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Osetek v. Jeremiah11/15/2005
such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. Bass v. Johnson, 149 N.C. App. 152, 560 S.E.2d 841 (2002). Refusal of a requested charge is not error where the instructions fairly represent the issues. Bowers v. Olf, 122 N.C. App. 421, 428, 470 S.E.2d 346, 351 (1996). The decision whether to give jury instructions is within the trial court's sound discretion, and will not be overturned absent an abuse of discretion. Blackmon v. Bumgardner, 135 N.C. App. 125, 138, 519 S.E.2d 335, 343 (1999).
Plaintiff contends the trial court should have instructed thejury as follows on the portion of North Carolina Pattern Jury Instructions (N.C.P.I. -- Civ. 101.62 (motor veh. vol. 2004)): " ou will accept as conclusive and binding on you that the charges for hospital, medical, chiropractic, therapy and medication, as to which the plaintiff testified, are reasonable in amount, unless you find that the defendants have produced evidence to the effect that the charges are not reasonable."
N.C. Gen. Stat. § 8-58.1 creates a rebuttable mandatory presumption of the reasonableness of medical charges under certain conditions . N.C.G.S. § 8-58.1 (2003). Where a plaintiff introduces medical bills in support of her testimony, unless the defendant rebuts this presumption with other evidence, the jury must find that the amount is reasonable. Jacobsen v. McMillan, 124 N.C. App. 128, 134, 476 S.E.2d 368, 371-72 (1996).
Analyzing the facts in the instant case, plaintiff presentedher medical expenses to the jury, which were challenged by defendant's rebuttal evidence. The parties did not stipulate to plaintiff's medical expenses, which left "an issue" for the jury to resolve. See Blackmon at 134, 519 S.E.2d at 341 (" ecause the parties did not stipulate to . . . damages, [this issue was] to be considered by the jury.").
Defendant's rebuttal evidence challenged whether plaintiff's medical treatment and expenses from the 2001 collision were reasonable and necessary. Defendant's evidence showed plaintiff had been receiving chiropractic care since 1995 for low back pain resulting from a prior collision. Testimony from the chiropractor and the physical therapist showed plaintiff accumulated substantial medical bills for various other treatments. Defendant's evidence challenged the legitimacy of these treatments and whether the resulting medical charges were a proximate cause of the 2001 collision with defendant.
Thereafter, the trial court gave the following instructions in pertinent part:
The Plaintiff may also be entitled to recover actual damages. On this issue, the burden of proof is on the Plaintiff. This means that the Plaintiff must prove by the greater weight of the evidence the amount of actual damages proximately caused by the negligence of the Defendant, Jason Lee Jeremiah. Actual damages are the fair compensation to be awarded to the person for any past, present or future injury proximately caused by the negligence ofanother. The total of all damages are to be awarded in one lump sum. Such damages may include medical expenses, loss of earnings, pain and suffering, and permanent injury. I would now explain the law of damages as it relates to each of these. Medical expenses includes all hospital, doctor, chiropractic, physical therapy and drug bills reasonably paid or incurred by the Plaintiff as a proximate result of the negligence of the Defendant. . . .
Members of the jury, if you reach th issue [of damages], I want to caution you that you're not to mention, discuss or consider in any respect any matter that is not in evidence in this case which did not arise as a reasonable inference from the evidence in
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