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  "name": "PAUL SWINK, Individually and as ADMINISTRATOR OF THE ESTATE OF MARGARET SWINK, Plaintiff v. RICHARD A. WEINTRAUB, M.D. and THE SOUTHEASTERN HEART AND VASCULAR CENTER, P.A., Defendants",
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      "PAUL SWINK, Individually and as ADMINISTRATOR OF THE ESTATE OF MARGARET SWINK, Plaintiff v. RICHARD A. WEINTRAUB, M.D. and THE SOUTHEASTERN HEART AND VASCULAR CENTER, P.A., Defendants"
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      {
        "text": "GEER, Judge.\nThis opinion addresses two appeals arising from the same wrongful death action brought by plaintiff Paul Swink individually and as administrator of the estate of his wife, Margaret Swink. Defendants Dr. Richard A. Weintraub and the Southeastern Heart and Vascular Center, P.A. (\u201cSoutheastern\u201d) appeal from (1) the trial court\u2019s judgment based on the jury\u2019s verdict finding them negligent in the death of Mrs. Swink (COA07-1088), and (2) the trial court\u2019s order taxing costs against defendants (COA07-960). The two appeals were previously consolidated for hearing and now are consolidated for decision.\nDefendants\u2019 principal contention as to the trial is that the trial court erred in admitting opinion testimony from plaintiff\u2019s medical experts as to whether defendants exercised reasonable care and diligence and used their best judgment without requiring the experts to testify, as to those opinions, regarding the \u201csame or similar community\u201d standard of care set out in N.C. Gen. Stat. \u00a7 90-21.12 (2007). The Supreme Court has already determined in Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984), that \u00a7 90-21.12 does not apply to the duty of reasonable care and diligence and the duty of best judgment. Only the Supreme Court may revisit Wall. Since we are unpersuaded by defendants\u2019 remaining arguments as to the trial, we hold that defendants received a trial free of prejudicial error.\nWith respect to the order taxing costs, however, we hold that the trial court lacked subject matter jurisdiction to enter the order as defendants had already appealed from the underlying judgment. We must, therefore, vacate that order and remand for entry of a new order.\nFacts\nOn 9 June 2003, Mrs. Swink and her husband went to Dr. Weintraub, who was employed by Southeastern, to discuss replacement of her pacemaker that was approaching the end of its life span. During the visit, Dr. Weintraub informed the Swinks that one of the pacemaker\u2019s electrical leads was defective and also needed to be replaced.\nMrs. Swink had previously undergone surgery in 1994 for maintenance of her pacemaker. Dr. Weintraub performed the 1994 surgery, doing a procedure known as \u201clead extraction.\u201d During the surgery, Mrs. Swink suffered complications that required giving her cardiopulmonary resuscitation. As a result of the 1994 surgery, Mrs. Swink was scared about undergoing another lead extraction surgery in 2003.\nIn the 9 June 2003 consultation, Mr. Swink reminded Dr. Weintraub of the complications during the 1994 surgery and asked that the non-functioning lead be left in place if possible. Dr. Weintraub\u2019s notes of the office visit stated that his plan was to extract the lead \u201cif this can be done easily.\u201d Mr. Swink testified that, based on the office visit, he understood that there was no alternative to lead extraction, even though, in actuality, nonfunctioning leads can be left in place. Mr. Swink also testified that Dr. Weintraub did not discuss with them the risks of lead extraction. Mrs. Swink ultimately executed a form consenting to a procedure to receive a \u201cpermanent transvenous pacemaker,\u201d but did not sign any form expressly consenting to a lead extraction procedure.\nThe pacemaker replacement surgery was originally scheduled for 16 June 2003. On 11 June 2003, however, Mrs. Swink arrived at the hospital with total lead electrode failure and was taken to the cath lab for the permanent transvenous pacemaker procedure. While attempting to perform the lead extraction, Dr. Weintraub encountered considerable scar tissue surrounding the non-functioning ventricular lead. At approximately the same time that Dr. Weintraub discovered the scar tissue, Mrs. Swink\u2019s heart stopped beating, and she ceased breathing. Dr. Weintraub called a \u201ccode.\u201d\nMrs. Swink was suffering from pericardial bleeding, which is treated by inserting a syringe into the chest to withdraw the accumulating blood, a procedure known as \u201cpericardioscentesis.\u201d An expert witness testified that pericardioscentesis needs to be performed quickly because brain death begins to occur in as little as four to six minutes. According to the operating room\u2019s event log, Dr. Weintraub did not perform the pericardioscentesis until 17:24 \u2014 approximately 19 minutes after the code was announced at 17:05. Mr. Swink presented evidence at trial that, prior to the code, a pericardioscentesis kit was not in the room.\nSeveral calls were made to obtain a surgeon, but a surgeon (Dr. Gerhardt) did not arrive until 18:03, almost an hour after the code. Mr. Swink presented evidence that Dr. Gerhardt and his partners were, however, \u201cright down the hall.\u201d Although the surgeon was able to stabilize Mrs. Swink, she was already brain dead. She died on 13 June 2003 after her family decided to remove her from life support.\nOn 8 June 2005, Mr. Swink filed a wrongful death action against Dr. Weintraub, Southeastern, Moses H. Cone Memorial Hospital, Moses H. Cone Memorial Hospital Operating Corporation, and Moses Cone Medical Services, Inc., asserting claims of medical malpractice. Following a trial on the claims against Dr. Weintraub and Southeastern, the jury returned a verdict in Mr. Swink\u2019s favor, finding defendants Dr. Weintraub and Southeastern negligent and awarding damages in the amount of $1,047,732.20. The trial court entered judgment in accordance with the verdict on 1 March 2007. Defendants filed notice of appeal from that judgment on 20 March 2007.\nOn 22 March 2007, plaintiff moved to tax certain costs against defendants, requesting a total of $119,075.33. In an order entered 1 May 2007, the trial court granted plaintiff\u2019s motion, taxing defendants $72,709.97 in costs. Defendants appealed from that order on 29 May 2007.\nI\nDefendants first argue that the trial court erred in admitting certain opinion testimony from Mr. Swink\u2019s expert witnesses without requiring them to testify, as to those opinions, regarding the \u201csame or similar community\u201d standard of care. We first observe that defendants have not, in their brief, specifically cited or quoted the testimony that they claim was erroneously admitted. Moreover, defendants have not attached the pertinent testimony in an appendix to the brief. The only place where defendants have identified which, testimony is at issue is in the assignments of error contained in the record on appeal. This approach is not adequate under the Rules of Appellate Procedure and renders more difficult the Court\u2019s review of the issue raised by defendants.\nRule 28(d)(1) specifies that \u201cthe appellant must reproduce as appendixes to its brief . . . those portions of the transcript of proceedings which must be reproduced verbatim in order to understand any question presented in the brief . . . .\u201d (Emphasis added.) On the other hand, an appellant \u201cis not required to reproduce an appendix to its brief with respect to an assignment of error . . . whenever the portion of the transcript necessary to understand a question presented in the brief is reproduced verbatim in the body of the brief. . . .\u201d N.C.R. App. P. 28(d)(2).\nThis Court cannot review defendants\u2019 argument regarding the admissibility of certain portions of the expert testimony without specifically reviewing those portions of the transcript. Defendants were, therefore, required to either quote the testimony in the body of their brief or attach the pertinent testimony in an appendix to the brief. Not only have defendants neglected to comply with Rule 28(d), they have also failed to address in this section of their brief any specifically identified testimony at all.