{ "id": 9081951, "name": "MARGARET O. LIBORIO, Administratrix of the Estate of LOWELL THOMAS LIBORIO, Plaintiff v. WILLIAM W. KING, M.D. and WILMINGTON HEALTH ASSOCIATES, P.A., Defendants", "name_abbreviation": "Liborio v. King", "decision_date": "2002-06-04", "docket_number": "No. COA01-32", "first_page": "531", "last_page": "538", "citations": [ { "type": "official", "cite": "150 N.C. App. 531" } ], "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": "451 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "trial court has authority to provide the jury with written instructions upon request" } ], "opinion_index": 0 }, { "cite": "339 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557173 ], "year": 1994, "pin_cites": [ { "parenthetical": "trial court has authority to provide the jury with written instructions upon request" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0456-01" ] }, { "cite": "213 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553684, 8553749 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/25/0325-01", "/nc-app/25/0325-02" ] }, { "cite": "88 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618023 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0517-01" ] }, { "cite": "353 Md. 335", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1704393 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "366-67" }, { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/md/353/0335-01" ] }, { "cite": "167 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "444", "parenthetical": "\"personal effects\" do not include houseboat; Court holds that houseboat \"not ejusdem generis with articles of jewelry, clothing, household furniture, china, silver or crystal\" listed before \"personal effects\" in will" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555072 ], "year": 1969, "pin_cites": [ { "page": "605", "parenthetical": "\"personal effects\" do not include houseboat; Court holds that houseboat \"not ejusdem generis with articles of jewelry, clothing, household furniture, china, silver or crystal\" listed before \"personal effects\" in will" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0600-01" ] }, { "cite": "286 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "805", "parenthetical": "criminal statute defining \"building\" as \"dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and 'any other structure' ...\" excludes \"fenced in area\" from \"any other structure\" under principle of ejusdem generis" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519440 ], "year": 1982, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0055-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "885", "parenthetical": "where statute lists state level agencies, followed by phrase \"all other departments, institutions, and agencies[,]\" ejusdem generis excludes application of statute to county level board or agency" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "106", "parenthetical": "where statute lists state level agencies, followed by phrase \"all other departments, institutions, and agencies[,]\" ejusdem generis excludes application of statute to county level board or agency" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "499 U.S. 117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318167 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "129" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/us/499/0117-01" ] }, { "cite": "244 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "519 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155846 ], "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0040-01" ] }, { "cite": "502 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "44" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464960 ], "year": 1998, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0018-01" ] }, { "cite": "192 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "2", "parenthetical": "upholding instruction on grounds that it \"sufficiently covered the meaning of the terms\" that defendant requested the trial court to define in its charge to jury" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551859 ], "year": 1972, "pin_cites": [ { "page": "430", "parenthetical": "upholding instruction on grounds that it \"sufficiently covered the meaning of the terms\" that defendant requested the trial court to define in its charge to jury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0429-01" ] } ], "analysis": { "cardinality": 789, "char_count": 17626, "ocr_confidence": 0.755, "pagerank": { "raw": 5.019038561874718e-07, "percentile": 0.9364673384432838 }, "sha256": "8668783bf22d6e3e094aecff9f36b9754211c1812df2ef4dd4dee5650137900a", "simhash": "1:8d294532264f0146", "word_count": 2782 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge McCULLOUGH concur." ], "parties": [ "MARGARET O. LIBORIO, Administratrix of the Estate of LOWELL THOMAS LIBORIO, Plaintiff v. WILLIAM W. KING, M.D. and WILMINGTON HEALTH ASSOCIATES, P.A., Defendants" ], "opinions": [ { "text": "BIGGS, Judge.\nThis case arises from a medical malpractice action filed by Margaret Liborio (plaintiff) following the death of her husband, Thomas Liborio (Liborio). Plaintiff appeals from the verdict and judgment entered following jury trial, and from the trial court\u2019s denial of her motion for a new trial. For the reasons that follow, we conclude that there was no error in the jury verdict, and affirm the trial court\u2019s denial of plaintiffs motion.