IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 16

- 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 plaintiff

appellant.
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, Starn es and Davis, P.A., by Emma J. Hodson , for defendant

- appellees Ryan Christopher Davis, M.D., Robert C. Boleman, M.D., and Henders onville 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.I NGRAM V

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Opinion of the Court

- 2

- P laintiff sued defendants for medical malpractice arising out of the care the y 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

.
M any 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 medica l 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 emergenc y 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 thatI NGRAM V

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Opinion of the Court

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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 bloo d pressure was 135/83.

Within a bout 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 pai n was mild, even though she had

identified her pain as l evel 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

s urgeries, although plaintiff “had had her tubes tied

. ” Defendant Davis did a physical
examination of plaintif f 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 ; h e 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 f luids

. 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 creat inine was slightly elevated and her urineI NGRAM V

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Opinion of the Court

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- showed a trace of blood and “a little bit o f 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 Da vis returned to see plaintiff and reexamined her,
noting that she felt better. Defendant Davis gave plaintiff an oral antibiotic,
Levaquin 500 mil ligrams, and Vicodin for pain. Defendant Davis diagnosed plaintiff
with vomiting and a urinary tract infecti on . 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 “ig nored 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 f requent urination, urgency, or p ain 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

infecti on.”

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
rig ht side was hurting so much by performing an ultrasound or a CAT scan. InI NGRAM V

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Opinion of the Court

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- addition, Defendant Davis should have “ d one a blood count” which may have
indicated a high white blood cell count as based on the tests done, the elevated

creatinine level could ind icate kidney injury. Dr. Milzman ultimately testified that

D efendant Davis failed to provide proper care by failing to “recognize the initial and
progressive sev erity” of plaintiff’s condition, failing “to properly evaluate changing

values in her conditio n, 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 dischar ged.

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 , b ut instead of having a physician see
plaintiff, hospital personnel sent her to the “walk

- in side” of the ER whe re 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, p laintiff 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.I NGRAM V

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Opinion of the Court

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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; h e r pain level

was still 10 out of 10. Mr. Ursin , a physician assis tant, saw plaintiff at about 4:3 0

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; s he 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
( alt hough 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 , pla intiff’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] l ow blood count goes along with being severely infected in some
patients.”I NGRAM V

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Opinion of the Court

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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; h er 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 th at 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 o n duty at the time

.
A t 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. D efendant Boleman ordered more antibiotics and started
dopamine, a medication to help raise blood pressure. At this point, plaintiff started

to re ceive critical care. Over the next hour , plaintiff received additional medication
to raise her blood pressure, fluid, and antibiotics

. At 9:01 p.m., defe ndant 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 give n a breathing tube
and placed on a ventilator; hospital person ne l 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 effortI NGRAM V

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Opinion of the Court

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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 sep sis, 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 hi gh heart r ate, 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 re sponse syndrome. And then there’ s sepsis, a source of infecti on plus these criteria. So that’s sepsis. And then there’ s seve re sepsis which is you have the infection with all of these markers, plu s 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 hap pens 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, w here 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 h e did not consult with the ICU
and ask that plaintiff be admitted. Dr. Milzman also te stified that defendants had
missed the opportunities to intervene the night before or much earlier on 24 FebruaryI NGRAM V

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Opinion of the Court

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- after plaintiff returned to the ER. “[I]f y ou can intervene and prevent the patient
from going into shock, you have a much better chance at survival.”

C. Treatment at Miss i on 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 h er 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 prov iding care and this resulted in her devastating
injuries. D efendants all fi led answers, denying t he substantive allegations.

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

2 Plaintiff did not bring any claims against Mission Hospital.I NGRAM V

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Opinion of the Court

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- discuss them all. In March of 2013, d efendant Pardee Hospital move d to dismiss
“[p]laintiff’s complaint to the extent th e 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 Defen dant 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 201 6 , 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
j udgment determining plaintiff should “recover not h ing” and her action was
dismissed with prejudice. Plaintiff ap peal s both the October 2014 order and the
February 2016 judgment.

