experiencing pain and numbness, as well as migraine headaches. She then consulted with Dr. Wheeler, a specialist in pain medicine and neurology. Dr. Wheeler took over plaintiff\u2019s treatment from that point onward, prescribing tests, medication, and therapy over the following two years.\nDr. Wheeler testified that he first met with the plaintiff in early March, 1995, approximately three months after the accident. At that time, he took plaintiffs medical history and performed a complete physical examination. He also reviewed the X-rays that plaintiff had obtained at Presbyterian Hospital on the morning following the accident. Dr. Wh\u00e9eler\u2019s medical diagnosis was that the plaintiff suffered from severe post traumatic cervical segmental and soft tissue dysfunction, and migraine headaches, as well as a nerve impingement, all of which could have been caused by a collision like the one at issue. Dr. Wheeler ordered a cervical MRI and a bone scan for diagnostic purposes, prescribed pain medication, and directed her to continue the physical therapy prescribed by Dr. Sanders. He treated her for these injuries for the following two years. Dr. Wheeler also performed an impairment rating examination which showed ten percent impairment overall. On cross-examination, defendants informed Dr. Wheeler that the emergency room physicians, and Dr. Sanders, had diagnosed plaintiff with a strained cervical spine and a strained dorsal lumbar spine. Wheeler explained that these physicians were using a different, less specific, vocabulary for the same kind of injuries that he had diagnosed. He noted that the terms \u201cstrain\u201d and \u201csprain\u201d were \u201cthe usual vernacular of an emergency room physician;\u201d that, unlike the emergency room physicians and Dr. Sanders, he specialized in treating problems with the spine; and that physicians in his field were working towards adopting a \u201cstandard nomenclature\u201d which would exclude the terms strain and sprain from diagnoses of the neck and back. Wheeler also testified to the purposes for which he had prescribed tests such as a bone scan and MRI.\nIn sum, plaintiff testified that immediately following the collision she began to experience severe pain and suffering in her neck, back, and shoulder area. Dr. Wheeler\u2019s testimony established a causal relationship between the accident and the injuries. His examination of X-rays taken the morning after the accident, and his concurring with Dr. Sander\u2019s prescription for physical therapy provide a sufficient basis to submit those bills; other challenged medical bills were for treatment or tests prescribed by Dr. Wheeler for these injuries. We find that the plaintiff\u2019s evidence demonstrated a causal relationship between the accident and her injuries.\nDefendant also argues that plaintiffs medical bills were admitted without sufficient evidence that they were reasonable in amount. However N.C.G.S. \u00a7 8-58.1 (1999) provides that:\nWhenever an issue of hospital, medical, dental, pharmaceutical, or funeral charges arises in any civil proceeding, the injured party or his guardian, administrator, or executor is competent to give evidence regarding the amount of such charges, provided that records or copies of such charges accompany such testimony. The testimony of such a person establishes a rebuttable presumption of the reasonableness of the amount of the charges.\nThis Court has held previously that the statute creates a rebuttable mandatory presumption of the reasonableness of the amount of the charges. Jacobsen v. McMillan, 124 N.C. App. 128, 476 S.E.2d 368 (1996). That is, when a plaintiff introduces medical bills in support of his testimony, the jury must find that the amount is reasonable, unless the defendant rebuts this presumption with other evidence. Id. at 134, 476 S.E.2d at 371-72. If, however, the defendant does not rebut the medical expenses presumption, it is conclusively established. Id. at 135, 476 S.E.2d at 372. In the instant case, plaintiff testified concerning her injuries and the medical treatment she received, and also introduced copies of these medical bills. Defendants presented no evidence; nor did they rebut the reasonableness of the amount of the medical charges on cross-examination. Therefore, the reasonableness of the amount of these charges is conclusively established.\nFor the reasons discussed above, we conclude that the plaintiff presented a sufficient foundation for the admission of her medical bills for treatment of injuries she contended were proximately caused by the accident. Thus, we overrule the assignment of error challenging the admission into evidence of these medical bills.\nDefendants next argue that the introduction of plaintiff\u2019s medical bills \u201cwithout medical substantiation created an inference in the jury\u2019s minds that such alleged injuries and charges were not subject to challenge. ...\u201d This argument does not cite an assignment of error. In addition, none of defendants\u2019 assignments of error include any reference to \u201can inference in the jury\u2019s mind\u201d that allegedly was generated by the admission of evidence. Therefore, this argument is not properly before this Court, and will not be addressed.