IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA 1 9

- 354 Filed: 16 June 2020 Mecklenburg County, No. 11 CVS 18175 EDWARD G. CONNETTE, as guardian ad litem for AMAYA GULLATTE, a M inor, and ANDREA HOPPER, individually a n d as parent of AMAYA GULLATTE, a M inor , Plaintiff s , v. THE CHARLOTTE

- MECKLENBURG HOSPITAL AUTHORITY d/b/a CAROLINAS HEALTHCARE SYSTEM , and/or THE CHARLOTTE

- MECKLENBURG HOSPITAL AUTHORITY d/b/a CAROLINAS MEDICAL CENTER , and/ or THE CHARLOTTE

MECKLENBURG HOSPITAL AUTHORITY d/b/a LEVINE CHILDREN’S HOSPITAL, and GUS C. VANSOESTBERGEN, CRNA , Defendant s . Appeal by plaintiffs from judgment entered 20 August 2018 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 October 2019

. Edwards Kirby, L

. L
. P
. , by Mary Kathryn Kurth and John R. Edwards , for plaintiffs

- appellants. Gallivan, White & Boyd, P.A., b y Janice Holmes and Christopher M. Kelly, for defendants

- ap

pellees.
DIETZ , Judge. Nearly a century ago, our Supreme Court rejected the notion that nurses can be liable for medical malpractice based on their diagnosis and treatment of patients

. The Court reasoned that nurse s “are not supposed to be experts in the technique of diagnosis or the mechanics of treatment.” Byrd v. Marion Gen. Hosp. , 202 N.C. 337,C ONNETTE V . T HE C HARLOTTE
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- 162 S.E. 738, 740 (1932). Medicine is quite different today than in the early twentieth century and so, too, is the knowledge and skill of nurses in their varying fields and specializations. Plaintiff s Edward Connette and Andrea Hopper argue that the nurse anesthetist in this case participated in the treatment plan for Hopper’s young daughter to such a degree, and with such an exerci se of expertise and discretion, that the nurse effectively was treating the patient and thus should be subject to legal claims for medical malpractice

. We must reject this argument. Had Byrd left room for evolving standards as the field of medicine changed, this may be a different case. But the Byrd court’s holding is categorical , and it is controlling here. If this Court were free to reject Supreme Court precedent that we felt did not age we ll, it would destabilize our position as an intermediate appellate court. On issues where our Supreme Court already has spoken, we do not make law, we follow it. Plaintiffs also challenge a series of discretionary decisions by the trial court during the tr ial. As explained below, under the limited standard of review we apply to these arguments , the trial court acted well within its sound discretion. Accordingly,

we find no error in the trial court’s judgment. Facts and Procedural History In the fall of 2010 , Andrea Hopper took her three

- year - old daughter Amaya t oC ONNETTE V . T HE C HARLOTTE
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- an emergency room for an upper respiratory infection and an ear infection. While treating Amaya, medical professionals discovered that her heartrate was higher than normal , or “tachycardic , ” so they referred Amaya to a cardiologist , Dr. Nicholas B. Sliz , at a hospital affiliated with Defendant Charlotte

- Mecklenburg Hospital Authority

. Dr . Sliz determined that Amaya’s increased heart rate caused her heart to develop cardiomyopathy, a disease which ma kes it hard for the heart to pump blood to the body and enlarges the heart