\nIn any event, defendants do not dispute that Mr. Swink\u2019s expert witnesses were competent to testify as to the standards of care that existed in Greensboro, North Carolina, in June 2003 with respect to lead extraction procedures. Defendants instead complain that questions regarding whether Dr. Weintraub \u201cused his best judgment or exercised reasonable care and diligence . . . were asked outside the context of a community standard and were opinions based on speculation as to the state of mind of Doctor Weintraub.\u201d\nDefendants\u2019 argument hinges on their contention that Hunt v. Bradshaw, 242 N.C. 517, 522, 88 S.E.2d 762, 765 (1955), was superseded or altered by N.C. Gen. Stat. \u00a7 90-21.12. In Hunt, the Supreme Court set out the scope of a doctor\u2019s duty to his or her patient, stating:\nA physician or surgeon who undertakes to render professional services must meet these requirements:' (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his. knowledge and skill to the patient\u2019s case; and (3) he must use his best judgment in the treatment and care of his patient. If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.\n242 N.C. at 521-22, 88 S.E.2d at 765 (internal citations omitted).\nIn 1976, the General Assembly enacted N.C. Gen. Stat. \u00a7 90-21.12, which provides:\nIn any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care, profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.\nDefendants assert that \u201cthis statute effectively supplanted the common law because it stated that all actions alleging medical malpractice in this state are governed by the statutory community standard of care codified in G.S. 90-21.12.\u201d This contention is, however, contrary to controlling Supreme Court authority.\nIn Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984), the Supreme Court addressed a similar argument that N.C. Gen. Stat. \u00a7 90-21.12 supplanted the common law standards of care set out in Hunt. Like defendants in this case, the plaintiffs in Wall argued that \u201cthe common law standards of care enunciated in [the Supreme Court\u2019s] prior cases are no longer relevant in a medical malpractice action\u201d and \u201cthat all other standards and requirements defining a physician\u2019s duty to a patient... are subsumed\u201d within \u00a7 90-21.12. Wall, 310 N.C. at 191, 311 S.E.2d at 576. The Supreme Court, however, held \u201cthat the adoption of the statute was not intended to accomplish the radical result contended by plaintiff[s].\u201d Id. at 192, 311 S.E.2d at 576. The Court explained that it \u201csimply [could not] conceive that by passing this legislation, the General Assembly intended to eliminate the previously existing common law obligations of a physician to his patient.\u201d Id. The Court, therefore, \u201cconclude[d] that the intended purpose of G.S. 90-21.12 was merely to conform the statute more closely to the existing case law applying a \u2018same or similar community\u2019 standard of care.\u201d Wall, 310 N.C. at 191, 311 S.E.2d at 576.\nDescribing this purpose as a \u201climited\u201d one, the Court then stressed that it \u201cfurther disagree[d] with plaintiffs that it would be sufficient to instruct the jury that the sole issue relating to a physician\u2019s alleged negligence is whether he complied with this statutory standard of care. Our case law makes clear that this is not the extent of the physician\u2019s duty to his patient.\u201d Id. The Court then quoted the three duties set out in Hunt, id. at 192-93, 311 S.E.2d at 576-77, specifically noting that the first duty \u2014 that a doctor \u201c \u2018must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess,\u2019 \u201d id. at 192, 311 S.E.2d at 577 (quoting Hunt, 242 N.C. at 521, 88 S.E.2d at 765) \u2014 had been \u201cfurther refined by language in our later cases defining the \u2018same or similar communities\u2019 standard and by G.S. 90-21.12.\u201d Wall, 310 N.C. at 192 n.1, 311 S.E.2d at 577 n.1. The Court concluded by holding: \u201cThe applicable standard, then, is completely unitary in nature, combining in one test the exercise of \u2018best judgment,\u2019 \u2018reasonable care and diligence\u2019 and compliance with the \u2018standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities.\u2019 \u201d Id. at 193, 311 S.E.2d at 577 (emphasis original). The Court summarized its holding as \u201c[h]aving determined that G.S. 90-21.12 did not abrogate the common law standards of care required of a physician and that an instruction combining elements of both the statute and phraseology from our earlier cases is necessary to fully explain the doctor\u2019s duty. . . .\" Wall, 310 N.C. at 193, 311 S.E.2d at 577.\nThe Court then proceeded to analyze the jury instructions given in that case. The Court specifically approved the trial court\u2019s decision to instruct the jury first that the defendant physician was required to render health care in \u201c \u2018accordance with the standards of practice exercised by like specialists with similar training and experience who are situated in the same or similar communities at the time the health care service was rendered\u2019 \u201d followed by the additional instruction that it was \u201cthe duty of the defendant, [physician], to exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the plaintiff\u2019s condition and to exert his best judgment in the treatment and care of the plaintiff.\u201d Id. at 194, 311 S.E.2d at 577-78 (holding that \u201c[t]his was a complete and accurate summation of the defendant physician\u2019s responsibilities to plaintiff\u2019).\nIf, at that point in the opinion, any question remained whether N.C. Gen. Stat. \u00a7 90-21.12 related to the duty to exercise reasonable care and diligence and the duty to use best judgment, the Court definitively answered that question in addressing the portion of the jury instructions discussing the community standard of care:\nWe wish to emphasize again, however, that compliance with the \u201csame or similar community\u201d standard of care does not necessarily exonerate defendant from liability for medical negligence. The doctor must also use his \u201cbest judgment\u201d and must exercise \u201creasonable care and diligence\u201d in the treatment of his patient. Hunt v. Bradshaw, 242 N.C. 517, 521-22, 88 S.E. 2d [sic] 762, 765 (1955).\nIf, however, the plaintiff proves a violation of the statutory standard of care which proximately caused her injury, this is sufficient to establish liability on the part of the attending health care professional for medical negligence. It would similarly be sufficient to establish liability if the plaintiff were able to show that the defendant did not exercise his \u201cbest judgment\u201d in the treatment of the patient or if the defendant failed to use \u201creasonable care and diligence\u201d in his efforts to render medical assistance. These three elements here described relate to the doctor\u2019s duty to his patient, which is not necessarily synonymous with the plaintiff\u2019s burden of proof in a medical malpractice case. \u201cIf [the defendant] fails in any one particular [to fulfill his duty to the patient], and such failure is the proximate cause of injury or damage, he is liable.\u201d Id. at 522, 88 S.E. 2d [sic] at 765. (Emphasis added.)\nId. at 199 n.2, 311 S.E.2d at 580 n.2.\nIn short, our Supreme Court in Wall specifically rejected the argument made by defendants in this case. The three duties set out in Hunt survived the enactment of N.C. Gen. Stat. \u00a7 90-21.12, with only the first duty implicating that statute. Neither the duty to exercise reasonable care and diligence nor the duty to use the doctor\u2019s best judgment are restricted by the \u201csimilar community\u201d standard of care. This holding of Wall has since been reiterated by the Supreme Court and this Court. See Jackson v. Bumgardner 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) ((holding that \u201c[t]he scope of a physician\u2019s duty to his patient\u201d is set forth in Hunt, and only \u201c[t]he first requirement is further refined by the \u2018same or similar communities\u2019 standard and N.C.G.S. \u00a7 90-21.12\u201d); O\u2019Mara v. Wake Forest Univ. Health Scis., 184 N.C.362 N.C. 85, 659 S.E.2d 1 (2007) and 362 N.C. 468, App. 428, 435, 646 S.E.2d 400, 404 (\u201c[Hunt\u2019s] first requirement is defined in N.C. Gen. Stat. \u00a7 90-21.12 (2005)[.]\u201d), disc. review granted in part, disc. review denied in part, - S.E.2d -, 2008 N.C. LEXIS 641 (2008).