III. Medical Malpractice Claims

In Smith v. Whitmer , this C ourt summarized the elements of a medical
malpractice claim and how the plaintiff must prove those elements :

In a medical malpractice c laim, a plaintiff must show (1) t he applicable standard of care; (2) a breach ofI NGRAM V

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Opinion of the Court

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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 dama ges resulting to the pl aintiff. 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 pr ofessional 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 acti on. 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 e stablished 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.I NGRAM V

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Opinion of the Court

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- 159 N.C. App. 192, 195

– 96, 582 S.E.2d 669, 671

– 72 (2003) (citations a nd 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 a ddressed
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 ou tweighed
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 themse lv es for purposes of ruling on p laintiff’s evidentiary objections, so we will consider this issue based upon the same information.I NGRAM V

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Opinion of the Court

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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 ARISE 6
(collec tively “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 re garding 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 s tudies on direct examination. According to defendants’ argument,
plaintiff c ould 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, w e

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 o f 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, Goal

Directed 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 , Octob er 9, 2014 (“ARISE”).I NGRAM V

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Opinion of the Court

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- the three studies over plaintiff’s objection, she was not required to avoid ment ion of

the studies but was permitted to attempt to limit or avoid any prejudice from the
evidence without losing the bene fit of the continuing objection:

The well established rule that when incompetent evidence is admitted over objection, but the same e vidence 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. , 19 3 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’ testimon ies

.
See id. Because plaintiff properly preserved her continuing objection, her late r 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”) andI NGRAM V

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Opinion of the Court

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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 pat ients
presenting with sepsis; t his 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 cl inicians’ 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 gr oup received the EGDT protocol. See id.

On e of plaintiff’s expert witnesses, 9 Dr. Dani e l Snider, explained EGDT and

the results of the Rivers study in his testimony. All of the p atients present ed with
sepsis , and one group received the EGDT protocol

-- “from the beginning, starts IV
fluid, start s ant ibiotics, 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

- Direc ted The rapy 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 in ternal 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 physici ans, 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 s ection.I NGRAM V

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Opinion of the Court

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- “standard therapy” at th at 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 pres sors, dopamine or Levophed which is a brand name for norepinephrine which is a precursor to adrenaline. Probably more than you need know. Goal

Directed, by trying to achieve these goals, good blood pressure, good fluid resuscitation, antibiotics, those ar e 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 goal

directed therapy? He found that in six hours they had a lower heart rate, they had a higher bl ood 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 certainlyI NGRAM V

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Opinion of the Court

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- never been published in the New England Journal, and I

wo uld 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 d octors, 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 e ven 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, organ

d ysfunction 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 bene fits. 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 oxyg en delivery and oxygen demand.I NGRAM V

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Opinion of the Court

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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; a ll note some controversy regarding the efficacy of the
EGDT protocol. As described by th e 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 th ose 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 car e. We conducted a trial to determine whether these findings were generalizable and whether all aspects of the protocol were necessary.

Pro CESS at 1683

. The ProCESS study was done from 2008 to 2013 in 31 United State s emergency
departments with 1 , 341 pa tients enrolled. See id. at 1683, 1686. ProCESS considered
differences in 90 day mortality, 1

- year mortality, an d “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 toI NGRAM V

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Opinion of the Court

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- 2014, with 1 , 260 patients enrolled. ProMISE at 1 , 3 . ProMISE conclude s 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.

T he ARISE stu dy 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 co nducted from 2008 until 2014 at 51 hospitals in

several count r ies, 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 Surv iving Sepsis Campaign guidelines, and a number of nonrandomized studies showed a survival benefit with bundle

- bas ed 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 externa l 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 depar tment with early septic shock.” Id.

at 10.I NGRAM V

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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 prob able 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 greatI NGRAM V

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Opinion of the Court

- 2 1

- 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 fo r treatment of sepsis
in 2010. In other words, plaintiff contends the three studies are not relevant to the
issues in dispute because they were publis hed 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.I NGRAM V

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Opinion of the Court

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- In this part of plaintiff’s a rgument 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 stan dard 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 s tandard 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 ha ve 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 mo re 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

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Opinion of the Court

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- Plaintiff next contends that the three studies were irrelevant because the y

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.”

Plainti ff’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, a ll of the studies

address bo th 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 Patient s 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 t he 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 s tudies who had come to the hospital under circumstances like Ms. Ingram [.]
It is probably true that n o patient in any of the studies was exactly like plaintiff , but
no two patients in any studies are exactly alike . A ccording to plaintiff , the lack ofI NGRAM V

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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 studi es but go only to the weight and credibility of the evidence. E very 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 differe nces 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, p laintiff argues that even if the three studies had some relevance, the

trial court s hould have excluded them under R ule 403 because they are misleading

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

may be excluded i f 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. § 8 C

- 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 di scretion 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.I NGRAM V