. Because Amaya’s cardiac output was severely depressed , Dr. Sliz recommended she undergo an “ablation procedure” to fix her irregular heart rhythm. Dr. Sliz was confident that the ablation procedure would be

a success and scheduled a surgery for Amaya

. Dr. James M. Doyle, an anesthesiologist, and Defendant Gus C. VanSoestbergen, a certified registered nurse anesthetist , administer ed Amaya ’s anesthesia. Doyle and VanSoestbergen deci ded to induce Amaya with a mask to avoid th e stress that might be caused by pricking her with a needle and inducing her intravenously. The two also chose to induce her with “sevoflurane,” an anesthetic that

can cause one’s blood pressure to drop and cardia c output to decrease. Soon after the anesthesia team administrated the sevoflurane, Amaya went into cardiac arrest. After about thirteen minutes, Amaya’s treatment team was ableC ONNETTE V . T HE C HARLOTTE
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- to revive her , but the oxygen deprivation left her with permanent brain damag e, cerebral palsy , and profound developmental delay. In 2011, Plaintiffs filed a complaint against various medical professionals involved in Amaya’s treatment. The case went to trial in 2015. T he jury failed to reach a verdict on the claims against Doyle and VanSoestbergen in this first trial

. Before the second trial, Doyle and his anesthesiology practice settled the claims against them

. Thus, the only remaining parties in the second trial were VanSoestbergen , who is a certified registered nurse anesthetis t, and the hospital that employed VanSoestbergen

. T he second trial began in 2018
. Plaintiffs a sserted a number of negligence

based claims, including a claim t hat VanSoestbergen breached the applicable standard of care by agreeing , during the anesthesia pl anning stage, to induce Amaya with sevoflurane using the mask induction procedure

. Plaintiffs asserted that certified registered nurse anesthetist s are highly trained and have greater skills and treatment discretion than regular nurses . Moreover, they asse rted, nurse anesthetist s often use those skills to operate outside the supervision of an anesthesiologist. Plaintiffs also argued that VanSoestbergen was even more specialized than an ordinary nurse anesthetist because he belonged to the hospital’s “Baby Heart Team” that focused on care for young children. T he trial court refused to admit Plaintiffs’ evidence of this claim . The courtC ONNETTE V . T HE C HARLOTTE
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- determined that this theory of liability was precluded by Daniels v. Durham County Hosp. Corp

. , 171 N.C. App. 535, 615 S.E. 2d 60 (2005) , a decision that analyzed and applied the Supreme Court’s holding in Byrd v. Marion Gen. Hosp ., 202 N.C. 337, 162 S.E. 738 (1932)

. The trial court concluded that a nurse may be liable for improperly administering a drug, but not for breachin g a duty of care for planning the anesthesia procedure and selecting the appropriate technique or drug protocol. Thus, the trial court excluded all expert testimony suggesting that VanSoestbergen breached a standard of care by agreeing to mask inhalation w ith sevofluran e. The trial court submitted Plaintiffs’ other claims against VanSoestbergen to the jury. The jury found VanSoestbergen not liable for Amaya ’s injuries . Plaintiffs timely appealed. Analysis I. Nurse’s liability for treatment decisions Plaintiffs first argue that the trial court erred by excluding evidence that VanSoestbergen “shared responsibility with Dr. Doyle for both planning and administering anesthesia to Amaya.” Plaintiffs contend that a certified registered nurse anesthetist is “not a mere appendage of the anesthesiologist” but instead an “independent collaborator” who owes a duty of care to the patient when participating in the creation of a patient’s treatment plan

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- The trial court rejected this argument after concluding that i t was barred by settled precedent. As explained below, this Court, too, is bound by that precedent and we therefore find no error in the trial court’s ruling

. Nearly a century ago, a plaintiff sought to hold a nurse liable for decisions concerning diagnos is and treatment. Byrd v. Marion Gen. Hosp ., 202 N.C. 337, 162 S.E. 738, 740 (1932 ). Specifically, t he plaintiff was suffering from convulsions and alleged that she was severely burned after the nurse placed her in a “sweat cabinet” or “sweating machine” a s part of her treatment. Id

. Our Supreme Court declined to recognize the plaintiff’s legal claim, explaining that “nurses, in the discharge of their duties, must obey and diligently execute the orders of the physician or surgeon in charge of the patient

