IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-1016

Filed: 1 May 2018

Henderson County, No. 11 CvS 890

TOKISHA M. INGRAM, Plaintiff,

v.

HENDERSON COUNTY HOSPITAL CORPORATION, INC., d/b/a MARGARET R. 

PARDEE MEMORIAL HOSPITAL, RYAN CHRISTOPHER DAVIS, M.D., ROBERT 

C. BOLEMAN, M.D., HENDERSONVILLE EMERGENCY CONSULTANTS, PC, 

AMY K. RAMSAK, M.D., and TST MEDICAL, PA., Defendant.

Appeal by plaintiff from order entered on or about 10 October 2014 by Judge 

Martin B. McGee and judgment entered on or about 24 February 2016 by Judge Mark 

E. Powell in Superior Court, Henderson County. Heard in the Court of Appeals 25 

May 2017.

Ferguson Chambers & Sumter, P.A., by James E. Ferguson, II, for plaintiffappellant.

Roberts & Stevens, P.A., by Ann-Patton Hornthal and Phillip T. Jackson, for 

defendant-appellees Henderson County Hospital Corporation, Inc. d/b/a 

Margaret R. Pardee Memorial Hospital. 

Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Emma J. Hodson, for 

defendant-appellees Ryan Christopher Davis, M.D., Robert C. Boleman, M.D., 

and Hendersonville Emergency Consultants, PC.

Northup McConnell & Sizemore, PLLC, by Isaac N. Northup, Jr., for 

defendant-appellees, Amy K. Ramsak, M.D. and TST Medical, PA.

STROUD, Judge.
INGRAM V. HENDERSON CTY. HOSP. CORP., INC.

Opinion of the Court

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Plaintiff sued defendants for medical malpractice arising out of the care they 

provided to her for sepsis. A jury ultimately found all defendants not liable. On 

appeal, plaintiff contends the trial court erred in several evidentiary rulings and in 

dismissing her claim arising out of nursing care against defendant Henderson County 

Hospital Corporation, Inc., d/b/a Margaret R. Pardee Memorial Hospital. After 

careful review, we affirm. 

Many witnesses testified regarding plaintiff’s illness, the medical care she 

received, and the standards of care for the diagnosis and treatment of her condition. 

This overview of plaintiff’s medical care omits many details and is based primarily 

upon plaintiff’s medical records and the testimony of Dr. David P. Milzman, plaintiff’s 

expert witness, who provided the initial summary of the facts to the jury. Defendants 

disputed the interpretation and meaning of some facts, but for purposes of the issues 

on appeal, we need not summarize defendants’ evidence and contentions. 

I. Factual Background

The factual background of plaintiff’s case took place over 23 and 24 February 

2010.

A. 23 February 2010

Plaintiff, then age 35, went to the emergency room at defendant Henderson 

County Hospital Corporation, Inc., d/b/a Margaret R. Pardee Memorial Hospital

(“Pardee Hospital”) on 23 February 2010 at about 9:17 p.m. Plaintiff reported that 
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she had severe pain in her back right side, which she described as at a level of 10 out 

of 10. Plaintiff also had a fever, nausea, vomiting, fatigue, and shortness of breath. 

Hospital employees took plaintiff’s blood pressure and temperature; plaintiff’s heart 

rate was 103 and her blood pressure was 135/83. 

Within about five minutes, plaintiff was seen by defendant Ryan Christopher 

Davis, M.D. Defendant Davis evaluated plaintiff and noted that she had abdominal 

cramps, vomiting, and body aches; he noted her pain was mild, even though she had 

identified her pain as level 10 out of 10 to a nurse a few minutes earlier. Defendant 

Davis did not note that plaintiff’s pain was on her right side and noted no prior 

surgeries, although plaintiff “had had her tubes tied.” Defendant Davis did a physical 

examination of plaintiff and noted that plaintiff had tenderness but no “guarding and 

rebound” which would indicate a “really severe abdominal exam.” Defendant Davis

did not perform a pelvic examination; he did order two laboratory tests, one to check 

her urine and “basic chemistries” which shows “kidney function and . . . basic 

electrolytes, sodium, potassium chloride, serum bicarbonate and sugar.” Defendant 

Davis prescribed, and plaintiff received, Toradol, an intravenous (“IV”) pain 

medication; Zofran, for vomiting; and IV fluids.

By about 10:30 p.m., plaintiff’s blood pressure was a little lower but her heart 

rate was still 103; plaintiff reported her pain as 7 out of 10. Defendant Davis received 

plaintiff’s lab test results showing her creatinine was slightly elevated and her urine
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showed a trace of blood and “a little bit of sugar,” and white blood cells. These results

usually mean “you are fighting a bacterial infection” and indeed plaintiff’s urine also 

had “a few bacteria.” Defendant Davis returned to see plaintiff and reexamined her,

noting that she felt better. Defendant Davis gave plaintiff an oral antibiotic, 

Levaquin 500 milligrams, and Vicodin for pain. Defendant Davis diagnosed plaintiff 

with vomiting and a urinary tract infection. Defendant Davis gave plaintiff

prescriptions for Cipro, an oral antibiotic, and Vicodin for pain. Defendant Davis 

discharged plaintiff by 11:04 p.m.

 Plaintiff’s expert witness, Dr. Milzman, testified that Defendant Davis “got a 

lab result” but “ignored the signs and symptoms” plaintiff reported. Specifically, 

plaintiff did not report “the most common thing in a urine infection,” burning while 

urinating nor did she report frequent urination, urgency, or pain in her bladder. Dr. 

Milzman further testified that if part of plaintiff’s issue was dehydration from 

vomiting, plaintiff’s heart rate should have dropped some after receiving the IV fluid, 

but it did not. Plaintiff was still in pain, and “[p]ain that bad, that’s not a urine 

infection.”

Dr. Milzman opined that Defendant Davis should have kept plaintiff in the 

hospital until he could get plaintiff’s heart rate under 100 and get better pain relief. 

Dr. Milzman also testified that Defendant Davis needed to determine why plaintiff’s

right side was hurting so much by performing an ultrasound or a CAT scan. In 
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addition, Defendant Davis should have “done a blood count” which may have 

indicated a high white blood cell count as based on the tests done, the elevated 

creatinine level could indicate kidney injury. Dr. Milzman ultimately testified that 

Defendant Davis failed to provide proper care by failing to “recognize the initial and 

progressive severity” of plaintiff’s condition, failing “to properly evaluate changing 

values in her condition, including a heart rate and her pain complaint,” failing to give 

her IV antibiotics which would generally get “around faster to the body,” failing to 

examine her properly on her right side pain, and failing to improve her condition 

before she was discharged. 

