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Skinner v. Furman4/5/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiffs Dan and Joy Skinner appeal from a jury's verdict finding defendants Richard W. Furman, M.D. and Watauga Surgical Group, P.A. not liable for medical malpractice. On appeal, plaintiffs primarily challenge the trial court's jury instructions on the standard for negligence. We hold that the instruction as given adequately stated the law applicable to the evidence and that, contrary to plaintiffs' contention, they were not entitled to an instruction on res ipsa loquitur.
Facts
In May 1998, Mr. Skinner was riding a motorcycle along the Blue Ridge Parkway while on vacation. On 5 May 1998, Mr. Skinner was involved in a minor accident in which his chest hit the pavement breaking one of his ribs. Mr. Skinner was taken to the emergency room at Watauga Medical Center where he was examined by Dr. Richard W. Furman. Dr. Furman admitted Mr. Skinner for observation because he was concerned Mr. Skinner might have suffered a splenic tear.
Upon arrival at the hospital, Mr. Skinner's oxygen saturation rates were 92 to 93 percent. An oxygen saturation rate is a measure of the percentage of oxygen in a person's blood. Dr. Furman did not order additional testing of Mr. Skinner's oxygen saturation rates at the time of his admission. One day later, Mr. Skinner's oxygen levels had fallen to 80 percent and he was experiencing much more pain. Expert witnesses testified at trial that oxygen saturation rates below 90 percent indicate that sufficient oxygen may not be reaching the brain.
When defendant continued to experience significant pain, Dr. Furman suspected an injury to Mr. Skinner's spleen. In order to ensure there was no further damage to the spleen or lungs, Dr. Furman performed exploratory surgery. After the surgery, Mr. Skinner continued to have low oxygen saturation rates and problems breathing. A day after the exploratory surgery, Mr. Skinner's oxygen saturation levels had dropped into the 50 to 60 percentrange. Additionally, Mr. Skinner was complaining of headaches and mild confusion.
Mr. Skinner was placed on medications to help alleviate fluid in his lungs and was put on a ventilator to increase his oxygen levels. Mr. Skinner's condition improved and his oxygen saturation rates returned to normal. When Mr. Skinner had stabilized, he was released from the hospital, but, according to plaintiffs' evidence, he was less attentive, his level of functioning had decreased, he experienced short-term memory problems, and he could not complete basic functions needed at his job .
Plaintiffs filed suit for medical malpractice on 29 August 2001, alleging that defendant Furman and his practice, Watauga Surgical Group, P.A., were negligent in their care and treatment of Mr. Skinner. Plaintiffs contended that Mr. Skinner suffered a hypoxic brain injury due to a low level or lack of oxygen while in defendants' care. Plaintiffs' complaint alleged that (1) when Mr. Skinner was admitted, Dr. Furman failed to order monitoring of Mr. Skinner's oxygen levels with the result that his levels were not checked for many hours; (2) Dr. Furman did not provide supplemental oxygen to Mr. Skinner for a period of 16 to 21 hours; (3) Dr. Furman inappropriately performed surgery given Mr. Skinner's pulmonary status; and (4) the surgery was unnecessary and worsened Mr. Skinner's pulmonary status and overall condition.
Plaintiffs contend that these negligent acts caused Mr. Skinner to suffer a lac
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