. ” Id

. The Court held that the “ law contemplates that the physician is solely responsible for the diagnosis and treatment of his patient. Nurses are not supposed to be experts in the technique of diagnosis or the mechanics of treatment.” Id. Since Byrd , this Court repeatedly has rejected legal theories and claims based on nurses’ decisions concerning diagnosis and treatment of patients. In 19 85, for example, this Court cited Byrd to reject a claim that a nurse owed a separate duty of care to the patient b ecause any “ disagreement or contrary recommendation she may have had as to the treatment prescribed would have necessarily been premised on aC ONNETTE V . T HE C HARLOTTE
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- separate diagnosis, which she was not qualified to render .” Paris v. Michael Kreitz, Jr., P.A ., 75 N.C. App. 365, 381, 331 S.E.2d 234, 245 (1985). Similarly, in 2005, this Court rejected a theory that a registered nurse was part of the “delivery team” in obstetrics and engaged in a “collaborative process with joint responsibility.” Daniels v. Durham County Hosp. Corp. , 171 N.C. App. 535, 539 , 615 S.E.2d 60, 63 (2005 ). We observed that, although “medical practices, standards, and expectations have certainly changed since 1932 and even since 1987, this Court is not free to alter the standard set forth in Byrd. ” Id. We therefore affirmed summary judgment in favor of the nurse because “ plaintiffs present a medical dispute regarding diagnosis and treatment that nurses are not qualified to resolve .” Id. at 540, 615 S.E.2d at 63. In short, as this Court repeatedly has held i n the last few decades, trial courts (and this Court) remain bound by Byrd , despite the many changes in the field of medicine since the 1930s. Thus, the trial court properly determined that Plaintiffs’ claims based on VanSoestbergen ’s participation in developing an anesthesia plan for Amaya are barred by Supreme Court precedent. We acknowledge that Plaintiffs have presented many detailed policy arguments for why the time has come to depart from Byrd

. W e lack the authority to consider those arguments

. We are “an error

- correcting body, not a policy

- making or law

- making one.” Davis v. Craven C ounty ABC Bd. , 259 N.C. App. 45, 48 , 814 S.E.2dC ONNETTE V . T HE C HARLOTTE
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- 602, 605 (2018). And, equally important , Byrd is a Supreme Court opinion . W e have no authority to modify Byrd ’s com prehensive holding simply because times have changed. Only the Supreme Court can do that. State v. Scott , 180 N.C. App. 462, 465, 637 S.E.2d 292, 294 (2006)

. Thus, we decline to address Plaintiffs’ policy arguments individually, but recognize that they were presented to us and thus are preserved should Plaintiffs seek further appellate review. II. Video e vidence Next, Plaintiffs argue that the trial court erred by permitting Defendants to show the jury an illustrative video depicting mask induction anesthesia. Plaintiffs contend that the video was inadmissible and unduly prejudicial. Before we address Plaintiffs’ specific evidentiary arguments, we must first addr ess a framing issue concerning the illustrative nature of the exhibit

. The determination of whether an exhibit is sufficiently illustrative “ is a matter within the sound discretion of the trial judge .” Thomas v. Dixson , 88 N.C. App. 337, 345, 363 S.E.2d 20 9, 214 (1988)

. Here, Plaintiffs characterize the video as one used to illustrate Amaya’s induction, similar to how one might use an illustrative video to reconstruct the scene of an accident. They contend that, viewed in this way, the exhibit was not admis sible for illustrative purposes because the child in the video was struggling and had to beC ONNETTE V . T HE C HARLOTTE
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- restrained, while undisputed evidence showed Amaya was calm and cooperative during the procedure. The flaw in this argument is that both the Defendant s and the trial court emphasized that this was not the purpose of the illustration. During this portion of Defendants’ case, their expert was addressing Plaintiffs’ theory t hat the induction should have proceeded more slowly. Defendants’ expert sought to ex plain why the anesthesiology team tried to move Amaya more quickly to another “stage” in the process because young children, during this particular stage o f induction, can become excitable and combative. So the purpose of the video was not to illustrate s omething that happened to Amaya, but rather to illustrate a hypothetical scenario

