{ "id": 2569131, "name": "JENNIFER LOVE CAMPBELL, by and through her Guardian ad Litem, DUNCAN A. McMILLAN, MARGARET O. CAMPBEll and JEFFREY L. CAMPBELL v. PITT COUNTY MEMORIAL HOSPITAL, INC.", "name_abbreviation": "Campbell v. Pitt County Memorial Hospital, Inc.", "decision_date": "1987-12-02", "docket_number": "No. 133A87", "first_page": "260", "last_page": "266", "citations": [ { "type": "official", "cite": "321 N.C. 260" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "352 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": -1 }, { "cite": "84 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168487 ], "year": 1987, "opinion_index": -1, "case_paths": [ "/nc-app/84/0314-01" ] }, { "cite": "354 S.E. 2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745483 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0372-01" ] }, { "cite": "217 S.E. 2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "288 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565347 ], "year": 1975, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0213-01" ] }, { "cite": "326 S.E. 2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718616 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0168-01" ] }, { "cite": "347 S.E. 2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737049 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0133-01" ] }, { "cite": "86 S.E. 1050", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "170 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659292 ], "year": 1915, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0365-01" ] }, { "cite": "290 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1982, "pin_cites": [ { "page": "602" }, { "page": "603" }, { "page": "603" }, { "page": "604" }, { "page": "605" }, { "page": "605" }, { "page": "605" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "482" }, { "page": "487" }, { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "352 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "914" }, { "page": "911-12" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168487 ], "year": 1987, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0314-01" ] } ], "analysis": { "cardinality": 662, "char_count": 13255, "ocr_confidence": 0.829, "pagerank": { "raw": 5.216988078050167e-07, "percentile": 0.9407077401037667 }, "sha256": "094b5c81789ed73b97e867ff9c001791bf02bb5ece3e434c08b8b092e1a25310", "simhash": "1:87dc3e92142da05c", "word_count": 2126 }, "last_updated": "2023-07-14T17:04:28.747837+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Webb did not participate in the consideration or decision of this case." ], "parties": [ "JENNIFER LOVE CAMPBELL, by and through her Guardian ad Litem, DUNCAN A. McMILLAN, MARGARET O. CAMPBEll and JEFFREY L. CAMPBELL v. PITT COUNTY MEMORIAL HOSPITAL, INC." ], "opinions": [ { "text": "WHICHARD, Justice.\nPlaintiffs brought this action to recover damages for personal injury to Jennifer Love Campbell (plaintiff-child), minor child of Margaret O. Campbell (plaintiff-mother) and Jeffrey L. Campbell (plaintiff-father). They also sought damages for medical expenses for plaintiff-child\u2019s care, for loss of plaintiff-child\u2019s services, and for mental anguish and trauma to plaintiff-parents.\nThe complaint originally named Dr. Robert Deyton and Greenville Obstetrics and Gynecology, P.A., Dr. Deyton\u2019s professional association, as additional defendants. On 15 March 1985 plaintiffs entered into a settlement with Dr. Deyton and his professional association in the sum of $1,500,000.00, leaving Pitt County Memorial Hospital as the sole defendant.\nThe evidence at trial tended to show that on 30 April 1979 plaintiff-mother was admitted to defendant-hospital for the delivery of a baby. Plaintiff-father accompanied her. Shortly after plaintiff-mother\u2019s admission, Dr. Deyton, the attending obstetrician, determined that the baby was in the footling breech, or feet first, presentation. Dr. Richard Taft, plaintiff-mother\u2019s treating physician at the time, had told plaintiff-mother earlier that the baby was in a breech presentation, and that if that presentation continued until labor began, the method of delivery would be by Cesarean section rather than vaginally.\nBy 1:30 p.m. on the date of delivery, both Dr. Deyton and nurses assigned to monitor plaintiff-mother\u2019s delivery knew that the baby was in the footling breech presentation. No one informed plaintiff-parents of this fact or its significance, however, and Dr. Deyton proceeded with a vaginal delivery despite the position of the baby.\nFor several hours prior to delivery, the nurses monitoring the baby, who were employees and agents of defendant-hospital, observed complications which they believed were affecting the condition of the fetus adversely. One nurse expressed some of these concerns to Dr. Deyton, but she did not contact her immediate supervisor or anyone else when Dr. Deyton failed to address her concerns.\nThe baby\u2019s umbilical cord became wrapped around her legs. The baby, plaintiff-child, sustained brain damage due to severe asphyxia from the \u201centangled cord.\u201d Plaintiff-child has cerebral palsy and requires constant care and supervision.