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Pittman v. Stevens5/9/2005
Opinion
Heard March 1, 2005
AFFIRMED
This case is a medical malpractice case. The jury returned a verdict for the doctor. The trial court denied the appellants' motion for a new trial on the ground the trial court's erroneously failed to charge two requested jury instructions. We affirm.
FACTS
In June 1998, appellant Franklin Pittman underwent back surgery. The respondent Dr. Keith Stevens was the anesthesiologist. The surgery required that Pittman, a morbidly obese diabetic, be placed in a prone position for approximately four hours. Because of a previous cervical surgery and Pittman's other health conditions, he was more at risk for developing lesions or ulcers at pressure points. To help relieve pressure points during the surgery, Dr. Stevens placed a gel pad under Pittman's face.
Following the surgery, however, Pittman developed a lesion on his forehead - similar to a blister. Although the skin lesion eventually healed, he alleges he suffered nerve damage. Pittman testified that he has constant headaches along with "lightning strikes" or very sharp pains and his head is very sensitive. He brought this action against Dr. Stevens alleging negligence. Pittman's wife brought a loss of consortium claim.
ISSUE
Did the circuit court err in failing to charge two requested jury instructions?
DISCUSSION
At the jury charge conference, Pittman requested two jury instructions, referred to as requested charges Numbers 7 and 8:
Request to Charge No. 7
While evidence of ordinary practice or the uniform custom of persons in similar circumstances is to be weighed and considered with other circumstances in determining whether ordinary care has been exercised, conformity to custom is not in and of itself the exercise of due care as a matter of law.
Request to Charge No. 8
If there is a great degree of danger present, then there is a greater duty of care to prevent injury to other persons. When there is a risk of substantial danger present, and the symptoms of the patient are considered with such a risk, then the physician has a duty to respond in proportion to the risk. The greater the risk of the condition to the patient, the greater the duty of the physician to respond appropriately and to provide the appropriate treatment.
The trial judge stated he would cover these requested charges. After the trial judge had charged the jury, the appellants informed the judge that the requested charge Numbers 7 and 8 had not been included. After commenting on the lack of specific authority to support these requested charges, the trial judge ruled that the charge as a whole was fair. After the jury returned a verdict for the doctor, the appellants moved for a new trial on the ground that the trial judge failed to charge the requested charges. The trial judge denied the motion and stated that he thought his general charge adequately covered the requested charges.
The trial judge is required to charge only the current and correct law of South Carolina. McCourt v. Abernathy, 318 S.C. 301, 305, 457 S.E.2d 603, 606 (1995). When reviewing a jury charge for alleged error, an appellate court must consider the charge as a whole in light of the evidence and issues presented at trial. Welch v. Epstein, 342 S.C. 279, 311, 536 S.E.2d 408, 425 (Ct. App. 2000) (citing Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 514 S.E.2d 570 (1999)). A trial court's refusal to give a properly requested charge is reversible error only when the requesting party can demonstrate prejudice from the refusal. Vogt v. Murraywood Swi
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