— one which the expert was describing in detail in his testimony

— that Amaya’s anesthesiology team sought to avoid. Defendants were careful to point this out when questioning th e expert: “Dr. Yasser, I want to be real clear about this. We’re not showing a picture of what happened to Amaya or representing that this is Amaya. This is just an example of a child going through stage two a nd an induction, sevo induction so the Ladies a nd Gentlemen of the Jury can understand your testimony?” The expert responded , “Yes.” Similarly, t he trial court emphasized this point to the jury, explaining that the video was “n ot to illustrate what transpired with Amaya, but to help you understandC ONNETTE V . T HE C HARLOTTE
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- some thing that can occur in the inhalation process to help you understand th is witness’s testimony about how an anesthesiologist, CRNAs do what they do.” Thus, in our analysis of the admissibility and potential prejudice of the challenged video, we focus our r eview on the video’s use as an illustration of the expert’s hypothetical scenario, not as an illustration of events that actually occurred during Amaya’s induction. We begin with Plaintiffs’ challenge based on lack of foundation. T o lay the foundation for this type of illustrative exhibit, the proponent must demonstrate that the exhibit is a “ fair and accurate portrayal ” of the thing it seeks to illustrate. Id

. at 344, 363 S.E.2d at 214
. If there is conflicting evidence concerning the accuracy of the illustrative exhibit, the determination of whether to admit the exhibit “ is a matter within the sound discretion of the trial judge .” Id

. at 345, 363 S.E.2d at 214. Here, Defendants’ expert testified that he had performed “tens of thousands” of similar inhalation inductions on children and saw children induced using sevoflurane every day. He further testified that he had viewed the video and that, based on his experience, the video illustrat ed “a child who is getting a normal mask induction and this would be on any kid on any day in any operating room in the United States.” Finally, he testified that the video would assist him “to illustrate or to help explain” to the jury his testimony about the type of chaotic reactions that children can have during this stage of sevoflurane induction.C ONNETTE V . T HE C HARLOTTE
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- The trial court was well within its sound discretion to admit the exhibit based on this foundational testimony. Plaintiffs argue that the expert “did not kno w when or where [ the video ] was recorded” and “knew nothing about the child” in the video. But this is irrelevant. It was not even necessary that the video be real

— it could have been an animated video, or a photo

- realistic one created with computer

- generat ed effects. What matters for purposes of foundation is that the expert establish ed that the video was a fair and accurate representation of a procedure he was describing, based on his experience with “tens of thousands” of the same procedure on other children. Accordingly, the trial court did not abuse its discretion in this admissibility analysis. Plaintiffs next argue that the video should have been excluded under Rule 403 of the Rules of Evidence because its probative val ue was “substantially outweighed by the danger of unfair prejudice.” They contend that the “obvious purpose” of the video was to in cite anxiety and emotion in the jury and exaggerate the difficulty of VanSoestbergen’s work as a nurse anesthetist. Rule 403 permits a trial court to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” State v. Triplett , 368 N.C. 172, 178, 775 S.E.2d 805, 808

– 09 (2015)

. We revi ew a trial court’s Rule 403 analysis for abuse of discretion. Id. at 178, 775 S.E.2d at 809.C ONNETTE V . T HE C HARLOTTE
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- Here, the challenged video had probative value