\nThe issues submitted to the jury, and the jury\u2019s answers, were as follows:\n1. Were plaintiffs, Jennifer Love Campbell and Jeffrey L. Campbell, injured by the negligence of Nurses Cannon and/or Copeland, acting as agents of defendant Pitt County Memorial Hospital, Inc.?\nAnswer: No\n2. Were the plaintiffs, Jennifer Love Campbell and Jeffrey L. Campbell, injured by the negligent failure of the defendant, Pitt County Memorial Hospital to insure the plaintiffsf] informed consent ha[d] been obtained?\nAnswer: Yes\n3. Were the plaintiffs, Jennifer Love Campbell and Jeffrey L. Campbell, injured by the corporate negligence of the defendant, Pitt County Memorial Hospital, Inc.?\nAnswer: Yes\n4. What amount, if any, is plaintiff, Jeffrey L. Campbell, entitled to recover for emotional pain and suffering?\nANSWER: $5,000\n5. What amount, if any, is the plaintiff, Jeffrey L. Campbell, parent of Jennifer Love Campbell, entitled to recover?\nAnswer: $1,646,000\n6. What amount, if any, is the plaintiff, Jennifer Love Campbell, entitled to recover?\nANSWER: $4,850,000\nThe trial court allowed defendant\u2019s motion for judgment notwithstanding the verdict as to issue three. It found that the awards in issues five and six were excessive, appeared to have been made under the influence of passion and prejudice, and were unsupported by the evidence. As to issue five, an agreed-upon remittitur of $1,000,000 was entered, reducing the award to $646,000. The parties did not agree to a remittitur as to issue six, and the trial court allowed defendant\u2019s motion for a new trial on that issue. With the above modifications, and after making an adjustment for plaintiffs\u2019 settlement with Dr. Deyton and his professional association, the trial court entered judgment in accordance with the verdict and ordered that defendant pay a portion of plaintiffs\u2019 costs. Plaintiffs and defendant appealed.\nIn defendant\u2019s appeal, the Court of Appeals held, inter alia, that the trial court erred in submitting issue four to the jury and allowing plaintiff-father to recover $5,000 for emotional pain and suffering. It reversed as to that issue, but otherwise found no error. Judge Orr dissented \u201cfrom that portion of the majority opinion imposing a duty on the hospital to insure that a patient\u2019s informed consent has been obtained prior to treatment performed by a privately retained physician [issue two].\u201d Campbell v. Pitt County Memorial Hosp., 84 N.C. App. 314, 336, 352 S.E. 2d 902, 914 (1987).\nIn plaintiffs\u2019 appeal, the Court of Appeals declined to disturb the order setting aside the jury\u2019s award of $4,850,000 to plaintiff-child on issue six. It reversed the trial court\u2019s grant of judgment notwithstanding the verdict on issue three. In light of its disposition of defendant\u2019s appeal, it did not reach plaintiffs\u2019 remaining arguments. Judge Becton dissented from the majority\u2019s refusal to hold that the trial court abused its discretion in setting aside the verdict and ordering a new trial on issue six. Id. at 331, 352 S.E. 2d at 911-12.\nBy virtue of the dissents, plaintiff-child and defendant appealed to this Court as a matter of right. N.C.G.S. \u00a7 7A-30(2) (1986). On 5 May 1987 we allowed defendant\u2019s petition for discretionary review of two issues, related to expert witness fees and prejudgment interest, which were not before us by virtue of the dissents.\nPlaintiff-Child\u2019s Appeal\nThe sole issue presented by plaintiff-child\u2019s appeal is whether the Court of Appeals erred in failing to find an abuse of discretion in the trial court\u2019s grant of defendant\u2019s motion to set aside the verdict of $4,850,000 for plaintiff-child and award a new trial as to issue six. We find no error.\nWe have established a high threshold for appellate intervention in discretionary rulings by trial courts granting or denying motions to set aside verdicts and order new trials. Appellate review \u201cis strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge.\u201d Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E. 2d 599, 602 (1982). The trial court\u2019s discretion is \u201c \u2018practically unlimited.\u2019 \u201d Id., 290 S.E. 2d at 603 (quoting from Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E. 1050, 1051 (1915)). A \u201cdiscretionary order pursuant to [N.C.] G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.\u201d Id. at 484, 290 S.E. 2d at 603. \u201c[A] manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof.\u201d Id. at 484-85, 290 S.E. 2d at 604. \u201c[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Id. at 487, 290 S.E. 2d at 605.\nThe record here reveals no request by plaintiff-child for findings of fact and conclusions of law supporting the trial court\u2019s grant of defendant\u2019s motion to set aside the verdict and award a new trial on plaintiff-child\u2019s damages. Findings and conclusions on such motions, while always helpful to an appellate court, are necessary only when requested by a party. N.C.G.S. \u00a7 1A-1, Rule 52(a)(2) (1983); Andrews v. Peters, 318 N.C. 133, 347 S.E. 2d 409 (1986). Absent findings and conclusions, our review is informed only by the \u201ccold record,\u201d which does not convince us \u201cthat the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Worthington v. Bynum, 305 N.C. at 487, 290 S.E. 2d at 605.