B. 24 February 2010

The next day, 24 February 2010, plaintiff returned to Pardee Hospital ER at 

about 3:36 p.m.1 A nurse noted plaintiff had a urinary tract infection and 

hypotension/tachycardia; hypotension is low blood pressure, and tachycardia is a high 

heart rate. The nurse noted plaintiff as a priority level 2 patient, which is one level

higher than she was assigned the night before, but instead of having a physician see 

plaintiff, hospital personnel sent her to the “walk-in side” of the ER where she was

seen by a physician assistant; this would indicate that they believed her condition to 

 

1 The trial court allowed a defense motion to preclude “testimony from Ms. Ingram, the plaintiff 

in this case, about her recollection of presenting to the emergency department on the morning of 

February 24th[.]” (Emphasis added.) But despite this ruling, plaintiff was allowed to testify that she 

had come to the ER in the morning, but was told to return “‘home and give the medication time to 

work.’” There was no medical record of the visit. 
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be “less emergent.” Plaintiff’s temperature was 97; her heart rate was 100, and her 

blood pressure was 99/51 – “a significant drop” from the night before; her pain level 

was still 10 out of 10. Mr. Ursin, a physician assistant, saw plaintiff at about 4:30 

p.m. Mr. Ursin noted plaintiff’s treatment from the night before and that plaintiff

had an appointment with her doctor the next day. Plaintiff reported that she was 

still nauseated and vomiting and had vomited up her medication; she also felt 

dehydrated. Mr. Ursin noted plaintiff had body aches and chills. 

Although it had been about an hour since plaintiff’s blood pressure had been

checked, Mr. Ursin did not recheck it nor did he note any problems from her physical 

exam. Mr. Ursin ordered 500 cc of IV fluid, some morphine, Toradol for pain

(although he did not chart the pain), an IV antibiotic, and Zofran. Dr. Milzman noted 

that 500 cc of fluid would not be enough to raise plaintiff’s blood pressure, giving 

plaintiff morphine could cause her blood pressure to drop, and Toradol could harm 

her kidneys; again, plaintiff’s creatinine levels from the night before indicated she 

may have kidney injury. Mr. Ursin also ordered labs. A little more than an hour 

later, plaintiff’s lab results came back showing her creatinine had gone up indicating 

“her kidney function is much worse . . . . [F]or the first time we have a blood count, 

and it’s low. . . . . [A] low blood count goes along with being severely infected in some 

patients.”
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About 6:00 p.m., a nurse went to check on plaintiff and could not get a blood 

pressure reading and could only feel a faint pulse; her blood pressure was 60 palpable, 

meaning she was in shock and did not have “enough blood pressure to adequately 

perfuse the body.” Mr. Ursin directed that the remainder of the 500 cc of fluid be 

administered, but he did not direct any other care or consult a physician. Defendant 

Robert C. Boleman was on duty at the time. 

At 6:50 p.m., plaintiff’s blood pressure was even lower, 50/25. Mr. Ursin first 

consulted defendant Amy K. Ramsak, M.D. At about 7:56 p.m., defendant Boleman 

first saw plaintiff. Defendant Boleman ordered more antibiotics and started 

dopamine, a medication to help raise blood pressure. At this point, plaintiff started 

to receive critical care. Over the next hour, plaintiff received additional medication 

to raise her blood pressure, fluid, and antibiotics. At 9:01 p.m., defendant Ramsak 

who had previously provided other orders by phone, ordered a lactate level; the result 

was 5.6, which is “very high” and placed plaintiff at “50 percent, probably closer to 60 

percent mortality at that time.” By 11:00 p.m., plaintiff was given a breathing tube 

and placed on a ventilator; hospital personnel continued to work on resuscitating 

plaintiff through that night and into the next morning. Plaintiff had progressed from 

shock to septic shock; Dr. Milzman described this progression:

[W]e have different criteria that we use for describing an 

infectious syndrome which takes into account any two of up 

to seventeen combinations of heart rate and temperature 

and white blood cell count and respiratory effort 
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measurement. And so that’s called what we call SIRS or 

systemic inflammatory response syndrome, which is 

basically an infectious series of information that we use to 

identify people at big risk. So you can have an infection.

We talked about sepsis, when now the infection has 

created changes in the body’s response. So not just a sore

throat, a strep throat, but a -- maybe high fever and high 

heart rate, that will get you sepsis. . . . 

. . . . 

. . . So if you want to think of it as a spectrum . . . . there’s 

regular infection and then what we calls SIRS, which is 

systemic inflammatory response syndrome. And then 

there’s sepsis, a source of infection plus these criteria. So 

that’s sepsis.

And then there’s severe sepsis which is you have the 

infection with all of these markers, plus the body is starting 

to fail. Either one or two organ systems start to fail. Like 

the kidneys start to fail. Like with Ms. Ingram, 

unfortunately. I told you her creatinine, which is a marker 

for kidney injury, is starting to go up. Later on she has 

trouble breathing, can’t breathe on her own. They have to

put a breathing tube in, put her on a ventilator which 

happens at 11:00 p.m. that night. So the body -- different 

organ systems in the body, the lungs, now are starting to 

fail. 

. . . . 

And you go from severe sepsis with a mortality rate of 

anywhere between 20 and 40, depending who you read, to 

septic shock, where now you have a mortality of 50 to 70 

percent.

Dr. Milzman testified that Mr. Ursin did not provide adequate care because he 

did not make his supervising physician aware of plaintiff’s 60 palp blood pressure 

when this was first discovered about 6:00 p.m., and he did not consult with the ICU 

and ask that plaintiff be admitted. Dr. Milzman also testified that defendants had 

missed the opportunities to intervene the night before or much earlier on 24 February 
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after plaintiff returned to the ER. “[I]f you can intervene and prevent the patient 

from going into shock, you have a much better chance at survival.”

C. Treatment at Mission Hospital

The next day, 25 February 2010, plaintiff was transferred to another hospital, 

Mission St. Joseph’s Hospital in Asheville, because she needed “dialysis to get off the 

excess fluid.”2 Plaintiff was hospitalized for over a month. Upon discharge from 

Mission Hospital, 

[i]t was noted in the records that a tampon was left in her 

at the time of catheterization and it was not immediately 

discovered. She had many diagnoses including severe 

systemic inflammatory response syndrome, suggestive of 

overwhelming sepsis. She had extensive finger and toe 

necrosis and skin sloughing with necrosis on both calves. 

Her fingers were eventually surgically removed and she is 

to have her toes removed in the near future. She was 

discharged from Mission Hospital on March 29, 2010.

Plaintiff had additional medical treatment after her discharge from the hospital and 

eventually lost all of her fingers and both legs below the knee.

II. Procedural Background

Plaintiff filed a complaint against defendants in May of 2011, alleging that 

each defendant was negligent in providing care and this resulted in her devastating 

injuries. Defendants all filed answers, denying the substantive allegations. 