\nDefendants, however, cite Bailey v. Jones, 112 N.C. App. 380, 435 S.E.2d 787 (1993), in support of their contention. Bailey could not, however, overrule Wall. Nor is it apparent, when the entire opinion is considered, that this Court\u2019s holding in Bailey provides support for defendants\u2019 position. After pointing out that N.C. Gen. Stat. \u00a7 90-21.12 did not abrogate the common law duties set out in Hunt, but rather \u201cprovided a basis by which compliance with these duties could be determined,\u201d Bailey, 112 N.C. App. at 386, 435 S.E.2d at 791, this Court used the language relied upon by defendants in this case:\nThus, the physician is required to (1) possess the degree of professional learning, skill, and ability possessed by others with similar training and experience situated in the same or similar communities at the time of the alleged negligent act; (2) exercise reasonable care and diligence, in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged negligent act, in the application of his knowledge and skill to the patient\u2019s case; and (3) use his best judgment in the treatment and care of his patient. Failure to comply with any one of these duties is negligence.\nId., 435 S.E.2d at 791-92 (emphasis added). Defendants contend that this recitation of a physician\u2019s duties indicates that testimony regarding the exercise of reasonable care and diligence must be in accordance with N.C. Gen. Stat. \u00a7 90-21.12. Of course, this language does not support defendants\u2019 assertion that opinions regarding \u201cbest judgment\u201d are limited by the standard of care set out in \u00a7 90-21.12.\nEven, however, as to the \u201creasonable care and diligence\u201d prong of Hunt, Bailey ultimately follows Wall. After determining that the plaintiff had presented expert testimony that the defendant doctor violated that duty, the Court held that the trial court erred in not instructing on that duty:\nThe instructions given in this case are insufficient. Our Supreme Court in specifically addressing this issue held that it was insufficient for the trial court to instruct the jury \u201cthat the sole issue relating to a physician\u2019s alleged negligence is whether he complied with [N.C.G.S. \u00a7 90-21.12].\u201d Wall, 310 N.C. at 192, 311 S.E.2d at 576. In this instance the jury was instructed that Dr. Jones would be negligent if he \u201cdid not act in accordance with\u201d \u201cthe standards of practice . . . among family practice physicians with similar training and experience, and who were situated in the same or similar communities at the time Dr. Jones examined the plaintiff in 1988.\u201d The use of only the precise language of N.C. Gen. Stat. \u00a7 90-21.12 was expressly prohibited by Wall, and therefore, the instruction was error requiring a new trial.\n112 N.C. App. at 388, 435 S.E.2d at 792-93. Thus, this Court ultimately held in Bailey that compliance with the duty of reasonable care and diligence was separate from the standard of care set out in \u00a7 90-21.12.\nAccordingly, we are bound by Wall and must hold that the community standard of care does not apply to the second and third prongs of Hunt. Defendants\u2019 concerns regarding the consequences of such a holding are immaterial here since only the Supreme Court may revisit its holding in Wallf.\nII\nDefendants next argue that the trial court erred by failing to exclude portions of the testimony of two of Mr. Swink\u2019s expert witnesses, Dr. Ferdinand Venditti and Dr. Richard Friedman, as a sanction under Rule 26(e) and (fl) of the Rules of Civil Procedure, because those portions of the experts\u2019 opinions were not, defendants argue, disclosed during discovery. We review a trial court\u2019s decision regarding whether to impose discovery sanctions for abuse of discretion. Willoughby v. Wilkins, 65 N.C. App. 626, 642, 310 S.E.2d 90, 100 (1983), disc. review denied, 310 N.C. 631, 315 S.E.2d 697-98 (1984). In order to warrant a new trial, defendants must, however, demonstrate that they were prejudiced by the admission of the testimony. Coffman v. Roberson, 153 N.C. App. 618, 626, 571 S.E.2d 255, 260 (2002), disc. review denied, 356 N.C. 668, 577 S.E.2d 111 (2003).\nDefendants primarily object to the fact that although Dr. Friedman and Dr. Venditti discussed in their depositions various criticisms of Dr. Weintraub and breaches of the standard of care, they did not testify specifically in terms of a failure to use best judgment or exercise reasonable care and diligence as they did at trial. A comparison of the deposition and trial testimony reveals that the expert witnesses\u2019 critique of defendants\u2019 care did not substantially vary from the deposition to the trial. The deposition testimony \u2014 even without the phrasing \u201cbest judgment\u201d and \u201creasonable care and diligence\u201d\u2014 provided defendants sufficient notice of the witnesses\u2019 criticisms of defendants to prepare for trial. In addition, Mr. Swink\u2019s written discovery responses gave defendants notice that Mr. Swink was contending that these criticisms violated all three Hunt duties.\nIn any event, defendants have not explained why their knowledge of the expert witnesses\u2019 criticisms of defendants and the contentions regarding breaches of the standard of care was inadequate for them to effectively prepare for trial in the absence of explicit disclosure from the witnesses that they would testify that these failures also constituted a failure to use best judgment or exercise reasonable diligence and care. We do not believe that the witnesses\u2019 failure to couch their criticisms in terms of \u201cbest judgment\u201d and \u201creasonable care and diligence\u201d renders the trial court\u2019s decision not to exclude the testimony manifestly unreasonable. See State v. Thibodeaux, 352 N.C. 570, 579, 532 S.E.2d 797, 804 (2000) (\u201cAbuse of the trial court\u2019s discretion will be found only where the ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.\u201d (internal quotation marks omitted)), cert. denied, 531 U.S. 1155, 148 L. Ed. 2d 976, 121 S. Ct. 1106 (2001).\nDefendants also argue that Dr. Friedman and Dr. Venditti testified at trial to previously undisclosed opinions regarding causation and other subjects. Mr. Swink has, however, accurately pointed to the portions of their depositions in which similar testimony appeared or identified testimony from other witnesses, including Mr. Swink\u2019s third expert witness, that paralleled the challenged testimony. Defendants have not, in light of the deposition testimony and the trial testimony of other witnesses, demonstrated in what way the trial court abused its discretion or specifically how they were prejudiced at trial by the admission of the testimony. See Suarez v. Wotring, 155 N.C. App. 20, 31, 573 S.E.2d 746, 753 (2002) (holding that any error in trial court\u2019s admission of expert opinion not disclosed in discovery was harmless when opinion was substantially similar to testimony given by another expert, and appellant did not show how introduction of challenged opinion influenced jury\u2019s verdict), disc. review denied and cert. denied, 357 N.C. 66, 579 S.E.2d 107 (2003).\nAlthough defendants analogize this case to Green v. Maness, 69 N.C. App. 292, 300, 316 S.E.2d 917, 922, disc. review denied, 312 N.C. 622, 323 S.E.2d 922 (1984), the defendant in Green had notified the plaintiffs just nine days prior to trial that the defendant intended to call a new expert witness who would testify regarding an entirely new medical theory of causation for the minor plaintiff\u2019s injury. This case does not, however, involve the presentation of new witnesses or new medical theories. Notably, even in Green, this Court concluded that no sanctions were warranted. Id. at 299, 316 S.E.2d at 922. Instead, the Court ordered a new trial based on the denial of plaintiffs\u2019 motion for a continuance. Id., 316 S.E.2d at 921.\nIn contrast to the plaintiffs in Green, defendants have provided only a boilerplate statement that they were prejudiced \u201cbecause they had no opportunity to prepare for cross-examination or rebuttal of testimony regarding the new opinions.\u201d Given the fact that defendants have not pointed to any entirely new medical theory presented at trial or specifically explained how they could not prepare for the testimony ultimately presented at trial, we cannot conclude that the trial court abused its discretion in declining to exclude the testimony.\nIll\nDefendants contend that the trial court also erred in admitting Dr. Venditti\u2019s testimony regarding his personal preferences and practices in conducting informed consent discussions with his patients. Specifically, defendants point to the following testimony:\nQ. Would you discuss the types of things you would discuss in an informed consent discussion[?]