— it provided a visual perspective of a complicated medical procedure described by an expert. Moreover, the trial court took steps to minimize the risk of any prejudicial effect from the video. Although t here were differences between the video and Amaya’s circumstances, the trial court a ddressed those by informing the jury that it was to consider the video solely for illustrative purposes and “not to illustrate what transpired with Amay a, but to help you understand something that can occur in the inhalation process.” In short, the trial court properly determined that the risk of potential prejudice or confusion was no t so great as to substantially outweigh the probative value of this illustrative exhibit. T he trial court’s decision to admit this evidence was a reasoned one and not arbitrary. We therefore find no abuse of discretion in the admission of this illustrative video. III. Use of short
- hand references to “Gus” and “Nurse Gus” at trial Plaintiffs next argue that the trial court erred by permitting defense counsel to refer to VanSoestbergen as “Gus” and “Nurse Gus ” during trial. Plaintiffs argue that this trial strategy, contrasted with references to physicians using the prefix “Doctor,” downplayed VanSoestbergen ’s authority as a certified registered nurse anesthetist and caused the jury to view Gus as someone with less professio nal skill and authority than he actually possessed

. “The conduct of a trial is left to the sound discretion of the trial judge, andC ONNETTE V . T HE C HARLOTTE
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- absent abuse of discretion, will not be disturbed on appeal.” Gray v. Allen , 197 N.C. App. 349, 352, 677 S.E.2d 862, 865 (20 09)

. Under this narrow standard of review , we cannot find reversible error unless the trial court’s ruling “was so arbitrary that it could not have been the result of a reasoned decision.” Kearney v. Bolling , 242 N.C. App. 67, 72, 774 S.E.2d 841, 846 (2015)

. The trial court’s decision to permit VanSoestbergen to be referred to as “Nurse Gus” was well within the court’s broad discretion. To be sure, the defense may indeed have used the references to “Nurse Gus” in part as a trial strategy. But, to be fa ir, Gus VanSoestbergen’s last name is a tongue
- twister for some, and even he testified that people at work often called him Gus for that reason. Moreover, Plaintiffs’ counsel

c ould

— and did

— emphasize VanSoestbergen’s knowledge and expertise to the jury, whi ch diminished any risk of prejudice from the short

- hand reference. Thus, the trial court’s decision to permit defense counsel to refer to VanSoestbergen as “Gus” was a reasoned one, and well within the trial court’s sound discretion in managing the trial proceeding. Accordingly, we find no abuse of discretion in the trial court’s decision to permit this short

- hand reference at trial. IV. Challenge to jury instructions Plaintiff s next argue that the trial court erred by declining to instruct the jury on wheth er Amaya was “injured by the negligence of the defendants ,” which would have included both VanSoestbergen and his employer, the Charlotte

- MecklenburgC ONNETTE V . T HE C HARLOTTE
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- Hospital Authority, which Plaintiffs contend is “the largest hospital system in the western part of the state” and a party that is “financially responsible” for any judgment against VanSoestbergen. Instead, the trial court instructed the jury to find whether Amaya was “injured by the negligence of t he defendant Gus VanSoestbergen” and then, in a separate portion of the instruction, explained that the hospital “ would be responsible for any alleged acts of negligence by Gus VanSoestbergen.” We hold that the trial court’s instruction was proper and with in the court’s sound discretion. When instructing a jury, the “ framing and wording of the issue s lies within the discretion of the trial judge.” Pittman v. First Protection Life Ins. Co. , 72 N.C. App. 428, 432, 325 S.E.2d 287, 290 (1985). “This Court revie ws jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed.” State v. Blizzard , 169 N.C. App. 285, 296

– 97, 610 S.E.2d 245, 253 (2005) . “Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entir e charge, to mislead the jury.” Id. at 297, 610 S.E.2d at 253. The trial court’s instructions were well within its sound discretion under this standard and did not mislead the jury. The factual issues to be decided by the juryC ONNETTE V . T HE C HARLOTTE
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- concerned acts by VanSoestbergen. The court properly instructed the jury on those issues. The court also instructed the jury th at “the C harlotte

- Mecklenburg Hospital Authority would be responsible for any alleged acts of negligence by Gus VanSoestbergen.” Thus, the jury properly was instructed both on the issues it must decide, and on the legal responsibility of the respective defendants. Indeed, the trial court may have rejected Plaintiffs’ proposed instruction because it could have misled the jury. Had the jury been asked to consider the negligence of the hospital itself, it may have led to speculation about acts or omissions by medical professionals involved in Amaya’s care who were not part of the claims tried in this case. Accordingly, we find no abus e of discretion in the trial court’s instructions

. V. Trial court’s instructions in response to jury questions Finally, Plaintiffs argue that the trial court erred in its answers to questions from the jury during deliberations. Again, we reject this argument

.