Defendants also filed various motions, but for purposes of this appeal, we will not 

 

2 Plaintiff did not bring any claims against Mission Hospital.
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discuss them all. In March of 2013, defendant Pardee Hospital moved to dismiss 

“[p]laintiff’s complaint to the extent the complaint alleges or asserts that said 

Defendant is liable for the negligence of any health care provider except for 

Defendants Ryan Christopher Davis, M.D. and Robert C. Boleman, M.D., the health 

care providers that Plaintiff’s 9(j) expert identified as being negligent.” In October 

of 2014, the trial court allowed the motion and dismissed plaintiff’s claims against 

defendant Pardee Hospital “to the extent the Complaint asserts a claim for negligence 

based upon the theory that the nursing staff of Defendant County Hospital 

Corporation, Inc., d/b/a/ Margaret R. Pardee Memorial Hospital failed to comply with 

the applicable standard of care.”

The jury was impaneled on 29 January 2016, and the jury entered its verdict 

on 23 February 2016. The jury ultimately determined plaintiff had not been “injured 

by the negligence” of any defendant. In February of 2016, the trial court entered 

judgment determining plaintiff should “recover nothing” and her action was 

dismissed with prejudice. Plaintiff appeals both the October 2014 order and the 

February 2016 judgment.

III. Medical Malpractice Claims

In Smith v. Whitmer, this Court summarized the elements of a medical 

malpractice claim and how the plaintiff must prove those elements:

In a medical malpractice claim, a plaintiff must 

show (1) the applicable standard of care; (2) a breach of 
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such standard of care by the defendant; (3) the injuries 

suffered by the plaintiff were proximately caused by such 

breach; and (4) the damages resulting to the plaintiff. 

Section 90–21.12 of the North Carolina General Statutes 

prescribes the appropriate standard of care in a medical 

malpractice action:

In any action for damages for personal injury 

or death arising out of the furnishing or the 

failure to furnish professional services in the 

performance of medical, dental, or other 

health care, the defendant shall not be liable 

for the payment of damages unless the trier of 

the facts is satisfied by the greater weight of 

the evidence that the care of such health care

provider was not in accordance with the 

standards of practice among members of the 

same health care profession with similar 

training and experience situated in the same 

or similar communities at the time of the 

alleged act giving rise to the cause of action.

Because questions regarding the standard of care for 

health care professionals ordinarily require highly 

specialized knowledge, the plaintiff must establish the 

relevant standard of care through expert testimony. 

Further, the standard of care must be established by other 

practitioners in the particular field of practice of the 

defendant health care provider or by other expert 

witnesses equally familiar and competent to testify as to 

that limited field of practice. 

Although it is not necessary for the witness 

testifying as to the standard of care to have actually 

practiced in the same community as the defendant, the 

witness must demonstrate that he is familiar with the 

standard of care in the community where the injury 

occurred, or the standard of care of similar communities. 

The same or similar community requirement was 

specifically adopted to avoid the imposition of a national or 

regional standard of care for health care providers. 
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159 N.C. App. 192, 195–96, 582 S.E.2d 669, 671–72 (2003) (citations and quotation 

marks omitted).

IV. Admission of Clinical Studies

Plaintiff first contends the trial court erred in allowing admission “into 

evidence, through defense questioning, of testimony by experts regarding three 

studies published four to five years after the events giving rise to plaintiff’s claims[.]” 

(Original in all caps.)3 Plaintiff contends the three studies “erroneously addressed 

the standard of care[,]” “the patients in the study were not comparable to plaintiff[,]” 

“the outcomes in the studies were irrelevant[,]” “the purpose of the studies was 

irrelevant[,]” and “the probative value of the testimony was substantially outweighed 

by its prejudicial effect[.]” (Original in all caps.) 

A. Preservation of Objection

 

3 Evidence about the three studies came before the jury through testimony, and thus plaintiff 

is not challenging the admission of the three studies themselves but rather the testimony regarding 

them. But the trial court considered the three studies themselves for purposes of ruling on plaintiff’s 

evidentiary objections, so we will consider this issue based upon the same information. 

 
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Defendants contend plaintiff failed to preserve her objection to the admission

of evidence regarding the three studies -- ProCESS,4 ProMISE,

5 and ARISE6

(collectively “three studies”) -- and has waived review on appeal because plaintiff also 

presented evidence related to the three studies on direct examination in questioning 

her own expert witness. Defendants agree they first mentioned and introduced 

evidence regarding the studies and also that plaintiff made a continuing objection 

which the trial court allowed. But defendants argue that despite the valid continuing 

objection, plaintiff later waived that objection when her counsel asked questions 

regarding the studies on direct examination. According to defendants’ argument, 

plaintiff could not ask questions on direct examination regarding the three studies 

without waiving her objection. 

Although defendants’ argument focuses on a few lines of the transcript, we 

have reviewed all of the relevant testimony and full context of plaintiff’s questioning

regarding the three studies. Once the trial court had allowed the evidence regarding 

 

4 The ProCESS Investigators, A Randomized Trial of Protocol-Based Care for Early Septic 

Shock, The New England Journal of Medicine 370;18, p. 1683, May 1, 2014 (“ProCESS”).

5 Paul R. Mouncey, M.Sc., Tiffany M. Osborn, M.D., G. Sarah Power, M.Sc., David A. Harrison, 

Ph.D., M. Zia Sadique, Ph.D., Richard D. Grieve, Ph.D., Rahi Jahan, B.A., Sheila E. Harvey, Ph.D., 

Derek Bell, M.D., Julian F. Bion, M.D., Timothy J. Coats, M.D., Mervyn Singer, M.D., J. Duncan 

Young, D.M., and Kathryn M. Rowan, Ph.D. for the ProMISE Trial Investigators, Trial of Early, GoalDirected Resuscitation for Septic Shock, The New England Journal of Medicine, March 17, 2015 

(“ProMISE”).

6 The ARISE Investigators and the ANZICS Clinical Trials Group, Goal-Directed Resuscitation 

for Patients with Early Septic Shock, The New England Journal of Medicine, October 9, 2014 

(“ARISE”). 
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the three studies over plaintiff’s objection, she was not required to avoid mention of 

the studies but was permitted to attempt to limit or avoid any prejudice from the 

evidence without losing the benefit of the continuing objection: 

The well established rule that when incompetent evidence 

is admitted over objection, but the same evidence has 

theretofore or thereafter been admitted without objection, 

the benefit of the objection is ordinarily lost, but, as stated 

by Brogden, J., in Shelton v. Southern R. Co., 193 N.C. 670, 

139 S.E. 232, 235: The rule does not mean that the adverse 

party may not, on cross-examination, explain the evidence 

or destroy its probative value, or even contradict it with 

other evidence upon peril of losing the benefit of his 

exception.

State v. Godwin, 224 N.C. 846, 847–48, 32 S.E.2d 609, 610 (1945) (emphasis added)

(quotation marks omitted).

Plaintiff’s questioning regarding the three studies pointed out their limitations 

and differences and were intended to demonstrate her contention that they were not 

relevant to her case. Since the trial court allowed the evidence over her objection, 

plaintiff could attempt to “contradict” the studies with her witnesses’ testimonies. 

See id. Because plaintiff properly preserved her continuing objection, her later 

questioning on direct examination of her witnesses regarding the three studies did 

not waive her objection.