\nOn 31 December 1995, Liborio went to the emergency room at Cape Fear Memorial Hospital in Wilmington, North Carolina, complaining of nausea, abdominal pain, and gastric distress. The emergency room physician, Dr. Kastner, examined him and ordered an ultrasound, before contacting Dr. Thompson, the physician on call for Liborio\u2019s family physician, Dr. Visser. When Dr. Thompson arrived, he examined Liborio and prescribed medication for pain and nausea. Dr. Kastner\u2019s and Dr. Thompson\u2019s initial assessment was that Liborio suffered from either gallstones or hepatitis. Because gallstones would require surgery, Dr. Thompson contacted Dr. Miles, the surgeon on duty. Dr. Miles examined Liborio, reviewed the test results, and concluded that Liborio\u2019s symptoms might be caused by gallstones. Dr. Miles did not want to perform gall bladder surgery until after Liborio had an endoscopic retrograde cholangiopancre-atography (ERCP), a diagnostic surgical procedure. Accordingly, Dr. Thompson called in Dr. King (defendant), who was a gastroen-terologist with experience performing ERCPs.\nDefendant came to the hospital the next morning and reviewed Liborio\u2019s medical charts and test results. Defendant agreed with the preliminary diagnosis of Dr. Kastner, Dr. Thompson, and Dr. Miles, that Liborio likely suffered from gallstones or hepatitis. The test results offering conclusive proof of hepatitis take 96 hours to process, by which time Liborio could be in critical condition if he were suffering from gallstones. Consequently, defendant agreed with the other doctors, that an ERCP was the logical next step in Liborio\u2019s treatment, and that it should be performed as soon as possible. Defendant met with plaintiff and Liborio, and discussed the ERCP procedure with them, including a description of possible risks, before obtaining Liborio\u2019s signature on an informed consent form. The ERCP was performed that day and revealed that Liborio did not have gallstones, as previously believed. Unfortunately, Liborio developed pancreatitis and other serious complications from the surgery. He did not recover, and died on 1 March 1996.\nOn 25 February 1998, plaintiff filed suit against defendant, the hospital, and several of the physicians who had treated Liborio. Before trial, plaintiff\u2019s claims were resolved with respect to all those named in the suit except the defendants in the present appeal. The case was tried before a jury on 24 April 2000. During the charge conference, plaintiff asked the trial court to instruct the jury that informed consent is invalid if obtained by misrepresentation of a material fact; the trial court denied this request. During its deliberations, the jury asked for a copy of the court\u2019s charge, and also requested a copy of \u201cthe written law.\u201d The court provided a copy of its instructions to the jury and then asked for clarification on the meaning of \u201cthe written law.\u201d The jury indicated that it would review the charge and would inform the court if they needed more information; however, the jury made no further requests for written documents. At this point, plaintiff renewed her request that the jury be instructed on the effect of misrepresentation on informed consent, or that the jury be given a copy of the relevant statute; the request was denied.\nOn 11 May 2000, the jury returned a verdict finding defendants not liable for damages. The trial court entered judgment for defendants on 23 May 2000. On 1 June 2000, plaintiff filed a motion for a new trial, pursuant to N.C.G.S. \u00a7 1A-1, Rule 59. Her motion was denied on 26 June 2000. Plaintiff appeals from the verdict and judgment at trial, and from the order denying her motion for a new trial.\nAs a preliminary matter, we note that plaintiff set out eleven assignments of error in the Record, but argues only two of these in her brief. The assignments of error not argued or supported by legal authority in defendant\u2019s brief are deemed abandoned. N.C.R. App. P. 28(b)(5) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d)\nI.\nPlaintiff argues first that the trial court erred in refusing plaintiff\u2019s request to instruct the jury that Liborio\u2019s consent to the ERCP was invalid if obtained by misrepresentation of a material fact.\nTo prevail on this issue, the plaintiff must demonstrate that (1) the requested instruction was a correct statement of law and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested and (4) such failure likely misled the jury. Faeber v. E. C. T. Corp., 16 N.C. App. 429, 430, 192 S.E.2d 1, 2 (1972) (upholding instruction on grounds that it \u201csufficiently covered the meaning of the terms\u201d that defendant requested the trial court to define in its charge to jury).\nWhen a request is made for a specific jury instruction that is correct as a matter of law and is supported by the evidence, the trial court is required to give an instruction expressing \u201cat least the substance of the requested instruction.\u201d Parker v. Barefoot, 130 N.C. App. 18, 20, 502 S.E.2d 42, 44 (1998), rev\u2019d on other grounds, 351 N.C. 40, 519 S.E.2d 315 (1999) (citations omitted). On appeal, this Court \u201cmust consider and review the challenged instructions in their entirety; it cannot dissect and examine them in fragments,\u201d in order to determine if the court\u2019s instruction provided \u201cthe substance of the instruction requested[.]\u201d Id.\nN.C.G.S. \u00a7 90-21.13 (2001), which governs informed consent to medical treatment, provides in relevant part that:\n(b) A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact.\nN.C.G.S. \u00a7 90-21.13(b) (2001). Plaintiff acknowledges that defendant did not obtain consent to the ERCP through fraud or deception; however, she contends that Liborio\u2019s consent was obtained through the negligent misrepresentation of a material fact. She argues that in the context of G.S. \u00a7 90-21.13(b) the word \u2018misrepresentation\u2019 may include innocent or negligent misrepresentation. On this basis, plaintiff argues that the trial court was required to specifically instruct the jury that consent obtained by misrepresentation, as in this case negligent misrepresentation, is invalid. The specific instruction requested reads in pertinent part:\nHowever, under North Carolina law, the otherwise valid consent of a patient to a procedure is not valid when the consent is obtained by the misrepresentation of a material fact. The plaintiff contends that the defendant was negligent in that no valid consent was obtained by the defendant, Dr. King, to the performance of the ERCP procedure because Dr. King misrepresented certain material facts to Lowell Thomas Liborio and obtained his consent through said misrepresentation. The plaintiff contends that Dr. King stated to Lowell Thomas Liborio that his gallbladder was \u201cpacked full of stones\u201d and that this was not true and that this was a misrepresentation of a material fact, (emphasis added)\nWe believe plaintiffs requested instruction is an incorrect statement of the law and that the trial court did not err in declining to give it. First, the plain language of G.S. \u00a7 90-21.13(b) provides that the presumption of validity \u201cmay be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact.\u201d This language does not support plaintiffs requested instruction that \u201cunder North Carolina law, the otherwise valid consent of a patient to a procedure is not valid when the consent is obtained by the misrepresentation of a material fact.\u201d The statute provides that informed consent may be rebutted by proof of misrepresentation; however, the requested charge suggests that misrepresentation renders a patient\u2019s consent invalid as a matter of law.\nIn addition, we reject plaintiff\u2019s argument that the word misrepresentation, as it appears in N.C.G.S. \u00a7 90-21.13(b), includes negligent misrepresentation. Defendant urges this Court to apply the rule of statutory construction ejusdem generis to discern whether the legislature intended the term \u2018misrepresentation\u2019 in G.S. \u00a7 90-21.13(b) to encompass negligent misrepresentation. We agree that such analysis is appropriate here. Where a statute is unclear in its meaning, the Court may resort to judicial construction to determine the legislative intent. In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978).\n\u201cUnder the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.\u201d Norfolk and Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129, 113 L. Ed. 2d 95, 107 (1991). Ejusdem generis has been further explained as follows:\nWhere words of general enumeration follow those of specific classification, the general words will be interpreted to fall within the same category as those previously designated. The maxim ejusdem generis applies especially to the construction of legislative enactments. It is founded upon the obvious reason that if the legislative body had intended the general words to be used in their unrestricted sense the specific words would have been omitted.\nMeyer v. Walls, 347 N.C. 97, 106, 489 S.E.2d 880, 885 (1997) (where statute lists state level agencies, followed by phrase \u201call other departments, institutions, and agencies[,]\u201d ejusdem generis excludes application of statute to county level board or agency). See also State v. Gamble, 56 N.C. App. 55, 57, 286 S.E.2d 804, 805 (1982) (criminal statute defining \u201cbuilding\u201d as \u201cdwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and \u2018any other structure\u2019 ...\u201d excludes \u201cfenced in area\u201d from \u201cany other structure\u201d under principle of ejusdem generis)-, Adler v. Trust Co., 4 N.C. App. 600, 605, 167 S.E.2d 441, 444 (1969) (\u201cpersonal effects\u201d do not include houseboat; Court holds that houseboat \u201cnot ejusdem generis with articles of jewelry, clothing, household furniture, china, silver or crystal\u201d listed before \u201cpersonal effects\u201d in will).\nStanding alone, the term \u2018misrepresentation\u2019 appears broad enough to encompass negligent misrepresentation; however, as the last in the series \u201cfraud, deception or misrepresentation,\u201d the principle of ejusdem generis indicates that only knowing and intentional behavior is intended. Having found no North Carolina case law that specifically addresses this point, we find the Maryland case cited by defendant, though not authoritative, to be persuasive. In Luskin\u2019s v. Consumer Protection, 353 Md. 335, 726 A.2d 702 (1999), the Maryland Court of Special Appeals construed a statute prohibiting \u201c[d]eception, fraud, false pretense, false premise, [and] misrepresentation,\u201d and held:\nAlthough the word \u201cmisrepresentation,\u201d unqualified, may mean either an intentional or an innocent misrepresentation, \u201cmisrepresentation\u201d as found in \u00a7 13-301(9) is included in an enumeration of proscribed commissions, each of which connotes intentional misrepresentation. Consequently, under the rule of ejusdem generis, \u201cmisrepresentation\u201d in \u00a7 13-301(9) should be given the same meaning as the accompanying terms.\n353 Md. at 366-67, 726 A.2d at 717.\nWe conclude that the legislature, in enacting G.S. \u00a7 90-21.13(b), intended the word \u2018misrepresentation\u2019 to refer only to intentional misrepresentation, and not to encompass innocent or negligent misrepresentation. Accordingly, the trial court did not err in rejecting plaintiffs requested instruction.