\nFinally, defendants contend that the trial court erred when it allowed plaintiff to reopen her case after she had rested. Defendants moved for directed verdict at the close of plaintiff\u2019s evidence, on the grounds that plaintiff had not presented a prima facie case of proximate cause and damages. After the trial court denied defendants\u2019 motion for directed verdict, defendants moved to exclude testimony about the amount of plaintiff\u2019s medical bills, arguing that she had failed to submit them to the jury in support of her testimony, as allowed under G.S. \u00a7 8-58.1. At plaintiff\u2019s request, the trial court then allowed plaintiff to reopen her case for the limited purpose of introducing into evidence the medical bills about which she had testified. Defendants objected, stating that they had made a \u201cstrategic\u201d decision to defer their motion until after plaintiff had rested, apparently hoping that it would then be too late for plaintiff to remedy her oversight.\n\u201cThe trial court has discretionary power to permit the introduction of additional evidence after a party has rested.\u201d State v. Jackson, 306 N.C. 642, 653, 295 S.E.2d 383, 389 (1982) (citations omitted). \u201cWhether the case should be reopened and additional evidence admitted [is] discretionary with the presiding judge.\u201d Smith Builders Supply v. Dixon, 246 N.C. 136, 140, 97 S.E.2d 767, 770 (1957) (citations omitted). Because it is discretionary, the trial judge\u2019s decision to allow the introduction of additional evidence after a party has rested will not be overturned absent an abuse of that discretion. See Kerik v. Davidson County, 145 N.C. App. 222, 551 S.E.2d 186 (2001) (motion addressed to trial judge\u2019s discretion will not be disturbed unless court abused its discretion); Harborgate Prop. Owners Ass\u2019n, Inc. v. Mountain Lake Shores Dev. Corp., 145 N.C. App. 290, 551 S.E.2d 186 (2001) (remedy that \u201crests in the sound discretion of the trial court... is conclusive on appeal absent a showing of a palpable abuse of discretion\u201d). In the instant case, there is no evidence that the trial court abused its discretion. In Nelson v. Chang, 78 N.C. App. 471, 337 S.E.2d 650 (1985), disc. review denied, 317 N.C. 335, 346 S.E.2d 501 (1986), defendant was allowed to reopen his case after resting, over plaintiff\u2019s objection. This Court held as follows:\n[P]laintiff contends the court erred in allowing defendant, over objection and after denial of plaintiff\u2019s motion for directed verdict, to reopen his case and attempt to correct the omissions in damages pointed out by counsel for plaintiff. We disagree. \u201cThe purpose of the \u2018specific grounds\u2019 requirement of Rule 50(a) is to allow the adverse party to meet any defects with further proof and avoid the entry of a judgment notwithstanding the verdict at the close of the trial, on a ground that could have been met with proof had it been suggested earlier.\u201d . . . The assignment of error is overruled.\nId. at 476, 337 S.E.2d at 654 (quoting Byerly v. Byerly, 38 N.C. App. 551, 248 S.E.2d 433 (1978)). We hold that the trial court did not abuse its discretion in permitting plaintiff to introduce her medical bills, and, accordingly, overrule this assignment of error.\nFor the reasons discussed above, we affirm the judgment entered by the trial court.\nAffirmed.\nJudges WYNN and CAMPBELL concur.",
        "type": "majority",
        "author": "BIGGS, Judge."
      }
    ],
    "attorneys": [
      "The Robinson Law Firm, PLLC, by William C. Robinson, for defendant-appellants.",
      "James R. Carpenter for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "CAROLYN B. McCURRY, Plaintiff v. ANITA SHIVE PAINTER and MARK T. PAINTER, Defendants\nNo. COA00-678\n(Filed 16 October 2001)\n1. Evidence\u2014 medical bills \u2014 negligence action \u2014 sufficient causal relationship\nThere was a sufficient foundation for the admission of medical bills in an automobile negligence action where plaintiff testified that she began to experience severe pain and suffering in her neck, back, and shoulder immediately following the collision and a doctor\u2019s testimony established a causal relationship between the accident and the injuries.\n2. Evidence\u2014 medical bills \u2014 rebuttable presumption of reasonableness\nThe reasonableness of plaintiffs medical bills in an automobile accident case was conclusively established under N.C.G.S. \u00a7 8-58.1 where plaintiff testified concerning her injuries and her medical treatment and introduced copies of her medical bills, but defendants presented no evidence and did not rebut the statutory presumption that the bills were reasonable.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to cite assignment of error\nAn argument was not addressed on appeal where it did not cite an assignment of error and none of the assignments of error included any reference to the argument.\n4. Trials\u2014 reopening evidence after party rested \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in an automobile accident case by allowing plaintiff to reopen her case after she had rested where defendants moved to exclude testimony about plaintiff\u2019s medical bills on the grounds that she had failed to submit the bills to the jury in support of her testimony and the court allowed plaintiff to reopen her case for the limited purpose of introducing those bills.\nAppeal by defendants from judgment entered 17 December 1999 by Judge Forrest Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 16 May 2001.\nThe Robinson Law Firm, PLLC, by William C. Robinson, for defendant-appellants.\nJames R. Carpenter for plaintiff-appellee."
  },
  "file_name": "0547-01",
  "first_page_order": 579,
  "last_page_order": 586
}