B. EGDT and the Three Studies 

During the trial, several medical studies were discussed. Plaintiff contended 

that she should have received early goal-directed treatment (“EGDT”) and 
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defendants countered with other studies. The EGDT protocol was described in an 

article published in 2001 in which Dr. Emanuel Rivers was the principal investigator

(“Rivers study”).

7 Dr. Rivers compared the outcomes in two groups of patients 

presenting with sepsis; this trial was done at a single hospital and enrolled 263 

patients.8 Rivers study at 1368. The control group was the “standard-therapy 

group” which was “treated at the clinicians’ discretion according to a protocol for 

hemodynamic support . . . with critical-care consultation, and were admitted for 

inpatient care as soon as possible.” Id. at 1370 (footnote omitted). The other group 

received the EGDT protocol. See id.

One of plaintiff’s expert witnesses,9 Dr. Daniel Snider, explained EGDT and 

the results of the Rivers study in his testimony. All of the patients presented with 

sepsis, and one group received the EGDT protocol -- “from the beginning, starts IV 

fluid, starts antibiotics, aggressive IV fluids” -- and the other group received the 

 

7 Emanuel Rivers, M.D., M.P.H., Bryant Nguyen, M.D., Suzanne Havstad, M.A., Julie Ressler, 

B.S., Alexandria Muzzin, B.S., Bernhard Knoblich, M.D., Edward Peterson, Ph.D., and Michael 

Tomlanovich, M.D. for the Early Goal-Directed Therapy Collaborative Group, Early Goal-Directed 

Therapy in the Treatment of Severe Sepsis and Septic Shock, The New England Journal of Medicine, 

345;19, p. 1368, November 8, 2001 (“Rivers study”).

8

“Twenty-seven patients did not complete the initial six-hour study period (14 assigned to the 

standard therapy and 13 assigned to early goal-directed therapy)[.]” Rivers study at 1371.

9 The trial court allowed Dr. Snider “to testify as an expert in these fields” and seemed to be 

referring to the fields of internal medicine and emergency medicine. But the trial court went on to 

state, “[h]owever, in regard to the standard of care, I will not allow him to testify to the standard of 

care in regard to the emergency room physicians or emergency department physicians, except to the 

extent that they had some duty to report to someone else when certain symptoms or certain things 

were observed in regard to the plaintiff.” Plaintiff contests this determination by the trial court, and 

we address that issue in a later section.
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“standard therapy” at that time. Dr. Snider testified that Dr. Rivers

found that the patients that he had enrolled in his protocol 

which I called Early -- he identified them as soon as he saw 

SIRS, which is basically vital signs and a white blood cell 

count if he needs it -- Goal-Directed -- he had these goals, 

he wanted to get fluids in the patient a fast as he could. 

That was a goal. He wanted to maintain a blood pressure 

with pressors, dopamine or Levophed which is a brand 

name for norepinephrine which is a precursor to 

adrenaline. Probably more than you need know. GoalDirected, by trying to achieve these goals, good blood 

pressure, good fluid resuscitation, antibiotics, those are all 

worthy goals in a septic patient -- Therapy. So that’s EGDT 

that we’ve been hearing over and over. 

What did he find in the treatment of the early goaldirected therapy? He found that in six hours they had a 

lower heart rate, they had a higher blood pressure. That’s 

significant. Blood pressure is where it’s at. You want that 

blood pressure high. Because a low blood pressure, shock 

in the worst case, means you are not getting oxygen to the 

tissue, the tissue is dying, your lactate acid is going up,

your kidneys are failing, your brain is starting to shut

down, you’re becoming lethargic or worse, comatose, your 

breathing is not functioning, you have to go on a ventilator. 

All bad things. But he found that the blood pressure was 

coming up at six hours in the treatment group that got the 

goal-directed therapy, early goal-directed therapy.

So what else did he find? Well, ultimately following 

these patients out further he found that 46 percent 

survived from septic shock versus 30 percent in the 

treatment arm that did not get early goal-directed therapy. 

46 percent versus 30. That’s for every seven patients that 

would have died, one of those patients actually survived, 

they got to go home and with be their family. So it was a 

big deal saving one life that you would have lost out of 

every seven.

So what happened next? Well, this was published in 

the New England Journal of Medicine. It’s pretty

prestigious, no matter what you’ve heard. I've certainly
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never been published in the New England Journal, and I 

would love to be. It’s – the world took notice. Okay? In 2004 

an international committee made up of doctors from all 

over the world, Germany, Latin America, Japan, United 

States of course, of all kinds of doctors, critical care doctors, 

emergency medicine doctors, surgeons, infectious disease 

doctors, all of these committees and doctors and countries 

got together and they came up with guidelines, much of 

what was based on Dr. Rivers’ studies, Guidelines For the

Treatment of Sepsis. And it was published in, I'm sure – I’m 

quite confident, more than one journal because it was just 

so far-reaching. 

And those guidelines recommended certain things. 

They recommended rapid fluids. They recommended 

antibiotics. They recommended all of this within six hours. 

They even recommended things that -- that Dr. Rivers had 

found would be helpful but have since found to be maybe 

not as helpful as he thought. But they recommended that 

in 2004. And by 2010 those were still the guidelines 

internationally.

The Rivers study noted that its “primary efficacy end point” was “[i]n-hospital 

mortality[,]” and secondary end points were “resuscitation end points, organdysfunction scores, coagulation-related variables, administered treatments, and the 

consumption of health care resources.” Id. at 1370. The Rivers study concluded that 

EGDT 

provided at the earliest stages of severe sepsis and septic 

shock, though accounting for only a brief period in 

comparison with the overall hospital stay, has significant 

short-term and long-term benefits. These benefits arise 

from the early identification of patients at high risk for 

cardiovascular collapse and from early therapeutic 

intervention to restore a balance between oxygen delivery 

and oxygen demand.
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Id. at 1376.

Defendants’ witnesses presented evidence regarding the three studies, which 

plaintiff contends are not relevant. All three studies compared the EGDT protocol to 

other standard treatment; all note some controversy regarding the efficacy of the 

EGDT protocol. As described by the ProCESS study, the Rivers study was “[i]n a

single-center study published more than a decade ago” which involved “patients 

presenting to the emergency department with severe sepsis and septic shock” which 

found that 

mortality was markedly lower among those who were 

treated according to a 6-hour protocol of early goal-directed 

therapy (EGDT), in which intravenous fluids, 

vasopressors, inotropes, and blood transfusions were 

adjusted to reach central hemodynamic targets, than 

among those receiving usual care. We conducted a trial to 

determine whether these findings were generalizable and 

whether all aspects of the protocol were necessary.

ProCESS at 1683. 

The ProCESS study was done from 2008 to 2013 in 31 United States emergency 

departments with 1,341 patients enrolled. See id. at 1683, 1686. ProCESS considered 

differences in 90 day mortality, 1-year mortality, and “the need for organ support.” 

Id. at 1683, 1685. The ProCESS study ultimately concluded that “protocol-based 

resuscitation of patients in whom septic shock was diagnosed in the emergency 

department did not improve outcomes.” Id. at 1683. 