\nMoreover, we do not agree with plaintiffs contention that this construction of the statute will bar recovery in any but the most \u201cbizarre\u201d circumstance of a physician intentionally concealing information from his patient. A doctor who obtains a patient\u2019s consent for treatment by informing the patient according to his honest diagnosis is still liable for negligence in arriving at the diagnosis, or in providing the patient with appropriate information. The instructions given by the trial court in the case sub judice addressed this possibility, and directed the jury to consider the following allegations of negligence in regards t\u00f3 informed consent: (1) that defendant failed to tell Liborio about alternatives to ERCP; (2) that defendant inappropriately minimized the dangers of the ERCP; and (3) that defendant failed to provide information to the patient sufficient to give him a general understanding of the risks and hazards inherent in an ERCP.\nWe conclude that the trial court\u2019s charge sufficiently instructed the jury on negligence as it pertains to informed consent. We note that defendant has also argued that this Court is required by the holdings of Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955), and Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571 (1975), to rule in his favor on this issue. However, we conclude that neither case is directly on point. Our decision, therefore, does not rest upon these cases.\nFor the reasons discussed above, we hold that the plaintiff has failed to show that the requested instruction was a correct statement of law; accordingly, this assignment of error is overruled.\nII.\nPlaintiff next argues that the trial court committed reversible error by denying plaintiffs request that, upon the jury\u2019s request for a copy of \u201cthe written law,\u201d they be provided with a written copy of G.S. \u00a7 90-21.13. We disagree.\nThe phrase \u201cthe written law\u201d is too general to identify which statute the jury was requesting. Consequently, the trial court asked the jury to clarify what it meant by the request. The jury answered that it would read the charge, and would inform the judge if they needed more information. We conclude that this procedure was an appropriate response to the jury\u2019s question. Plaintiff has produced no evidence to show that the jury was specifically requesting a copy of G.S. \u00a7 90-21.13, and we discern none. Moreover, even if the jury\u2019s question were construed as a request for the statute, the decision of whether to provide a written copy rests in the trial court\u2019s discretion. See State v. Moore, 339 N.C. 456, 451 S.E.2d 232 (1994) (trial court has authority to provide the jury with written instructions upon request). We perceive no abuse of discretion in the present case. This assignment of error is overruled.\nFor the reasons discussed above, we conclude that the trial court did not err in its jury instructions, nor in its response to the jury\u2019s broad request for \u201cthe written law.\u201d Accordingly, we conclude that there was no error in the verdict and judgment and affirm the trial court\u2019s denial of plaintiff\u2019s motion for a new trial.\nNo Error.\nChief Judge EAGLES and Judge McCULLOUGH concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Law Offices of Wade E. Byrd, by Wade Byrd and Sally A. Lawing for plaintiff-appellant.", "Cranfill, Sumner & Hartzog, by John D. Martin, for defendant-appellees." ], "corrections": "", "head_matter": "MARGARET O. LIBORIO, Administratrix of the Estate of LOWELL THOMAS LIBORIO, Plaintiff v. WILLIAM W. KING, M.D. and WILMINGTON HEALTH ASSOCIATES, P.A., Defendants\nNo. COA01-32\n(Filed 4 June 2002)\n1. Medical Malpractice\u2014 informed consent \u2014 negligent misrepresentation\nThe trial court did not err in a medical malpractice action that arose from a death following an endoscopic diagnostic procedure (ERCP) by refusing plaintiff\u2019s request to instruct the jury that the deceased\u2019s consent to the procedure was invalid if it was obtained by negligent misrepresentation of a material fact. N.C.G.S. \u00a7 90-21.13(b) provides that the statutory presumption of validity for informed consent may be rebutted by proof of misrepresentation, but the requested charge suggests that misrepresentation renders the consent invalid as a matter of law. Moreover, the legislature intended to refer only to intentional misrepresentation, and a doctor who obtains consent by informing the patient according to his honest diagnosis is still liable for negligence in arriving at the diagnosis or in providing the patient with appropriate information.\n2. Trial\u2014 jury request for the \u201cwritten law\u201d \u2014 particular statute not furnished\nThe trial court did not abuse its discretion in a medical malpractice action which involved informed consent by denying plaintiff\u2019s request that the jury be provided with a written copy of N.C.G.S. \u00a7 90-21.13 when it requested a copy of \u201cthe written law.\u201d The phrase \u201cthe written law\u201d was too general to identify which statute the jury was requesting; when asked for clarification, the jury answered that it would read the charge and inform the judge if they needed more information, but made no more requests.\nAppeal by plaintiff from judgment entered 23 May 2000, and from order entered 27 June 2000, by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 18 February 2002.\nLaw Offices of Wade E. Byrd, by Wade Byrd and Sally A. Lawing for plaintiff-appellant.\nCranfill, Sumner & Hartzog, by John D. Martin, for defendant-appellees." }, "file_name": "0531-01", "first_page_order": 561, "last_page_order": 568 }