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Skinner v. Furman4/5/2005
are. Id. at __, __ S.E.2d at __, 2005 N.C. App. LEXIS 393, at *6-7. Accordingly, "'in order for the doctrine to apply, not only must plaintiff have shown that injury resulted from defendant's [negligent act], but plaintiff must able to show _ without the assistance of expert testimony _ that the injury was of a type not typically occurring in absence of some negligence by defendant.'" Id. at __, __ S.E.2d at __, 2005 N.C. App. LEXIS 393, at *7-8(quoting Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362) (emphasis added).
In this case, the trial court properly declined to instruct the jury on the doctrine of res ipsa loquitur. First, plaintiffs offered direct proof of the cause of the hypoxic brain injury : "prolonged periods of low-level hypoxia" resulting from Dr. Furman's failure to require monitoring of oxygen saturation rates, his failure to order supplemental oxygen, and his decision to perform surgery while Mr. Skinner had a degree of pulmonary impairment. When a plaintiff offers direct evidence of how the negligence occurred, an instruction on res ipsa loquitur is inappropriate. Grigg, 102 N.C. App. at 333, 401 S.E.2d at 657-68.
Second, given the facts of this case, a layperson would be unable to infer negligence without the assistance of expert testimony. Plaintiffs offered expert testimony regarding the risk of surgery to Mr. Skinner's pulmonary function, the significance of the oxygen saturation rates, and the likely cause of Mr. Skinner's mental and emotional deficits. Defendants countered with their own expert testimony. Because of the need for expert testimony and the conflicting nature of that testimony, the res ipsa loquitur doctrine was inapplicable. Howie, __ N.C. App. at __, __ S.E.2d at __, 2005 N.C. App. LEXIS 393, at *8 (res ipsa loquitur instruction was improper when the plaintiff's jaw was fractured while a dentist was removing a tooth and "without the assistance of expert testimony, the layperson would lack a basis upon which he could determine the force was excessive or improper"); Diehl, 140 N.C.App. at 380, 536 S.E.2d at 363 ("As such, because there was conflicting expert testimony as to defendant's negligence, we cannot therefore hold that 'the injury is one that [would] not ordinarily occur in the absence of some negligent act or omission' by defendant." (quoting Grigg, 102 N.C. App. at 333, 401 S.E.2d at 658)). Accordingly, this assignment of error is overruled.
III.
Plaintiffs also argue that the trial court erred in instructing the jury: (1) that the law does not require "absolute accuracy" or "infallibility" from the doctor or "the utmost degree of skill and learning known only to a few in his profession;" (2) by twice stating the phrase "negligence is not to be presumed from the mere fact of injury " after the court refused to give plaintiff's instruction on indirect negligence; and (3) by inaccurately describing plaintiffs' contentions with regard to negligence. Because plaintiffs did not object at trial with respect to the final issue, we limit our consideration of this assignment of error to the first and second issues. N.C.R. App. P. 10(b)(2) ("A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection . . . .").
Plaintiffs acknowledge that the trial court's instructions were "technically correct statements of the law." To the extent that plaintiffs' objections are grounded in their contentions that the trial court erred in not giving a specific instruction as tothe doctor's knowledge, training, and education and in not instructing as to indirect
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