\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Overruled.\nA. Again, the first thing I would do is explain to the patient what the problem is. Something like your pacemaker is not functioning properly, its battery is running down. I then explain to them the procedure to deal with that. So we need to explant the old pacemaker generator, put a new one in. It\u2019s an incision under your collar bone to get into the pocket.\nI then would talk about the risks and benefits of that. The risks being bleeding, infection, those sorts of things. If we don\u2019t do it, the battery is going to run down completely and it\u2019s going to stop pacing your heart and you\u2019re going to have problems from that perspective.\nI would then talk about alternatives. Again, if we do nothing then we would have difficulty with the pacing system becoming non-functional. And then I would say do you have any questions, do you want to ask me anything about this, what I\u2019m proposing that we do.\nDefendants assert that the testimony should have been excluded as irrelevant under Rules 401 and 402 of the Rules of Evidence.\nWe first note that defendants did not object when Dr. Venditti was asked about \u201cyour practice regarding the performance of lead extractions.\u201d Dr. Venditti then proceeded to testify at length, without objection, as to his personal practice when performing a lead extraction. It is questionable, therefore, whether defendants preserved this issue for appellate review. See State v. Tarlton, 146 N.C. App. 417, 421, 553 S.E.2d 50, 53 (2001) (\u201cIt is well settled that a defendant waives objection to the admission of testimony when testimony of the same import is admitted without objection.\u201d).\nIn any event, the test for relevancy of evidence is whether it has \u201cany 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.\u201d N.C.R. Evid. 401. Although a trial court\u2019s rulings on relevancy \u201care given great deference on appeal,\u201d such rulings are \u201ctechnically . . . not discretionary and therefore are not reviewed under the abuse of discretion standard . . . .\u201d State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), appeal dismissed and disc. review denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241, 113 S. Ct. 321 (1992).\nDefendants, in support of this assignment of error, rely exclusively upon Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985). Rorrer did not, however, address the admissibility of evidence of an expert witness\u2019 personal practices under Rules 401 and 402, but rather held that the personal opinion of an expert witness as to what a professional should have done is not sufficient to establish a breach of the standard of care: \u201cThe mere fact that one [expert witness] testifies that he would have acted contrarily to or differently from the action taken by defendant is not sufficient to establish a prima facie case of defendant\u2019s negligence.\u201d Id. at 357, 329 S.E.2d at 367. .The Supreme Court in Rorrer upheld the trial court\u2019s granting of summary judgment because the expert witness\u2019 affidavit \u201cfail[ed] to state what the standard of care to which [the defendant] was subject required him to do\u201d and \u201cnowhere state[d]. that [the defendant\u2019s] inaction violated a standard of care required of similarly situated attorneys.\u201d Id. at 356-57, 329 S.E.2d at 367. Although the Supreme Court thus held that the expert affidavit was insufficient to prove a prima facie case of professional negligence, it never held that the testimony in the affidavit was inadmissible.\nDefendants, however, argue that \u201c[b]ecause personal preferences and remarks concerning how experts might have treated the decedent are not evidence of the standard of care, this evidence should have been excluded pursuant to Rules 401 and 402 of the North Carolina Rules of Evidence.\u201d This assertion overlooks the fact that such testimony may be relevant for purposes other than defining the standard of care. See Wallbank v. Rothenberg, 74 P.3d 413, 416 (Colo. Ct. App. 2003) (\u201cWhile [prior cases] make it clear that a standard of care may not be established by the testimony of the personal practices of expert witnesses, those cases do not address whether this testimony may be relevant when other evidence is presented concerning the applicable standard of care.\u201d), cert. allowed, 2003 Colo. LEXIS 579 (Colo. 2003), cert. denied, 2004 Colo. LEXIS 213 (Colo. 2004). For example, our Supreme Court has found relevant testimony of personal practices when used to explain the standard of care. See Rouse v. Pitt County Mem\u2019l Hosp., Inc., 343 N.C. 186, 195-96, 470 S.E.2d 44, 49-50 (1996) (in reversing grant of summary judgment, relying upon testimony of doctor as to \u201cwhat he normally does as an on-call attending physician\u201d as explaining the standard of care); see also Wallbank, 74 P.3d at 417 (\u201c[B]ecause each expert addressed the applicable standard of care, testimony regarding their personal practices was proper direct and cross-examination. Thus, the jury could give whatever weight it determined was appropriate to the testimony of those experts, including ignoring it completely.\u201d). Other jurisdictions have held that \u201ctestimony regarding an expert\u2019s personal practices may either bolster or impeach the credibility of that expert\u2019s testimony concerning the standard of care.\u201d Id.) see also Bergman v. Kelsey, 375 Ill. App. 3d 612, 634, 873 N.E.2d 486, 507 (\u201cOur supreme court has determined that the personal practices used by a testifying expert are not relevant and are insufficient to establish the applicable medical standard of care. However, a medical expert\u2019s personal practices may well be relevant to that expert\u2019s credibility, particularly when those practices do not entirely conform to the expert\u2019s opinion as to the standard of care.\u201d (internal citations omitted)), appeal denied, 226 Ill. 2d 579, 879 N.E.2d 929 (2007).\nDefendants\u2019 contention in this case that evidence of an expert witness\u2019 personal practices is never admissible is not supportable. We need not, however, resolve the question whether in North Carolina such evidence is always admissible. In this case, our review of Dr. Venditti\u2019s testimony indicates that it was comparable to the testimony relied upon in Rouse and, therefore, the trial court did not err in admitting the testimony.\nDefendants further argue, however, that even if the evidence was admissible, the trial court erred by refusing to give their requested limiting instruction regarding Dr. Venditti\u2019s personal preferences and practices. \u201cA trial court must give a requested instruction that is a correct statement of the law and is supported by the evidence.\u201d State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 626, 629, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134, 118 S. Ct. 196 (1997).\nDefendants\u2019 proposed instruction reads:\n[Special limiting instruction] Members of the jury, you may have heard some testimony regarding a particular expert witness\u2019 personal preference in the practice of medicine or how that particular expert would have performed in a given situation. Such testimony is not offered to prove or disprove the standard of care applicable to defendants in this case. Rather, such testimony may be considered by you only in the context of that expert\u2019s entire testimony and the weight you choose to give it.\n(Emphasis added.) The emphasized language does not, however, precisely state the applicable law. While Rorrer establishes that testimony of personal practices, standing alone, cannot prove the standard of care, the proposed limiting instruction does not parallel the holding in Rorrer, but rather incorrectly suggests that such testimony is completely irrelevant to the standard of care even when other evidence of the standard exists.\nMoreover, even if we assume, arguendo, that the trial court erred in not giving the instruction, defendants were required to demonstrate prejudice. See Outlaw v. Johnson, 190 N.C. App. 233, 243, 660 S.E.2d 550, 559 (2008) (\u201cFailure to give a requested and appropriate jury instruction is reversible error if the requesting party is prejudiced as a result of the omission.\u201d). For an appellant to be prejudiced, the failure to give the instruction must have \u201clikely misled the jury.