The ProMISE trial was conducted in 56 hospitals in England from 2011 to 
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2014, with 1,260 patients enrolled. ProMISE at 1, 3. ProMISE concludes that “[i]n 

patients with septic shock who were identified early and received intravenous 

antibiotics and adequate fluid resuscitation, hemodynamic management according to 

a strict EGDT protocol did not lead to an improvement in outcome.” Id. at 1. 

The ARISE study tested “the hypothesis that EGDT, as compared with usual 

care, would decrease 90-day all-cause mortality among patients presenting to the 

emergency department with early septic shock in diverse health care settings.” 

ARISE at 2. The ARISE trial was conducted from 2008 until 2014 at 51 hospitals in 

several countries, most in Australia or New Zealand, with 1,600 patients enrolled. 

See id. at 1-2. The ARISE study noted, 

EGDT was subsequently incorporated into the 6-

hour resuscitation bundle of the Surviving Sepsis

Campaign guidelines, and a number of nonrandomized

studies showed a survival benefit with bundle-based care

that included EGDT. Despite such successes, considerable

controversy has surrounded the role of EGDT in the

treatment of patients with severe sepsis. Concerns have

included the potential risks associated with individual

elements of the protocol, uncertainty about the external

validity of the original trial, and the infrastructure and

resource requirements for implementing EGDT.

Id. at 2 (footnotes omitted). ARISE concluded that “the results of our trial show that

EGDT, as compared with usual resuscitation practice, did not decrease mortality

among patients presenting to the emergency department with early septic shock.” Id.

at 10.
INGRAM V. HENDERSON CTY. HOSP. CORP., INC.

Opinion of the Court

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As noted in the summary of plaintiff’s care, her evidence showed first that her 

diagnosis of sepsis was delayed, and second, she did not receive EGDT. Generally, 

plaintiff’s evidence showed that her condition was not correctly diagnosed on 23 

February, her diagnosis was delayed on 24 February, and her initial treatment on 

both days she came to the hospital was much less aggressive than treatment by 

EGDT. Plaintiff contended to the jury that if she had been promptly diagnosed with 

sepsis and received EGDT, her outcome would have been improved and she would 

not have suffered serious and permanent injuries, including amputations.

C. Relevance of Studies and Prejudicial Effect

Plaintiff argues that the three studies are not relevant for several reasons. 

Plaintiff contends that the three studies “erroneously addressed the standard of care”

and considered “mortality, not morbidity.” Plaintiff also argues that the purposes 

and outcomes of the three studies were not relevant because the study patients were 

not similar to or in the same circumstances as plaintiff. Plaintiff’s fifth argument is 

that even if the studies are relevant “the probative value of the testimony was 

substantially outweighed by its prejudicial effect[.]”

[Under Rule 401 e]vidence is relevant if it has any 

tendency to make the existence of any fact that is of 

consequence to the determination of the action more 

probable or less probable than it would be without the 

evidence. . . . Although the trial court’s rulings on 

relevancy technically are not discretionary and therefore 

are not reviewed under the abuse of discretion standard 

applicable to Rule 403, such rulings are given great 
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Opinion of the Court

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deference on appeal. Because the trial court is better 

situated to evaluate whether a particular piece of evidence 

tends to make the existence of a fact of consequence more 

or less probable, the appropriate standard of review for a 

trial court’s ruling on relevancy pursuant to Rule 401 is not 

as deferential as the abuse of discretion standard which 

applies to rulings made pursuant to Rule 403. 

Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and 

quotation marks omitted).

1. Timing of the Three Studies 

The primary basis for plaintiff’s objection, as noted in her motion in limine and 

during argument of the motions, was her contention the three studies are not relevant 

to the issues in dispute because they were published in 2014 and 2015 and could not 

have been a consideration in determining the standard of care for treatment of sepsis 

in 2010. In other words, plaintiff contends the three studies are not relevant to the 

issues in dispute because they were published after her hospitalization: 

These studies that they are talking about came up

in 2014, four years after Ms. Ingram had lost her fingers

and her legs and her feet. And what they are trying to do -

- we have a motion to prevent them from bringing this

study in, because it doesn’t inform anything about what

happened to Ms. Ingram in 2010. And essentially what

they are trying [to] do is to change in 2014 the standard of

care in 2010. That’s what these studies are about.10

 

10 In addition, plaintiff contended that even if they were relevant to some extent, they were 

unfairly prejudicial due to the risk of misleading or confusing the jury as to the standard of care in 

2010; we will address this contention below in this opinion.
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In this part of plaintiff’s argument on why evidence regarding the three studies 

should not have been admitted plaintiff also contends 

[t]o the extent that the studies addressed the standard of 

care, either directly or indirectly, they were grossly 

misleading to the jury in that they suggested that the 

standard of care at the time the studies were published was 

the same as the standard of care in 2010 when Ms. Ingram 

was injured. . . . [T]he studies purport to address the issue 

of causation, by implication the studies address the 

standard of care by concluding that Early Goal Directed 

Therapy (EGDT), an element of the standard of care 

according to Plaintiff’s experts, would have been of no 

benefit to . . . [plaintiff]. . . . In short, Defendants were 

saying by these studies that the standard of care didn’t 

matter because Ms. Ingram would have had the same 

outcome if the standard of care had been followed.

Plaintiff is correct: “Defendants were saying by these studies that the standard 

of care didn’t matter because Ms. Ingram would have had the same outcome if the 

standard of care had been followed.” (Emphasis added). In other words, the three 

studies are relevant to show lack of causation no matter the timing, because they

tend to show that the results from EGDT and “standard treatment” are about the 

same. See generally ProCESS, PROMISE, ARISE. The three studies have a 

“tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without 

the evidence.” Dunn, 162 N.C. App. at 266, 591 S.E.2d at 17. This argument is 

overruled.

2. Mortality versus Morbidity
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Opinion of the Court

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Plaintiff next contends that the three studies were irrelevant because they

were comparing “mortality, not morbidity.” This assertion is simply not borne out by 

the three studies. Plaintiff argues “the studies shed no light on what likely would 

have happened to her if she had been diagnosed earlier and treated accordingly.” 

Plaintiff’s own expert testified that the three studies did not find any difference in 

mortality or morbidity between EGDT as compared to “another protocol[.]” Even 

though the primary focus of the studies may have been on mortality, all of the studies 

address both mortality and morbidity to some extent, as a consideration of morbidity 

is only even possible if patients survive and thus necessitates some consideration of 

mortality. This argument is overruled. 

3. Comparability of Patients in Studies

Plaintiff next argues “[t]he outcomes of the patients in the three studies offered 

by Defendants have no application to . . . [plaintiff] because the patients included in 

the studies were not comparable to” her. Plaintiff points out that 

[t]he health status of the patients varied from patient to 

patient and included a variety of patients, some of whom 

were older than Ms. Ingram, more advanced in sepsis than 

Ms. Ingram, younger than Ms. Ingram, and sicker than Ms. 

