{ "id": 8525221, "name": "LINDA JOHNSON KEENE, and CHARLES C. KEENE v. WAKE COUNTY HOSPITAL SYSTEMS, INC., d/b/a WAKE MEDICAL CENTER; BETTY ELLIS, R. N.; REBECCA GRIFFIN STEPHENSON, L.P.N. and O. P. MILLER, M.D.", "name_abbreviation": "Keene v. Wake County Hospital Systems, Inc.", "decision_date": "1985-05-07", "docket_number": "No. 8410SC815", "first_page": "523", "last_page": "527", "citations": [ { "type": "official", "cite": "74 N.C. App. 523" } ], "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": "319 S.E. 2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "626", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521389 ], "year": 1984, "pin_cites": [ { "page": "236", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0230-01" ] }, { "cite": "85 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "241 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610947 ], "year": 1955, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0382-01" ] }, { "cite": "241 S.E. 2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550089 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0500-01" ] }, { "cite": "147 S.E. 2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 774", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563604 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0774-01" ] }, { "cite": "311 S.E. 2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "575", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "310 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396078 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0184-01" ] }, { "cite": "234 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "648" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548093 ], "year": 1977, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0091-01" ] } ], "analysis": { "cardinality": 545, "char_count": 10313, "ocr_confidence": 0.832, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30324277593017973 }, "sha256": "0baa645ae70e9798a9372aef3d46832a8f6213ffb3f0c20744f4a6e8672df4a1", "simhash": "1:02baea24fd8631a0", "word_count": 1655 }, "last_updated": "2023-07-14T16:43:43.207286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Martin concur." ], "parties": [ "LINDA JOHNSON KEENE, and CHARLES C. KEENE v. WAKE COUNTY HOSPITAL SYSTEMS, INC., d/b/a WAKE MEDICAL CENTER; BETTY ELLIS, R. N.; REBECCA GRIFFIN STEPHENSON, L.P.N. and O. P. MILLER, M.D." ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nPlaintiffs first contend the court made five errors in the instructions to the jury. Only two of these alleged errors have been properly preserved for appellate review. The other three present no question for review. N.C.R. App. Proc. 10(b)(2).\nPlaintiffs first argue that the court erred in its instructions when it mistakenly attributed testimony to plaintiffs\u2019 expert witness which was in fact offered by defendant\u2019s expert witness. The error was immediately pointed out by counsel, the court corrected its error, and directed the jury to use their own recollection. Thus this assignment of error has no merit. Emerson v. Carras, 33 N.C. App. 91, 98, 234 S.E. 2d 642, 648 (1977).\nPlaintiffs next assign error to the court\u2019s action in instructing the jury \u201cin substantial conformity with North Carolina Pattern Jury Instructions 809.20 and 809.25, the Insurer instructions.\u201d These instructions embody the legal principle that a physician is not an insurer of results or of the correctness of his judgment, absent some guarantee or assurance by the physician to the patient. Plaintiffs do not contend that the court\u2019s statement of the law is incorrect, but argue instead that the instruction was improper because the record is devoid of evidence tending to show that defendant made any such guarantee; citing Wall v. Stout, 310 N.C. 184, 311 S.E. 2d 571 (1984), plaintiffs assert that such \u201cunduly exculpative\u201d instructions constitute reversible error. Assuming without deciding that the evidence introduced at trial falls short of raising an issue as to whether defendant provided Mrs. Keene with a guarantee, we hold such an error would not be prejudicial under the circumstances of this case. Contrary to the situation in Wall, plaintiffs here have failed to demonstrate any other error in the court\u2019s instructions. In Wall the Supreme Court said:\n[Although many of the instructions when considered in isolation were either correct or, if erroneous, were not sufficiently prejudicial to constitute reversible error, . . . the instructions in their totality were so emphatically favorable to defendant that plaintiffs are entitled to a new trial.