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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 st udies to suggest that any of the patients were Ms. I ngram’ 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, b y plaintiff’s standard, there would be no medical
study pos sible which could be admissible in a medical malpractice case ; e ve n 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 eviden ce 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,I NGRAM V

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Opinion of the Court

- 26

- 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 p laintiff’s objection to use of the three studies to
establish a standard of care, the trial court gave a limiting instruction as to t he three

studies: “ Any medical lit erature 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 in struction
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, despi te 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. Wende l , ___ 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 T estimony Regarding Standard of Care

Plaintiff next contends that
the trial court erred in precluding plaintiff’s expert, Dr. Daniel Snider, from testifying regarding the applicableI NGRAM V

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Opinion of the Court

- 27

- standard of care for defendant emergency room physicians and physician assistant when plaintiff’s expert was engaged in a similar practice w hich 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 t he 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. E ven if the trial court erred
by precluding a portion of Dr. Snider’s expert test imony, plaintiff cannot demonstrate
prejudice since ultimately Dr. Snider test ifie d regarding his opinion of how p laintiff

should have been tested when she arrived at the emergency department and of the
diagnosis suggested by her symptoms :I NGRAM V

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Opinion of the Court

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- Q. Dr. Snider, g iven the presentation, including the compla ints 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 in fection. T he 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 infectio n. 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 myI NGRAM V

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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. Th is 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 w ould 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 p oint 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 diagno sis 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 w itnesses

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

defendants’ care did not comply with applicable standards of care.” In Rule 9(j)I NGRAM V

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Opinion of the Court

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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 Corporati on, 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 involvi ng nursing care when a qualified expert reviewed the m edical 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 th e 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. 9 0

- 2 1.12 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 plaintiffI NGRAM V

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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

co mplaint’ 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) an d 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 a re supported by those findings, and , in turn, whether those

conc lusions support the trial court’ s ultimate determination.
Estate of Wooden v. H illcrest Convalescent Ctr. , 222 N.C. App. 396, 4 03, 731 S.E.2d
500, 506 (2012) (citations , quotation marks , and brackets omitted).

T he trial court’s October 2014 order includes detailed findings of fact regarding
plaintiff’s negligence claims arising from nursing care , p laintiff’s responses to
discovery on this issue, and Dr. Six smith’s deposition testimony; p lainti ff’s briefI NGRAM V

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Opinion of the Court

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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 R ule 702 of the Rules of Evidence and who was willing to testify that the medical care did not comply with th e applicable standard of care

. Plaintiff contends that she reasonably expected Dr. Sixsmith, her identified expert,
to testify rega rding 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

tha t 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

dism issal is likewise approp riate.” Ford v. McCain , 192 N.C. App. 667, 6 72, 666
S.E.2d 153, 157 (2008).

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

D r. David Milzman, Dr. Daniel Abbott and Dr. Daniel Snider were all willing to testify at trial th at the nursing care fell below standard. Their willingness to testify was brought to the attention of the trial court before the trialI NGRAM V

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Opinion of the Court

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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 discove ry. In

addition , plaintiff has failed to direct us to any place in the 6 78 page record, five
depositions, or 2,930 pages of trial transcript where we might find verification of

p laintiff’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, t he trial court’s unchalleng ed 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, p laintiff 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 m orning 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 onl yI NGRAM V

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Opinion of the Court

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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 motio n in limine seeking to prevent p laintiff
from testifying about a visit to the hospital on the morning of 24 February 2010.
According to the defendant’s argument o n the motion in limine 11 , 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 d uring her deposition she said, “ Well, I do remember coming to the hospi tal on the morning of the 24th.” Her recollection or b est 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 cur tain or wall, quote, “she is just a popper.” 12 And then someone, a nurse, who she describes as a nurse, came b ack into the room and told her “ yo u 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 a s 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 medic ation and treatment.”I NGRAM V

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Opinion of the Court

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- as a theory of liability can not exist in light of the Court’ s order from October 2014 dismissing the complaint, and as plaintiff's counsel has already indicated t he 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 ha s 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 m otion. But if you believe the door was o pened 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,

mos t 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

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Opinion of the Court

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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

re member 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 repea t 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. Ple ase go ahead, Mr. Ferguson.I NGRAM V

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Opinion of the Court

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- Plaint iff 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 argu es that her
testimony of the details of th is 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 provid e 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, p laintiff 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 ’sI NGRAM V

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Opinion of the Court

- 38

- 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, w e affirm.

AFFIRMED.

Ch ief Judge MCGEE and Judge MURPHY concur.