\u201d Liborio v. King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274, disc. review denied, 356 N.C. 304, 570 S.E.2d 726 (2002).\nDefendants have made no attempt to explain in what way the jury was misled by the omission of the limiting instruction. While defendants argue generally that \u201c[t]estimony regarding personal preferences . . . creates a bogus standard of care by which defendants should be judged,\u201d defendants have not pointed to any aspect of Dr. Venditti\u2019s description of what he would do in an informed consent discussion that varied from the applicable standard of care. Accordingly, defendants have failed to demonstrate that they are entitled to a new trial as a result of the failure to give the requested limiting instruction.\nIV\nDefendants also contend that the trial court erroneously admitted hearsay testimony, including (1) testimony by Mr. Swink regarding statements of his wife, a cardiologist, and the surgeon who ultimately operated on Mrs. Swink and (2) deposition testimony of a lab technician, Hollie Boswell, regarding statements by another lab technician. Defendants further contend that the trial court should not have admitted testimony of Ms. Boswell regarding when Dr. Weintraub realized that Mrs. Swink\u2019s heart had ceased to beat. We address each piece of testimony in order.\nFirst, defendants point to Mr. Swink\u2019s testimony regarding the complications surrounding his wife\u2019s 1994 pacemaker surgery:\nQ. Now, after the procedure was over, describe what, if anything, you learned about complications associated with the procedure]?]\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Overruled.\nA. After talking with Peggy, it was my understanding that she experienced pulling in her chest. She felt like that her heart was moving in her chest when the leads were being pulled on to be removed. She felt as she was \u2014 as if she was being lifted off the table. She also recalled being resuscitated.\nMr. Swink contends that the statement falls within the present sense impression exception to the hearsay rule set out in Rule 803(1) of the Rules of Evidence.\nRule 803(1) renders admissible \u201c[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.\u201d While Mr. Swink\u2019s testimony could be read as indicating that the statements were made just after the 1994 procedure and, therefore, would fall within the exception, we need not resolve that question since defendants have made no showing as to how they were prejudiced by testimony regarding a procedure that was not the basis for the lawsuit. See Scott v. Scott, 157 N.C. App. 382, 389, 579 S.E.2d 431, 436 (2003) (holding that appellant must show that incompetent evidence caused some prejudice). This testimony simply explained why the Swinks were concerned about another lead extraction and duplicated other testimony not challenged on appeal.\nDefendants next challenge Mr. Swink\u2019s testimony reporting what he remembered Dr. Alfred B. Little saying in his deposition:\nI recall that Doctor Little stated that he asked for a surgeon to be called. None came. He asked again for a surgeon to be called and after some time none had arrived. He said he personally went to a phone and called Doctor Gerhardt\u2019s service and got in touch with him and had him come to the cath lab.\nDr. Little was an employee of defendant Southeastern at the time of his deposition. Because his statements in the deposition related to matters within the scope of his employment, those statements constituted admissions of a party-opponent under Rule 801(d) of the Rules of Evidence and were admissible.\nThe last of Mr. Swink\u2019s testimony challenged as inadmissible hearsay relates to whether Dr. Gerhardt had asked him if he had considered having an autopsy performed:\nQ. Did you have a conversation with somebody about an autopsy?\nA. Yes, I did. I had a conversation with Doctor Gerhardt.\nQ. What was discussed?\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Overruled.\nA. As I was leaving Peggy the last time, walking out of the room, Doctor Gerhardt was outside the door at a standing desk doing paperwork. And he stopped me and asked me if I had considered an autopsy and I told him that I had not. And he\u2014\n[DEFENSE COUNSEL]: Object to the hearsay, Your Honor.\nTHE COURT: Sustained.\nQ. After you had this conversation, what did you decide to do with respect to getting an autopsy?\nA. I decided to have an autopsy performed.\nWhile defendants\u2019 initial objection was overruled, the trial court sustained defendants\u2019 renewed objection regarding the.precise testimony at issue, and, thus, there is no issue to be reviewed on appeal.\nDefendants next turn to the testimony of Hollie Boswell, a lab technician present during Mrs. Swink\u2019s surgery whose deposition was videotaped and played for the jury at trial. Defendants argue that Ms. Boswell\u2019s reports of what another lab technician said or observed during the procedure constituted hearsay. The trial court, however, correctly concluded that those statements were admissible to show why Ms. Boswell undertook the actions that she did. As our Supreme Court has explained, \u201c[o]ut-of-court statements that are offered for purposes other than to prove the truth of the matter asserted are not considered hearsay. Specifically, statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.\u201d State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (internal citation omitted), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165, 123 S. Ct. 182 (2002).\nFinally, defendants contend that the trial court erred under Rule 701 of the Rules of Evidence in admitting the following testimony:\nQ.....When did Doctor Weintraub instruct you all to wake Peggy up in relation to his request that the code be called?\nA. My recollection, Marcus [Brown] was inquiring about the [oxygen] saturation], I went to check on the sat. At that point, while I\u2019m checking the sat probe, he begins to say, wake her up. I then tried to arouse her and he realized, I assumed at that point, that her heart had ceased to beat. So that point was when he asked for us to call a code.\nDefendants argue that Ms. Boswell\u2019s assumption that Dr. Weintraub had realized that Mrs. Swink\u2019s heart had ceased to beat prior to call- \u25a0 ing the code was not the proper subject of lay testimony and constituted speculation.\nEven assuming, without deciding, that this testimony does not fall within the scope of Rule 701 (governing testimony of lay witnesses \u201cin the form of opinions or inferences\u201d), this testimony was essentially identical to testimony of both Dr. Weintraub himself and Dr. Jeffrey Goodman that Dr. Weintraub had observed that the heart was not beating, that the technicians said Mrs. Swink was not responding, and that Dr. Weintraub then called the code. The admission of Ms. Boswell\u2019s testimony was thus harmless.\nV\nDefendants next challenge the testimony of Mr. Swink\u2019s economist Dr. Gary Albrecht regarding damages. Rule 702(a) provides that \u201c [i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d N.C.R. Evid. 702(a). Defendants contend that Mr. Swink \u201cfailed to show that Dr. Albrecht had sufficient skill, knowledge, or experience in or related to subject matter [sic] to qualify as an expert and given [sic] testimony on damages.\u201d\nMr. Swink tendered Dr. Albrecht as an expert in economics and valuation of lost income without objection from defendants. At trial, prior to being tendered as an expert, Dr. Albrecht testified at length regarding his qualifications to testify, such as his education; his employment history, including the fact that he taught econometrics, economic forecasting, advanced microeconomics, and introductory economics at Wake Forest University; his publications and presentations in the area of forensic economics and involving questions of valuation; and the fact he had previously testified as an expert regarding present value of lost income and services. Because defendants did not object to Dr. Albrecht\u2019s qualifications at the time he was tendered as an expert witness, defendants failed to preserve the issue for review on appeal. State v. White, 340 N.C. 264, 294, 457 S.E.2d 841, 858, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995).\nTo the extent that defendants are contending that Dr. Albrecht was not qualified to render the opinions contained in his testimony and report, that issue \u201cis chiefly a question of fact, the determination of which is ordinarily within the exclusive province of the trial court.