\nId. at 190, 311 S.E. 2d at 575 (emphasis added). Our examination of the instructions in their totality in the instant case persuades us that any error committed by the court was not prejudicial.\nPlaintiffs next assign error to the court\u2019s limitation of opening statements to five minutes. Rule 9 of the General Rules of Practice for Superior and District Courts states: \u201cOpening statements shall be subject to such time and scope limitations as may be imposed by the court.\u201d The trial court clearly had the authority to so limit these opening statements. This assignment of error is meritless.\nPlaintiffs next contend the court erred when two of defendant\u2019s expert witnesses were permitted to testify, over objection, that defendant\u2019s third expert witness, Dr. McCollum, has the reputation of being the \u201cpremier hip surgeon\u201d in North Carolina. Evidence of the reputation of a person is admissible as affecting his credibility as a witness when a party has attempted to impeach that witness. Wells v. Bissette, 266 N.C. 774, 147 S.E. 2d 210 (1966). Because plaintiffs made numerous attempts to impeach Dr. McCollum, the court properly admitted evidence of reputation to rehabilitate the witness. O\u2019Quinn v. Dorman, 35 N.C. App. 500, 241 S.E. 2d 722 (1978). This assignment of error is overruled.\nBy their next assignment of error plaintiffs contend the court erred in sustaining defendant\u2019s objection to a hypothetical question plaintiffs asked defendant\u2019s expert witness. \u201c[A]n exception will not be considered on appeal where an objection has been sustained, unless the record discloses what the witness would have said if he had been permitted to answer.\u201d State v. Poolos, 241 N.C. 382, 384, 85 S.E. 2d 342, 344 (1955). Plaintiffs\u2019 failure to make an offer of proof \u201cmakes it impossible for us to know whether the ruling was prejudicial ... or not.\u201d State v. Rawls, 70 N.C. App. 230, 236, 319 S.E. 2d 622, 626 (1984) (citation omitted). Therefore, plaintiffs will not now be allowed to assert error. This assignment of error is overruled.\nPlaintiffs\u2019 last assignment of error is set out in the record as follows:\nThe court committed prejudicial error in allowing defendant\u2019s motion in limine thereby preventing plaintiff from testifying that had she been properly informed of the usual and most frequent risks of surgery, that she, subjectively, would not have consented to the surgery.\nThis assignment of error purports to be based on four exceptions. Exception No. 1 is set out in the transcript following the court\u2019s ruling tentatively allowing defendant\u2019s motion \u201cat least insofar as voir dire.\u201d Exception No. 2 appears in the transcript following the court\u2019s tentative in-chambers ruling to continue to allow defendant\u2019s motion in limine, \u201creserv[ing] the right to change the order.\u201d The following exchange then occurred between plaintiffs\u2019 counsel:\nMr. MORRIS: Do you want to note an exception to it?\nMr. MAST: I don\u2019t think at this point.\nThe next exception appears in the transcript after the jury had retired and the court entered a final order allowing defendant\u2019s motion. The last exception appears in the record immediately following defendant\u2019s written motion. Our examination of the record reveals that at no time, either when the judge indicated that he was tentatively allowing defendant\u2019s motion, or when he entered a final ruling on the matter, did plaintiffs object or indicate in any way that they disagreed with the ruling. More importantly, at no time did plaintiffs\u2019 counsel offer or attempt to question Mrs. Keene about whether she would have consented to surgery \u201chad she been properly informed of the usual and most frequent risks of surgery.\u201d We hold the court did not err in allowing defendant\u2019s motion in limine and, assuming arguendo that any error was committed by the court in its rulings on the motion, the plaintiffs have shown no prejudice.\nThe judgment appealed from is\nAffirmed.\nJudges Wells and Martin concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Mast, Tew, Armstrong & Morris, P.A., by George B. Mast and John W. Morris, for plaintiffs, appellants.