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Barber v. Constien8/4/1998
igent.
Harton v. Telephone Co., 141 N.C. 455, 462-63, 54 S.E. 299, 301-02 (1906)(citation omitted).
With respect to Dr. Constien, plaintiff relies solely upon his contention that t is a hornbook principle of law that persons who wrongfully injure another are liable as a matter of law for the subsequent malpractice of health care providers who attempt to treat the original injury .
"The effect of the rule," plaintiff continues is that subsequent negligent medical treatment is foreseeable as a matter of law. For that reason, it is improper to instruct the jury on intervening causation when the act relied upon by the defendant is subsequent negligent medical treatment.
Plaintiff concedes this rule has not been applied in North Carolina cases, but, citing authority from other jurisdictions, urges us to adopt it herein. We decline to do so, noting the cases cited by plaintiff generally hold intervening negligence to be a question for the jury, see, e.g., Atlanta Obstetrics v. Coleman, 398 S.E.2d 16 (Ga. 1990); Carter v. Shirley, 488 N.E.2d 16 (Mass. App. Ct.), appeal denied, 490 N.E.2d 803 (Mass. 1986); Corbett v. Weisband, 551 A.2d 1059 (Pa. Super. Ct. 1988), appeal denied, 571 A.2d 383 (Pa. 1989), and we therefore reject plaintiff's first assignment of error as concerns Dr. Constien.
With reference to Dr. Chung, plaintiff's single argument asserts the intervening negligence instruction was erroneous because "in order to be considered an intervening cause, actions by another person must have occurred after the defendant's negligent act." Because the alleged negligence of other health care providers occurred either prior to Dr. Chung's involvement or concurrently therewith, plaintiff maintains Dr. Chung thus could not be insulated from liability. However, the trial court's instruction on the issue of insulating negligence was a general one, not specific to each defendant. Moreover, in view of the result we reach below, we deem it unnecessary to address this issue further.
Plaintiff's second contention, that the trial court's intervening negligence instruction comprised an incorrect statement of law, rests in the main upon the contention that the charge entirely omitt the test of foreseeability articulated in Adams v. Mills . . . leaving the jury with no guidance on how to determine when intervening negligence insulates the original negligent act and becomes the sole proximate cause of the injury .
We are compelled to agree.
Defendants respond initially that plaintiff waived any objection to the jury charge by failing to proffer a requested instruction. See N.C.R. App. P. 10(b)(2). Assuming arguendo defendants are correct, we in our discretion elect to address the merits of plaintiff's argument, see N.C.R. App. P. 2, because it involves pattern jury instructions used regularly throughout the state.
This Court has held the use of the N.C.P.I. to be "the preferred method of jury instruction." 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). However, a new trial may be necessary if a pattern instruction misstates the law. See, e.g., Johnson v. Friends of Weymouth, Inc., 120 N.C. App. 255, 258-59, 461 S.E.2d 801, 804 (1995)(new trial required where N.C.P.I. on wrongful termination and employer's defense did not accurately reflect the law), disc. review denied, 342 N.C. 895, 467 S.E.2d 903 (1996). In the instant case, it is undisputed that the N.C.P.I. on intervening negligence utilized by the trial court lacked any reference to foreseeability. However, a survey of our appellate cases on intervening negligence indicates that reasonable
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