\u201d State v. Goodwin, 320 N.C. 147, 150-51, 357 S.E.2d 639, 641 (1987). Thus, \u201c[w]hen reviewing whether the trial court erred in permitting a witness to qualify as an expert, the appellate court looks for an abuse of discretion.\u201d State v. Steelmon, 177 N.C. App. 127, 130, 627 S.E.2d 492, 494 (2006). Although defendants assert in conclusory fashion that the trial court abused its discretion in admitting Dr. Albrecht\u2019s damages opinions and report, they have not explained in what way Dr. Albrecht \u2014 based on his knowledge, skill, experience, training, or education \u2014 was not qualified to testify regarding the valuation of lost income or services. This assignment of error is, therefore, overruled.\nVI\nDefendants next argue that the trial court erred by refusing to give the jury their proposed instruction on informed consent. Defendants requested that the trial court use the informed consent instruction set out in N.C.P.I.-Civil 809.45, which the trial court agreed to do. The following colloquy occurred between the trial court and defense counsel during the charge conference regarding defendants\u2019 request for an additional special instruction regarding informed consent based on N.C. Gen. Stat. \u00a7 90-21.13 (2007):\nTHE COURT: Anything further now from the defendant?\n[DEFENSE COUNSEL]: Well, just that I did state for the record the request for the instruction that obtaining an executed written consent form for a procedure created a presumption under the law that informed consent had been properly obtained.\nTHE COURT: Is there \u2014 I [have] never seen an instruction like that.\n[DEFENSE COUNSEL]: We didn\u2019t either, Your Honor. It\u2019s in the statute. And that\u2019s really the basis for the request.\nTHE COURT: Have you got a copy of the statute there?\n[DEFENSE COUNSEL]: No, sir.\nWe have been unable to find any indication in the record or transcript \u2014 and defendants\u2019 brief and assignments of error contain no such citation \u2014 that defendants submitted this requested special instruction to the trial court in writing.\nN.C. Gen. Stat. \u00a7 1-181 (2007) and Rule 51(b) of the Rules of Civil Procedure require that requests for special instructions \u2014 i.e., non-pattern jury instructions \u2014 must be submitted to the trial court in writing prior to the charge conference. See N.C. Gen. Stat. \u00a7 1-181 (providing that special instructions must be in writing, labeled as special instructions, signed by counsel, and submitted to the trial court prior to the charge conference); N.C.R. Civ. P. 51(b) (same). Requests for special instructions not made in compliance with N.C. Gen. Stat. \u00a7 1-181 and Rule 51(b) may be denied at the trial court\u2019s discretion. SeeBeroth Oil Co. v. Whiteheart, 173 N.C. App. 89, 98, 618 S.E.2d 739, 746 (2005) (\u201cBecause defendant did not comply with the requirements of Rule 51(b), the trial court acted properly within its discretion in denying the request.\u201d), appeal dismissed and disc. review denied, 360 N.C. 531, 633 S.E.2d 674 (2006); Byrd\u2019s Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371, 379, 542 S.E.2d 689, 694 (2001) (\u201cBecause defendant did not comply with the requirements of Rule 51(b), the trial court acted properly within its discretion in denying the request.\u201d). We see no basis for concluding that the trial court abused its discretion here when defendants did not submit a written proposed instruction, and the evidence was, at best, equivocal whether Mrs. Swink had signed a written consent form that in fact covered the lead extraction.\nVII\nDefendants next argue that the trial court erred in its jury instructions by repeating Mr. Swink\u2019s seven contentions of negligence following its instruction on each of the three theories of proving medical malpractice. We disagree.\nWhen instructing the jury, the trial court first generally explained a doctor\u2019s three duties to his or her patient:\nEvery health care provider is under a duty to use his best judgment in the treatment and care of his patient. To use reasonable care and diligence in the application of his knowledge and skill to his patients care. To provide health care in accordance with the standard of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time the health care is rendered.\nThe trial court then instructed the jury regarding Mr. Swink\u2019s contentions as to each of the duties:\nThe first contention is that the defendant failed to use his best judgment in the treatment and care of his patient in that the defendant negligently failed to obtain informed consent, negligently failed to stop the lead extraction after encountering excessive scar tissue, negligently failed to consult with a surgeon prior to the lead extraction, negligently failed to prepare Margaret Swink for a pericardiocentesis [sic], negligently failed to use an arterial line, negligently failed to use echocardiographic equipment and negligently failed to treat pericardial tamponade in a timely fashion.\nThe second contention is that the defendant failed to use reasonable care and diligence in the application of his knowledge and skill to his patient\u2019s care in that the defendant negligently failed to obtain informed consent, negligently failed to stop a lead extraction after encountering excessive scar tissue, negligently failed to consult with a surgeon prior to the lead extraction, negligently failed to prepare Margaret Swink for pericardiocentesis [sic], negligently failed to use an arterialline, negligently failed to use electrocardiographic material and negligently failed to treat pericardial tamponade in a timely fashion.\nThe third contention is that the defendant failed to provide health care in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time the health care was rendered in that the defendant negligently failed to obtain informed consent, negligently failed to stop the lead extraction after encountering excessive scar tissue, negligently failed to consult with a surgeon prior to lead extraction, negligently failed to prepare Margaret Swink for pericardiocentesis [sic], negligently failed to use an arterial line, negligently failed to use echocardiographic material and negligently failed to treat pericardial tamponade in a timely fashion.\nThese jury instructions track the template for medical malpractice instructions set out in N.C.P.I. \u2014 Civil 809.00. \u201cThis Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.\u201d Caudill v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994), disc. review denied, 339 N.C. 610, 454 S.E.2d 247 (1995). Defendants do not challenge the instruction as a misstatement of the law or as unsupported by the evidence, but rather argue that \u201cthe trial judge\u2019s overt repetition of the categories of negligence and plaintiff\u2019s specific contentions of negligence was extremely prejudicial to defendants,\u201d citing Stern Fish Co. v. Snowden, 233 N.C. 269, 63 S.E.2d 557 (1951). Stem Fish did not, however, involve repetition, but rather an instruction that was deemed \u201cmisleading, if not confusing.\u201d Id. at 271, 63 S.E.2d at 558-59.\nOur Supreme Court has, nonetheless, stressed that \u201cjury instructions should be as clear as practicable, without needless repetition.\u201d State v. Trull, 349 N.C. 428, 455-56, 509 S.E.2d 178, 196 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). On the other hand, the mere fact that a trial court repeats \u201can otherwise proper instruction does not constitute error.\u201d State v. McDougald, 336 N.C. 451, 461, 444 S.E.2d 211, 217 (1994) (holding that trial court\u2019s repetition of an instruction on flight after each of the three charged offenses did not constitute improper expression of court\u2019s opinion).\nThe Supreme Court has awarded a new trial based on correct instructions only when \u201cthe instructions in their totality were so emphatically favorable to [the appellee] that [the appellants] are entitled to a new trial.\u201d Wall, 310 N.C. at 190, 311 S.E.2d at 575. In Wall, as in this case, the trial court had instructed the jury in conformity with the pattern jury instructions, but our Supreme Court determined that a new trial was warranted because of \u201cthe exculpatory nature of the pattern jury instructions themselves and to their selections and use by the trial judge.\u201d Id. at 190-91, 311 S.E.2d at 576.