Ingram. There were no patients referenced in the studies 

who had come to the hospital under circumstances like Ms. 

Ingram[.]

It is probably true that no patient in any of the studies was exactly like plaintiff, but

no two patients in any studies are exactly alike. According to plaintiff, the lack of 
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Opinion of the Court

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almost identical patients would make all medical studies of no use in determining 

how to best treat other patients. Plaintiff’s contentions regarding the characteristics 

of the patients enrolled in each study do not change the relevance of the three studies 

but go only to the weight and credibility of the evidence. Every patient in each study 

was unique but the physicians conducting the studies determined that the patients 

met the enrollment criteria of the particular study. Naturally, there were differences 

in the design, endpoints, methodology, and enrollment criteria for each study. The 

expert witnesses addressed these details on both direct examination and cross 

examination. This argument is without merit. 

4. Prejudicial Effect 

Last, plaintiff argues that even if the three studies had some relevance, the

trial court should have excluded them under Rule 403 because they are misleading

and unfairly prejudicial to plaintiff. Under Rule 403, “[a]lthough relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.

Gen. Stat. § 8C-1, Rule 403 (2015). 

In general, the exclusion of evidence under the Rule 403

balancing test is within the sound discretion of the trial

court. Abuse of discretion occurs where the court’s ruling is

manifestly unsupported by reason or is so arbitrary it could

not have been the result of a reasoned decision.
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Opinion of the Court

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State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1993) (citations omitted).

Plaintiff argues the three studies were “dangerously misleading” because they 

have the “initial appearance of . . . addressing septic shock, which . . . [plaintiff] 

ultimately developed.” Again, plaintiff’s argument of unfair prejudice is premised 

upon the fact that the patients in the three studies were not “comparable to” plaintiff:

There is nothing in the studies to suggest that any of the 

patients were Ms. Ingram’s age, had a similar or 

comparable medical history, were otherwise healthy upon 

their presentation to the hospital or were turned away from 

the hospital at the earliest stages of sepsis and returned to 

the hospital on two additional occasions before any therapy 

was started.

Plaintiff’s focus on the characteristics and circumstances of each patient in a 

medical trial is misguided. Again, by plaintiff’s standard, there would be no medical 

study possible which could be admissible in a medical malpractice case; even the 

Rivers study cannot meet this standard. Some studies may have patients who more 

closely resemble plaintiff or some may have more differences, but the expert medical 

testimony is necessary to evaluate the strengths and weaknesses of each study and 

determine which studies are most applicable for a particular situation. The evidence 

here shows that the primary goal of each of the three studies was to determine the 

efficacy of the protocol for EGDT -- the very protocol plaintiff advocated as the 

standard of care for her treatment -- the three studies were relevant for this purpose, 

and again, plaintiff’s arguments go to the weight and credibility of the three studies,
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Opinion of the Court

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not unfair prejudice. The trial court did not abuse its discretion in ruling that the 

probative value of the three studies was not “outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury[.]” N.C. Gen. Stat. § 8C-1, 

Rule 403.

In addition, based upon plaintiff’s objection to use of the three studies to 

establish a standard of care, the trial court gave a limiting instruction as to the three 

studies: “Any medical literature published after February 23rd, 2010, cannot be 

considered for the purpose of establishing standard of care in this case. However, it 

may be used for other purposes in this case.” Plaintiff argues this limiting instruction 

was not sufficient, since “advising the jury not to consider the studies on the issue of 

the standard of care, it is unrealistic to assume that jurors, in a complex case as this 

one was, would be able to appropriately apply the limitation.” But we do not assume 

the jury failed to follow the instructions, despite the complexity of the case: “A jury 

is presumed to follow the court’s instructions, and we must therefore presume that 

the jury based its verdict on these instructions.” Ridley v. Wendel, ___ N.C. App. ___, 

___, 795 S.E.2d 807, 813–14 (2016) (citation, quotation marks, and brackets omitted). 

This is argument is overruled.

V. Preclusion of Dr. Snider’s Testimony Regarding Standard of Care

Plaintiff next contends that 

the trial court erred in precluding plaintiff’s expert, Dr. 

Daniel Snider, from testifying regarding the applicable
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Opinion of the Court

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standard of care for defendant emergency room physicians 

and physician assistant when plaintiff’s expert was 

engaged in a similar practice which included patients with 

the same illnesses as plaintiff and the same treatment 

modalities and procedures as those applied to plaintiff and 

which gave rise to plaintiff’s injuries.

We review the trial court’s ruling excluding Dr. Snider’s testimony as to 

standard of care for abuse of discretion:

Rule 702 of the North Carolina Rules of Evidence governs 

the admissibility of expert testimony. It states:

If scientific, technical or other specialized 

knowledge will assist the trier of fact to 

understand the evidence or to determine a 

fact in issue, a witness qualified as an expert 

by knowledge, skill, experience, training, or 

education, may testify thereto in the form of

an opinion.

Our courts construe this Rule to admit expert testimony 

when it will assist the factfinder in drawing certain 

inferences from facts, and the expert is better qualified 

than the factfinder to draw such inferences. A trial court 

is afforded wide latitude in applying Rule 702 and will be 

reversed only for an abuse of discretion.

In re Hayden, 96 N.C. App. 77, 82, 384 S.E.2d 558, 561 (1989) (citations, quotation 

marks, ellipses, and brackets omitted). 

We have reviewed the testimony at trial at length. Even if the trial court erred

by precluding a portion of Dr. Snider’s expert testimony, plaintiff cannot demonstrate 

prejudice since ultimately Dr. Snider testified regarding his opinion of how plaintiff 

should have been tested when she arrived at the emergency department and of the 

diagnosis suggested by her symptoms:
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Q. Dr. Snider, given the presentation, including the

complaints and findings of Ms. Ingram’s condition on the 

night of February 23rd when she was at the emergency 

department at Pardee, what were those signs, symptoms 

indicative of in your opinion?

MR. CURRIDEN: Objection, Your Honor.

THE COURT: Overruled.

A. In my opinion I think she was presenting with early

sepsis. And the only tests that we don’t have to back that up 

is a complete blood count, a very simple test. A test that I 

want to know the results of when I see somebody with 

abdominal cramps, vomiting, generalized pain 10 of 10, 

shortness of breath, body aches. I mean, that’s – that’s a 

constitutional whole body response, not something 

localized like a urinary tract infection, a simple urinary 

tract infection.

The only way -- well, let me rephrase that. One of 

the easiest ways to determine if this is much more serious 

than what we see on the record here is to get a CBC, a blood 

count. I would imagine everybody on the jury has had a 

blood count at some point in their life.

MR. CURRIDEN: Objection. Motion to strike, Your

Honor.

THE COURT: Overruled. The motion is denied.

A. It provides basic information including a white blood

cell count, which I mentioned is the body’s way of fighting 

off infection. When you have infection, especially an 

infection that goes systemic, your white blood cell count 

would absolutely be expected to go up.