“ A trial court ’ s answer to a jury question is treated as an instruction to the jury .” Martin v. Pope , 257 N.C. App. 641, 648, 811 S.E.2d 191, 197 (2018) . Thus, as with the jury instruction analysis above, we review this issue for abuse of discretion, examining whether the trial court’s framing and wording left no reasonable cause to believe the jury was misled or misinformed about the law. Pittman , 72 N.C . App. at 432, 325 S.E.2d at 290
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- During deliberations, the jurors asked several questions , including some about the evidence they could consider in their deliberations. The trial court responded with the following instruction:

No. 1, the question is: Wha t is evidence? Evidence is the testimony of the witnesses and the exhibits or records that were offered into evidence. You may and should determine what evidence you believe to be

– or you believe.

. . . You may also consider any matters that you infer fro m the testimony and exhibits in the case, so long as any inference is reasonable and logically drawn from the testimony and the exhibits in the case. Plaintiff s agree that this was an accurate statement of the law and they do not assert any error in this instruction standing alone. Later in deliberations, the jury asked a specific question concerning the court’s original instruction on the standard of care. At the same time, the jury submitted a note indicating that they were unable to reach a unanimous v erdict. The court thoroughly discussed with the parties how to respond to the jury’s question. In a conversation stretching for nearly fifteen pages of the trial transcript, the parties speculated about what the jury likely was getting at with this questi on , particularly in light of the lack of unanimity. Ultimately, the trial court announced that it would simply repeat its original instruction on negligence and the standard of

care , taken from pattern jury instruction s , explaining that “I think if they li sten to what I’m telling them that that will give them the answer.”C ONNETTE V . T HE C HARLOTTE
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- Plaintiffs’ counsel then stated that “I think you made your decision. I am not in any way requesting you change that.” But counsel asked the court also to repeat the instruction , quoted a bove, that the trial court gave in response to the jury’s question about the evidence the jury properly could consider. The court responded that “I think the Court, in the exercise of its discretion, will just limit the answer to these four paragraphs whic h I believe answers what the

– what they are seeking to know.” After the jury returned to the courtroom, the trial court read the jury’s question and gave the following explanation:

What I’ m going to do is repeat a portion of the jury instructions that I think provides an answer to that question. This does not say that this section is any more or less important than any other section. It is just simply the one that appears, to me, to be most responsive to your request. The court then repeated its original instructions on negligence and the standard of care, which the parties agree were accurate statement s of the law, taken from pattern instructions. Plaintiffs contend that it was error not to also re - instruct the jury u sing the earlier instruction on evidence and inferences because, without that re

- instruction, the court was “ in effect implying to the jury that, contrary to its earlier instruction, all evidence and reasonable inferences therefrom could not be considered. ” We do not agree that the trial court’s re

- instruction created any contradiction or confusion . The trial court emphasized to the jury that the instruction it chose toC ONNETTE V . T HE C HARLOTTE
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- repeat was no “more or less important than any other.” And t he instruction it chose to repeat was accurate and directly addressed the substance of the jury’s question. Simply put, the trial court’s decision to re

- instruct in the way that it did was a reasoned one. Thus, under the narrow standard of review applicable to this issue, we cannot find that the trial court abused its discretion. Conclusion For the reasons stated above, we find no error in the trial court’s judgment

. NO ERROR

. Judge s BRYANT and BERGER concur.