\nThe instructions in this case do not rise to the level present in Wall. Defendants identify nothing inherently wrong with the trial court\u2019s reciting plaintiff\u2019s contentions regarding how defendants had breached each of the Hunt duties. It happened that those contentions were the same for each duty. We do not believe that the trial court\u2019s approach in this case can be meaningfully distinguished from the repetition of the flight instruction after each offense in McDougald. When the charge is viewed in its totality, we do not believe that the instructions were overly favorable to plaintiff or that the pattern instructions can be viewed as inherently inculpatory, as required by Wall.\nDefendants also argue that \u201c[f] olio wing a jury question, the court, on its own initiative and without giving counsel an opportunity to object or to be heard, elected to instruct the jury again on the issue of negligence, this time reiterating the three methods of proving negligence and plaintiff\u2019s seven contentions.\u201d The transcript indicates, however, that when the jury asked to have a copy of the jury instructions, the trial court refused, stating that it preferred to re-read the instructions to the jury. When asked to comment on the trial court\u2019s decision to re-instruct the jury, defense counsel responded: \u201cThe defendants are content with the Court\u2019s position.\u201d Defendants did not suggest to the trial court that it omit the factual contentions. The trial court then read the instructions to the jury a second time, although it only listed once the seven contentions as to how defendants breached the three duties. After the instructions were given, defendants then renewed their objection to the trial court\u2019s reciting the seven factual contentions.\nWe do not believe that defendants have adequately preserved for appellate review the issue of re-instruction. In any event, whether to repeat instructions in response to an inquiry by the jury falls within the discretion of the trial court. State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). Given the jury\u2019s inquiry, we cannot find the re-instruction to be the \u201cneedless repetition\u201d against which the Supreme Court has warned. Id. (\u201cWe do not find this instruction to be erroneous nor do we find its repetition to be needless, in light of the fact that it was specifically requested by the jury.\u201d). We believe the charge, \u201cwhen considered contextually as a whole, is fair, correct, and adequate, and is free from prejudicial error.\u201d Jones v. City of Greensboro, 51 N.C. App. 571, 591, 277 S.E.2d 562, 575 (1981), overruled on other grounds by Fowler v. Valencourt, 334 N.C. 345, 435 S.E.2d 530 (1993).\nVIII\nIn the second appeal, defendants contend that the trial court erred by taxing certain costs against them that are not expressly authorized by statute. We must, however, first determine whether the trial court possessed subject matter jurisdiction to enter its award of costs. \u201cThe issue of jurisdiction over the subject matter of an action may be raised at any time during the proceedings, including on appeal. This Court is required to dismiss an appeal ex mero motu when it determines the lower court was without jurisdiction to decide the issues.\u201d McClure v. County of Jackson, 185 N.C. App. 462, 469, 648 S.E.2d 546, 550 (2007) (internal citations omitted).\nIn McClure, this Court held that a trial court lacked subject matter jurisdiction under N.C. Gen. Stat. \u00a7 1-294 (2007) to enter an order awarding attorneys\u2019 fees and costs after notice of appeal had been filed as to the underlying judgment. McClure, 185 N.C. App. at 471, 648 S.E.2d at 552. As McClure acknowledged, and prior decisions of this Court had held, if an award of attorneys\u2019 fees is the result of a party\u2019s prevailing as to the underlying judgment, then the issue of attorneys\u2019 fees cannot be deemed a \u201cmatter included in the action and not affected by the judgment appealed from,\u201d N.C. Gen. Stat. \u00a7 1-294, and, therefore, the trial court lacks jurisdiction to enter an order awarding attorneys\u2019 fees following appeal of the judgment. See McClure, 185 N.C. App. at 471, 648 S.E.2d at 551 (\u201cWhen, as in the instant case, the award of attorney\u2019s fees was based upon the plaintiff being the \u2018prevailing party\u2019 in the proceedings, the exception set forth in N.C. Gen. Stat. \u00a7 1-294 is not applicable.\u201d); Gibbons v. Cole, 132 N.C. App. 777, 782, 513 S.E.2d 834, 837 (1999) (\u201cHere, the trial court\u2019s decision to award attorneys fees was clearly affected by the outcome of the judgment from which plaintiffs appealed.\u201d); Brooks v. Giesey, 106 N.C. App. 586, 590-91, 418 S.E.2d 236, 238 (holding that when \u201ca statute such as section 6-21.5, which contains a \u2018prevailing party\u2019 requirement,\u201d is the basis for award of attorneys\u2019 fees, trial court \u201cis divested of jurisdiction\u201d over request for attorneys\u2019 fees by appeal of judgment), disc. review allowed, disc. review on additional issues denied, 332 N.C. 664, 424 S.E.2d 904 (1992), aff\u2019d, 334 N.C. 303, 432 S.E.2d 339 (1993).\nThe basis for the award of costs in this case was N.C. Gen. Stat. \u00a7 6-1 (2007), which provides: \u201cTo the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter.\u201d Thus, an award of costs is directly dependent upon whether the judgment is sustained on appeal. Accordingly, under the controlling reasoning of McClure, Gibson, and Brooks, a trial court lacks jurisdiction to enter an award of costs under N.C. Gen. Stat. \u00a7 6-1 once notice of appeal has been filed as to the judgment.\nHere, the judgment was entered on 1 March 2007. Defendants filed notice of appeal from that judgment on 20 March 2007. The trial court entered its order on costs on 1 May 2007. Since defendants had already appealed from the judgment, the trial court lacked jurisdiction under N.C. Gen. Stat. \u00a7 1-294 to enter the order taxing costs. We note that the judgment stated that \u201c[cjourt costs will be taxed pursuant to a separate order of this Court.\u201d This Court in McClure, however, held that such a \u201creservation\u201d of an issue was not sufficient to permit the trial court to subsequently enter an order on the issue, because \u201c[i]t is fundamental that a court cannot create jurisdiction where none exists.\u201d 185 N.C. App. at 471, 648 S.E.2d at 551.\nThus, even though we have, in this opinion, upheld the judgment, we must, because it is a matter of jurisdiction, vacate the order taxing costs and remand for entry of a new order. As this Court suggested in McClure, \u201cthe better practice is for the trial court to defer entry of the written judgment until after a ruling is made on the issue of attorney\u2019s fees [and costs], and incorporate all of its rulings into a single, written judgment. This will result in only one appeal, from one judgment, incorporating all issues in the case.\u201d Id., 648 S.E.2d at 551-52.\nNo error in part and vacated and remanded in part.\nChief Judge MARTIN and Judge STROUD concur.\n. The Moses Cone defendants did not participate in that trial and are not parties to this appeal.\n. Defendants also argue that the challenged expert testimony regarding Dr. Weintraub\u2019s use of reasonable care and diligence and the exercise of his best judgment amounted to speculation regarding Dr. Weintraub\u2019s state of mind and invaded the province of the jury. Since defendants (1) failed to object on any of these bases at trial, N.C.R. App. R 10(b)(1); (2) failed to cite in their brief any authority in support of this contention, N.C.R. App. P. 28(b)(6); and (3) did not include this contention in their assignments of error, N.C.R. App. P. 10(a), this particular issue is not properly before the Court.\n. We note that some of the testimony discussed in defendants\u2019 brief was not referenced in defendants\u2019 assignments of error and, therefore, is not properly before the Court. See N.C.R. App. P. 10(a).\n. We note, however, that Dr. Friedman did specifically refer to a \u201cmistake in judgment\u201d and \u201cbad judgment.\u201d\n. Defendants do not address at all the lead extraction personal practices testimony.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Comerford & Britt, LLP, by Kevin J. Williams, for plaintiffappellee.",