\nAs noted in Worthington v. Bynum:\nDue to their active participation in the trial, their first-hand acquaintance with the evidence presented, their observances of the parties, the witnesses, the jurors and the attorneys involved, and their knowledge of various other attendant circumstances, presiding judges have the superior advantage in best determining what justice requires in a certain case.\n305 N.C. at 487, 290 S.E. 2d at 605. The presiding judge here had the superior advantage to make the best determination of what justice required in this case. We cannot conclude from the \u201ccold record\u201d that his ruling setting aside the verdict and awarding a new trial on plaintiff-child\u2019s damages probably amounted to a substantial miscarriage of justice. Like the Court of Appeals, we thus decline to disturb the ruling.\nDefendant\u2019s Appeal\nThe second issue submitted to the jury was: \u201cWere the plaintiffs, Jennifer Love Campbell and Jeffrey L. Campbell, injured by the negligent failure of the defendant ... to insure that plaintiffsf] informed consent ha[d] been obtained?\u201d The sole issue presented of right by defendant\u2019s appeal is whether the Court of Appeals erred in upholding the submission of this issue, the allowance of evidence thereon, the instructions thereon, and the failure to grant a directed verdict or to set aside the verdict thereon.\nJustice Webb took no part in the consideration or decision of this case. The remaining members of the Court are equally divided on the issue presented, with three members voting to affirm the Court of Appeals and three members voting to reverse. The decision of the Court of Appeals on this issue is thus left undisturbed and stands without precedential value. Forbes Homes, Inc. v. Trimpi, 313 N.C. 168, 326 S.E. 2d 30 (1985).\nThe dissenting opinion dealt only with issue two; thus, only that issue is properly before us as a matter of right. N.C.R. App. P. 16(b). Defendant nevertheless argues that the Court of Appeals erred in reversing the trial court\u2019s grant of judgment notwithstanding the verdict on issue three. Even if this argument were properly before us, our affirmance, without precedential value, of the decision of the Court of Appeals on issue two is determinative of the rights of the parties. Thus, arguments relating to issue three become moot and need not be considered. Foods, Inc. v. Super Markets, 288 N.C. 213, 227, 217 S.E. 2d 566, 576 (1975). This disposition should not, however, be viewed as indicating our approval of the Court of Appeals\u2019 treatment of issue three. See Blanton v. Moses H. Cone Hosp., 319 N.C. 372, 354 S.E. 2d 455 (1987).\nThe additional issues presented by defendant\u2019s appeal by virtue of our allowance of discretionary review are: (1) whether the trial court erred in its computation of prejudgment interest, an issue the Court of Appeals did not address, and (2) whether the Court of Appeals erred in affirming the award of fees to plaintiffs\u2019 expert witnesses. We now hold that discretionary review of these issues was improvidently allowed.\nAffirmed.\nJustice Webb did not participate in the consideration or decision of this case.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Tharrington, Smith & Hargrove, by John R. Edwards and Burton Craige; Kirby, Wallace, Creech, Sarda, Zaytoun & Cash-well, by Robert Zaytoun, for plaintiffs.", "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Robert M. Clay, Alene M. Mercer, and H. Lee Evans, Jr.; Poyner & Spruill, by J. Phil Carlton and Susan Nichols, for defendant." ], "corrections": "", "head_matter": "JENNIFER LOVE CAMPBELL, by and through her Guardian ad Litem, DUNCAN A. McMILLAN, MARGARET O. CAMPBEll and JEFFREY L. CAMPBELL v. PITT COUNTY MEMORIAL HOSPITAL, INC.\nNo. 133A87\n(Filed 2 December 1987)\n1. Damages \u00a7 16.1; Rules of Civil Procedure \u00a7 59\u2014 injury to breech baby \u2014 verdict set aside as excessive \u2014 no abuse of discretion\nIn an action against a hospital to recover damages resulting from a brain injury suffered by the minor plaintiff during a footling breech birth, the \u201ccold record\u201d did not affirmatively demonstrate a manifest abuse of discretion by the trial judge in setting aside the verdict of $4,850,000 for the minor plaintiff and ordering a new trial on the issue of the minor plaintiffs damages.\n2. Appeal and Error \u00a7 64\u2014 appellate court evenly divided \u2014 affirmance of Court of Appeals\u2019 decision \u2014 no precedential value\nWhere one member of the Supreme Court took no part in the consideration or decision of this case, and the remaining members of the Court are equally divided on an issue, the decision of the Court of Appeals on such issue is thus left undisturbed and stands without precedential value.\nJustice Webb did not participate in the consideration or decision of this case.\nAppeals by plaintiff-child and defendant of right pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, reported at 84 N.C. App. 314, 352 S.E. 2d 902 (1987), reversing in part and finding no error in part in an order and judgment entered by Phillips,