Q. Now – I’m sorry, go ahead. Finish your answer then 

I have another question for you.

A. We don’t have a white count, a simple test. In my
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Opinion of the Court

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opinion if we had had a white count that night, it would 

have demonstrated findings very suggestive or conclusive 

for sepsis much like the white count the following day did. 

And that would have cleared the air very quickly. 

This was not a simple UTI, and she needed to be 

admitted for IV antibiotics, IV fluids. If this had been done, 

I have to say in my opinion it would have overwhelmingly 

changed the outcome here. Way more than likely than not, 

to use a legal term, Ms. Ingram would not have lost her 

fingers, not have lost her toes. I doubt much of what took 

place the following day would have ever happened if she 

had been admitted that night, received IV antibiotics and 

more aggressive IV fluid resuscitation. That was a crucial 

point in this whole course of events for Tokisha Ingram. Not 

getting a CBC that night changed the course of history for 

her.

(Emphasis added.) Plaintiff cannot demonstrate that excluding testimony by Dr. 

Snider regarding the standard of care as to diagnosis of sepsis caused her any 

prejudice, considering the evidence permitted by the trial court. Furthermore, 

plaintiff’s other expert witnesses also testified regarding the standard of care. This 

argument is overruled. 

VI. Rule 9(j) Dismissal of Nursing Care Claim

Plaintiff’s complaint alleged negligence by hospital nursing staff for failing “to

correctly triage” plaintiff and failing “to recognize the severity of . . . [plaintiff’s]

condition.” The complaint also alleged that “[t]he medical care in this case has been

reviewed by persons who are reasonably expected to qualify as expert witnesses

under Rule 702 of the Rules of Evidence and who are willing to testify that the

defendants’ care did not comply with applicable standards of care.” In Rule 9(j)
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discovery responses, plaintiff identified Dr. Sixsmith as her “reviewing expert[,]” 

although the response did not specifically identify nursing care.

In March of 2014, defendant Pardee Hospital moved to dismiss plaintiff’s claim

regarding nursing care because plaintiff’s expert witness on this issue, Dr. Diane

Sixsmith, testified in her deposition she did not believe that the nursing care fell

below the applicable standard of care. The trial court entered an order on 10 October

2014 dismissing plaintiff’s claims against defendant Pardee Hospital “to the extent

the Complaint asserts a claim for negligence based upon the theory that the nursing

staff of Defendant County Hospital Corporation, Inc., d/b/a/ Margaret R. Pardee

Memorial Hospital failed to comply with the applicable standard of care.” 

Plaintiff contends that the trial court erred by 

dismissing under Rule 9(j) the plaintiff’s claim of 

negligence against the Hospital involving nursing care 

when a qualified expert reviewed the medical care 

pursuant to Rule 9(j) and concluded that the hospital care 

fell below the standard, but did not specify the particular 

ways in which the care fell below the standard.

(Original in all caps.)

North Carolina General Statute § 1A-1, Rule 9(j) provides in relevant part:

Any complaint alleging medical malpractice by a health 

care provider pursuant to G.S. 90-21.11(2)a. in failing to 

comply with the applicable standard of care under G.S. 90-

21.12 shall be dismissed unless:

(1) The pleading specifically asserts that the medical 

care and all medical records pertaining to the 

alleged negligence that are available to the plaintiff 
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Opinion of the Court

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after reasonable inquiry have been reviewed by a 

person who is reasonably expected to qualify as an 

expert witness under Rule 702 of the Rules of 

Evidence and who is willing to testify that the 

medical care did not comply with the applicable 

standard of care[.]

N.C. Gen. Stat. §1A-1, Rule 9(j) (2015).

Compliance with Rule 9(j) is a question of law, which we review de novo:

A plaintiff's compliance with Rule 9(j) requirements clearly

presents a question of law to be decided by a court, not a 

jury. Because it is a question of law, this Court reviews a 

complaint’s compliance with Rule 9(j) de novo. When ruling 

on a motion to dismiss pursuant to Rule 9(j), a court must 

consider the facts relevant to Rule 9(j) and apply the law to 

them. A complaint facially valid under Rule 9(j) may be 

dismissed if subsequent discovery establishes that the 

certification is not supported by the facts, at least to the 

extent that the exercise of reasonable diligence would have 

led the party to the understanding that its expectation was

unreasonable. When a trial court determines a Rule 9(j) 

certification is not supported by the facts, the court must 

make written findings of fact to allow a reviewing appellate 

court to determine whether those findings are supported by 

competent evidence, whether the conclusions of law are 

supported by those findings, and, in turn, whether those 

conclusions support the trial court’s ultimate 

determination.

Estate of Wooden v. Hillcrest Convalescent Ctr., 222 N.C. App. 396, 403, 731 S.E.2d 

500, 506 (2012) (citations, quotation marks, and brackets omitted).

The trial court’s October 2014 order includes detailed findings of fact regarding 

plaintiff’s negligence claims arising from nursing care, plaintiff’s responses to 

discovery on this issue, and Dr. Sixsmith’s deposition testimony; plaintiff’s brief 
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challenges none of these findings of fact as unsupported by competent evidence, so 

they are binding upon this Court. See In re C.B., ___ N.C. App. ___, ___, 783 S.E.2d 

206, 208 (2016) (“Unchallenged findings are binding on appeal.”) 

Plaintiff argues her complaint complied with Rule 9(j) because 

[t]here is no question in this case that the Complaint 

specifically asserts that the medical care at issue in this 

case was reviewed by a person who was reasonably 

expected to qualify as an expert witness under Rule 702 of 

the Rules of Evidence and who was willing to testify that 

the medical care did not comply with the applicable

standard of care. 

Plaintiff contends that she reasonably expected Dr. Sixsmith, her identified expert, 

to testify regarding nursing care. The trial court’s findings of fact quoted Dr. 

Sixsmith’s deposition where she stated that she had not believed nor would she testify 

that the nursing care provided by defendant Pardee Hospital fell below the standard 

of care. “[I]t is also now well established that even when a complaint facially complies 

with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery 

subsequently establishes that the statement is not supported by the facts, then 

dismissal is likewise appropriate.” Ford v. McCain, 192 N.C. App. 667, 672, 666 

S.E.2d 153, 157 (2008). 

Plaintiff further contends that even if Dr. Sixsmith was unwilling to testify 

Dr. David Milzman, Dr. Daniel Abbott and Dr. Daniel 

Snider were all willing to testify at trial that the nursing 

care fell below standard. Their willingness to testify was 

brought to the attention of the trial court before the trial 
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court dismissed the action against Defendant Pardee as to 

nursing care. The particulars of the criticisms held by each 

of these witnesses, all of whom testified at trial, were 

contained in their respective depositions.