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by Samuel G. Thompson and William H. Moss, for defendant, O. P. Miller, M.D., appellee." ], "corrections": "", "head_matter": "LINDA JOHNSON KEENE, and CHARLES C. KEENE v. WAKE COUNTY HOSPITAL SYSTEMS, INC., d/b/a WAKE MEDICAL CENTER; BETTY ELLIS, R. N.; REBECCA GRIFFIN STEPHENSON, L.P.N. and O. P. MILLER, M.D.\nNo. 8410SC815\n(Filed 7 May 1985)\n1. Trial \u00a7 33.4\u2014 attributing testimony to wrong witness \u2014error corrected \u2014 absence of prejudice\nPlaintiffs were not prejudiced when the trial court in its instructions mistakenly attributed testimony to plaintiffs\u2019 expert witness which was in fact offered by defendant\u2019s expert witness where the error was immediately pointed out by counsel, and the court corrected its error and directed the jury to use their own recollection.\n2. Physicians, Surgeons and Allied Professions 8 20.2\u2014 physician not insurer instruction-harmless error\nEven if the trial court erred in instructing the jury that a physician is not an insurer of the results absent some guarantee because there was insufficient evidence to show that defendant provided plaintiff patient with a guarantee, such error was not prejudicial where plaintiffs failed to show any other error in the court\u2019s instructions.\n3. Trial \u00a7 11\u2014 limitation of opening arguments\nThe trial court had the authority to limit opening statements by counsel to five minutes. Rule 9 of the General Rules of Practice for the Superior and District Courts.\n4. Witnesses \u00a7 5.2\u2014 evidence of reputation \u2014 rehabilitation of witness\nWhere plaintiffs made numerous attempts to impeach defendant\u2019s expert witness, testimony by two other expert witnesses that the first expert had the reputation of being the \u201cpremier hip surgeon\u201d in North Carolina was properly admitted to rehabilitate the witness.\n5. Appeal and Error \u00a7 24; Physicians, Surgeons and Allied Professions \u00a7 15\u2014 motion in limine \u2014preventing testimony on informed consent \u2014 failure to object\u2014 failure to question witness\nThe plaintiffs in a medical malpractice case were not prejudiced by the court\u2019s allowance of defendant\u2019s motion in limine preventing testimony by plaintiff patient about whether she would have consented to surgery \u201chad she been properly informed of the usual and most frequent risks of surgery\u201d where the record reveals that at no time, either when the court indicated that it was tentatively allowing defendant\u2019s motion, or when the court entered a final ruling on the matter, did plaintiffs object or indicate in any way that they disagreed with the ruling, and at no time did plaintiffs\u2019 counsel offer or attempt to question plaintiff patient about whether she would have consented to surgery if fully informed.\nAPPEAL by plaintiffs from Herring, Judge. Judgment entered 9 February 1984 in Superior Court, WAKE County. Heard in the Court of Appeals 3 April 1985.\nThis is a civil action wherein plaintiffs alleged that Dr. 0. P. Miller was negligent in the performance of surgery and his postoperative care of Mrs. Keene, and that defendant Miller did not obtain her informed consent due to his failure to disclose the most frequent risks of this particular surgery.\nIn February 1979, Mrs. Keene consulted defendant, an orthopedic surgeon, about pain in her left hip. Defendant subsequently hospitalized her to remove a bone tumor from her femur neck. On 20 March 1979, defendant performed a biopsy by cutting a window, or hole, in her femoral neck. After the surgery, defendant did not put internal fixation devices into Mrs. Keene\u2019s hip, nor did he immobilize her left leg with a spika cast. Defendant did fill in with a bone graft.\nOn 23 March 1979, while being moved about in bed by two nurses, Mrs. Keene\u2019s hip fractured through the biopsy site. Eventually, her left hip was replaced with an artificial hip joint.\nAt trial, the following issue was submitted to and was answered by the jury as indicated:\n1. Was the Plaintiff Linda Johnson Keene injured as a proximate cause of the negligence of the Defendant Dr. 0. P. Miller?\nAnswer: No.\nFrom a judgment dismissing plaintiffs\u2019 complaint, plaintiffs appealed.\nMast, Tew, Armstrong & Morris, P.A., by George B. Mast and John W. Morris, for plaintiffs, appellants.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by Samuel G. Thompson and William H. Moss, for defendant, O. P. Miller, M.D., appellee." }, "file_name": "0523-01", "first_page_order": 555, "last_page_order": 559 }