      "Wilson & Coffey, L.L.P., by G. Gray Wilson and J. Chad Bomar, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "PAUL SWINK, Individually and as ADMINISTRATOR OF THE ESTATE OF MARGARET SWINK, Plaintiff v. RICHARD A. WEINTRAUB, M.D. and THE SOUTHEASTERN HEART AND VASCULAR CENTER, P.A., Defendants\nNo. COA07-960\nNo. COA07-1088\n(Filed 3 February 2009)\n1. Medical Malpractice\u2014 expert testimony \u2014 knowledge of community standard of care \u2014 not applicable to reasonable care and best judgment requirements\nThe community standard of care does not apply to the second and third prongs of the common law duties set out in Hunt v. Bradshaw, 242 N.C. 517, reasonable care and diligence, and use of best judgment in treating the patient. The trial court in this wrongful death action arising from the replacement of a pacemaker did not err by failing to require testimony from plaintiffs experts about their knowledge of the community standard of care when giving their opinion of the doctor\u2019s exercise of reasonable care and diligence and the doctor\u2019s use of his best judgment. The argument that N.C.G.S. \u00a7 90-21.12 effectively supplanted the common law was addressed in Wall v. Stout, 310 N.C. 184.\n2. Discovery\u2014 deposition and trial testimony \u2014 no substantial variation \u2014 inability to prepare for trial \u2014 not shown\nThe trial court did not abuse its discretion in a wrongful death case arising from a pacemaker replacement by failing to exclude portions of the testimony of plaintiff\u2019s experts where the experts did not use the terms \u201cbest judgment\u201d and \u201creasonable care and diligence\u201d during discovery. The deposition and trial testimony did not vary substantially, and defendants did not explain why their knowledge of the witnesses\u2019 criticisms of defendants was inadequate for them to prepare for trial.\n3. Discovery\u2014 allegedly new opinions at trial \u2014 similar deposition testimony \u2014 new medical theories not presented\nThe trial court did not abuse its discretion in a wrongful death action arising from a pacemaker replacement by allowing plaintiff\u2019s experts to testify about previously undisclosed opinions regarding causation and other subjects. Plaintiff accurately pointed to portions of the witnesses\u2019 depositions in which similar testimony appeared or identified parallel testimony from other witnesses. Defendants did not point to any entirely new medical theory presented at trial or specifically explain how they could not prepare for the testimony presented at trial.\n4. Medical Malpractice\u2014 expert witness \u2014 personal opinion and practice\nThe trial court did not err in a wrongful death proceeding arising from the replacement of a pacemaker by admitting testimony from one of plaintiffs medical experts about his personal preferences and practices in conducting informed consent discussions. Although defendants argue that this was not evidence of the standard of care and should have been excluded as irrelevant, such evidence may be relevant for other purposes.\n5. Medical Malpractice\u2014 expert\u2019s personal preferences \u2014 requested limiting instruction \u2014 not given\nThere was no error in not giving the requested limiting instruction on testimony regarding a medical expert\u2019s personal preferences and practices in a wrongful death case arising from a pacemaker replacement. The language in the requested instruction does not precisely state the applicable law, and defendant . did not explain a way in which the jury was misled by the omission of the instruction.\n6. Medical Malpractice\u2014 concerns from prior surgery\u2014 admissible\nThe trial court did not err in a wrongful death action arising from a pacemaker replacement by admitting testimony from the decedent\u2019s husband about his wife\u2019s statements about complications after a prior surgery. Defendants did not show how they were prejudiced by testimony about a procedure that was not the basis for this lawsuit; moreover, the testimony simply explained the concern the decedent and her husband had about this procedure and duplicated other testimony that was not challenged.\n7. Evidence\u2014 hearsay \u2014 doctor\u2019s statement repeated \u2014 admission of party opponent\nThe trial court did not err in a wrongful death action arising from a pacemaker replacement by admitting testimony from the decedent\u2019s spouse that a doctor said in a deposition that he had called for a surgeon to come to the cath lab and that there had been a delay. The doctor was an employee of defendant hospital at the time of the deposition and his statements constituted admissions of a party-opponent.\n8. Appeal and Error\u2014 preservation of issues \u2014 objection overruled, then sustained\nThere was no issue for appellate review in a wrongful death action arising from a pacemaker replacement where the trial court overruled an objection to testimony from the decedent\u2019s spouse about what a doctor said concerning an autopsy, but sustained a renewed objection.\n9. Evidence\u2014 hearsay \u2014 statements in medical procedure room \u2014 basis for witness\u2019s action\nThe trial court did not err in a wrongful death action arising from a pacemaker replacement by admitting a videotaped deposition of a lab technician who was present during the procedure where the witness reported what another lab technician said or observed during the procedure. The statements were admissible to show why the witness acted as she did.\n10. Evidence\u2014 speculation \u2014 admission harmless \u2014 other admissible testimony\nThe admission of testimony from a lab technician in a wrongful death action arising from a pacemaker replacement about when the doctor realized that the decedent\u2019s heart had stopped was harmless because it was essentially identical to the testimony of two doctors, including the doctor who was the subject of the witness\u2019s testimony.\n11. Witnesses\u2014 expert \u2014 no objection to qualifications when tendered\nThere was no error in a wrongful death action arising from the replacement of a pacemaker in admitting expert testimony from plaintiff\u2019s economist about damages. Defendants did not object to the witness\u2019s qualifications when he was tendered as a witness, and did not explain any way in which he was not qualified to testify about the value of lost income or services.\n12. Wrongful Death\u2014 special instruction \u2014 informed consent\u2014 absence of written request\nThe trial court did not abuse its discretion in a wrongful death action arising from a pacemaker replacement by not giving a special jury instruction on informed consent where defendants did not submit a written proposed instruction, and the evidence was at best equivocal as to whether the decedent had signed a consent form that covered the procedure in question.\n13. Medical Malpractice\u2014 instructions \u2014 plaintiffs contentions\nThe trial court did not err in its jury instructions in a wrongful death case arising from the replacement of a pacemaker by repeating plaintiffs contentions of negligence following its instruction on each of the three theories for proving medical malpractice. Viewed in their entirety, the instructions were not overly favorable to plaintiff and the pattern instructions were not inherently inculpatory.\n14. Medical Malpractice\u2014 jury request \u2014 re-instruction\u2014plaintiff\u2019s contentions\nThe trial court did not abuse its discretion in a wrongful death action arising from a pacemaker replacement by re-instructing the jury on negligence when requested by the jury, reiterating the three methods of proving negligence and plaintiffs seven contentions. Defendants did not suggest that the trial court omit the factual contentions and did not adequately preserve the issue of re-instruction for appeal.\n15. Costs \u2014 jurisdiction\u2014order following notice of appeal\nThe trial court erred by taxing costs against defendants in a wrongful death action where the order on costs was entered after notice of appeal was filed. A reservation of the issue is not sufficient, and the order taxing costs was vacated as a matter of jurisdiction even though the underlying judgment was upheld. The better practice is for the trial court to defer entry of judgment until after ruling on attorney\u2019s fees and costs, so that there will be one appeal from one judgment.\nAppeal by defendants from judgment entered 1 March 2007 and order entered 1 May 2007 by Judge Gary E. Trawick in Guilford County Superior Court. Heard in the Court of Appeals 3 March 2008.\nComerford & Britt, LLP, by Kevin J. Williams, for plaintiffappellee.\nWilson & Coffey, L.L.P., by G. Gray Wilson and J. Chad Bomar, for defendants-appellants."
  },
  "file_name": "0133-01",
  "first_page_order": 165,
  "last_page_order": 192
}