But plaintiff failed to identify Dr. Milzman, Dr. Abbott, and Dr. Snider as experts 

who would offer opinions regarding nursing care in response to discovery. In 

addition, plaintiff has failed to direct us to any place in the 678 page record, five 

depositions, or 2,930 pages of trial transcript where we might find verification of 

plaintiff’s assertion that other experts were identified regarding nursing care before 

the trial court’s May 2014 hearing on this issue to testify regarding nursing care; 

plaintiff’s argument section on this issue contains no specific reference to the evidence 

before us. Therefore, the trial court’s unchallenged findings of fact support its 

conclusion of law that plaintiff’s “claim for negligence based upon the theory that the 

nursing staff of” defendant Pardee Hospital did not comply with Rule 9(j) and should 

therefore be dismissed. This argument is overruled.

VII. Exclusion of Evidence of Morning Visit to the Hospital

Last, plaintiff argues that the trial court erred in allowing defendant’s motion 

in limine and thus “limiting and excluding testimony from plaintiff and plaintiff’s 

witnesses regarding plaintiff’s visit to defendant Pardee Hospital on the morning of 

24 February 2010.” (Original in all caps.) 

We review a trial court’s rulings on motions in 

limine and on the admission of evidence for an abuse of 

discretion. This Court will find an abuse of discretion only 
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where a trial court’s ruling is manifestly unsupported by 

reason or is so arbitrary that it could not have been the 

result of a reasoned decision.

State v. Hernendez, 184 N.C. App. 344, 348, 646 S.E.2d 579, 582 (2007) (citations and 

quotation marks omitted).

Defendant Pardee Hospital filed a motion in limine seeking to prevent plaintiff 

from testifying about a visit to the hospital on the morning of 24 February 2010. 

According to the defendant’s argument on the motion in limine11, plaintiff testified in 

her deposition she returned to the hospital on the morning of 24 February 2010:

Ms. Ingram recalled in her deposition, and there’s no 

allegation about this in the complaint either, but during 

her deposition she said, “Well, I do remember coming to the 

hospital on the morning of the 24th.” Her recollection or 

best timeframe was about 10:00 o’clock or 10:30 the 

morning of the 24th. And that she was basically taken 

back to a treatment room and then told -- she overheard 

someone say on the other side of the curtain or wall, quote, 

“she is just a popper.”12 And then someone, a nurse, who 

she describes as a nurse, came back into the room and told 

her “you just need to go home and give the medicine time 

to work.” There’s no medical records, there’s no other 

evidence of any visit on the morning of the 24th.

Defendant then argued:

Ms. Ingram’s testimony is that she interacted with 

the nursing staff. And as we have established in the first 

motion in limine, which is that the Hospital nursing staff 

 

11 Plaintiff did not include her deposition in our record, so we will quote defendants’ counsel’s 

argument on this issue.

12 According to plaintiff’s brief, she understood the term “popper” “to mean that she was a pill 

popper and was seeking medication and treatment.”
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as a theory of liability cannot exist in light of the Court’s 

order from October 2014 dismissing the complaint, and as 

plaintiff's counsel has already indicated the only issue they 

intend to submit to the jury as to the Hospital’s liability is 

the issue of apparent agency for Boleman, Davis, Dr. 

Ramsak, and perhaps Ursin, understanding we left that 

issue open. This testimony about a visit on the morning the 

24th has no relevance to any claim in the case and, 

therefore, should be excluded.

The trial court allowed the motion in limine, with a qualification that it may 

reconsider depending upon the evidence presented during the trial: 

Well, I’m going to allow that motion. But if you believe the 

door was opened by that argument she wasn’t as -- the 

evidence might tend to show she wasn’t as sick as she 

claimed or something similar, then I will reconsider that 

then. And I think I would probably allow that. Although, 

most likely not the comment that was overheard about 

being a popper. 

At trial, plaintiff testified about her return to the hospital on the morning of

24 February 2010:

A. On the sheet it said that, at the bottom of the sheet,

I remember it said something about if you had these 

symptoms to come back. And then I was feeling really bad, 

so I went back that morning to the hospital.

Q. Okay. Did you get any treatment when you got back?

A. No, sir.

MR. JACKSON: Objection.

THE COURT: Overruled.

Q. What -- what happened when you went back? When 
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I say what happened, did you stay at the hospital, did you 

get treatment or what? Tell us about that.

A. When I went back to the hospital and I had 

conversation with, I assume, the receptionist, and what I 

remember is someone, I don’t remember who it was, telling 

me that I needed to give the medication time to work.

MR. JACKSON: Objection.

MR. CURRIDEN: We object.

THE COURT: Overruled.

Q. I’m sorry. There were some interruptions there. 

Could you repeat that? Somebody said what?

A. That I needed to give the medication time -- that I

needed to go back home and give the medication time to 

work.

MR. JACKSON: Objection.

THE COURT: Mr. Ferguson, I want to say 

something to the jury.

MR. FERGUSON: Yes, sir.

The trial court then gave a limiting instruction to the jury, in accord with its ruling 

on defendants’ motion in limine: 

THE COURT: Members of the jury, as I said

yesterday, there’s no claim or allegation that anyone at the 

Hospital did anything wrong or negligent regarding this 

morning visit. Nobody, no nurse, no doctor or physician 

assistant. So when you get to the point of deciding whether 

negligence was committed, this has nothing to do with it. 

Please go ahead, Mr. Ferguson.
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Plaintiff then resumed her testimony:

Q. So what did you do after this person told you to go

back home and give the medication time to work?

A. I went back home and laid down.

Q. How did you feel when you got back home?

A. I laid there for a little while, and I may have made

some phone calls or something. I don’t quite remember. But

after awhile I went back to the hospital. My auntie told me 

that I needed to go back.

Plaintiff argues that her 

testimony of the details of this visit would have shed light 

on how sick the Plaintiff was and her efforts to get help as 

soon as possible. The evidence would have further shown 

that at the time the Hospital did not take her complaints 

seriously and demonstrated a reluctance to provide help.

But the testimony plaintiff actually gave showed exactly this – “how sick” she was, 

“her efforts to get help as soon as possible[,]” and “the Hospital did not take her 

complaints seriously and demonstrated a reluctance to provide help.” 

Furthermore, plaintiff made no proffer of additional evidence she contends the 

trial court should have allowed her to present, so she has not preserved this argument

for appellate review. See generally State v. Reaves, 196 N.C. App. 683, 687, 676 S.E.2d 

74, 77 (2009) (“Likewise, a party objecting to the grant of a motion in limine must 

attempt to offer the evidence at trial to properly preserve the objection for appellate 

review.”) The only “limitation” or “exclusion” the trial court applied to plaintiff’s 
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testimony about her return visit to the hospital on the morning of 24 February 2010 

was to instruct the jury that plaintiff had no claim for medical negligence arising from 

the alleged conduct of hospital staff from that morning, and, as discussed above, the 

trial court properly dismissed that claim. The trial court did not abuse its discretion 

by instructing the jury as to the limitation on the purpose of plaintiff’s testimony. 

This argument is overruled.

VIII. Conclusion

For the foregoing reasons, we affirm.

AFFIRMED.

Chief Judge MCGEE and Judge MURPHY concur.