IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-354

Filed: 16 June 2020

Mecklenburg County, No. 11 CVS 18175

EDWARD G. CONNETTE, as guardian ad litem for AMAYA GULLATTE, a Minor, 

and ANDREA HOPPER, individually and as parent of AMAYA GULLATTE, a Minor, 

Plaintiffs,

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 CHARLOTTEMECKLENBURG HOSPITAL AUTHORITY d/b/a LEVINE CHILDREN’S 

HOSPITAL, and GUS C. VANSOESTBERGEN, CRNA, Defendants.

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., by Janice Holmes and Christopher M. Kelly, for

defendants-appellees. 

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 nurses “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,
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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.

Plaintiffs 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 exercise 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 well, 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 trial. 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 to 
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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 makes 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, administered Amaya’s 

anesthesia. Doyle and VanSoestbergen decided to induce Amaya with a mask to avoid 

the 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 cardiac 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 able 
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to revive her, but the oxygen deprivation left her with permanent brain damage, 

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. The 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 anesthetist, and the hospital that employed 

VanSoestbergen. 

The second trial began in 2018. Plaintiffs asserted a number of negligencebased claims, including a claim that VanSoestbergen breached the applicable

standard of care by agreeing, during the anesthesia planning stage, to induce Amaya 

with sevoflurane using the mask induction procedure. Plaintiffs asserted that 

certified registered nurse anesthetists are highly trained and have greater skills and 

treatment discretion than regular nurses. Moreover, they asserted, nurse 

anesthetists 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.

The trial court refused to admit Plaintiffs’ evidence of this claim. The court 
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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 breaching 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 with sevoflurane. 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 it 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 diagnosis and treatment. Byrd v. Marion Gen. Hosp., 202 N.C. 337, 162 

S.E. 738, 740 (1932). Specifically, the plaintiff was suffering from convulsions and 

alleged that she was severely burned after the nurse placed her in a “sweat cabinet” 

or “sweating machine” as 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 1985, for 

example, this Court cited Byrd to reject a claim that a nurse owed a separate duty of 

care to the patient because any “disagreement or contrary recommendation she may 

have had as to the treatment prescribed would have necessarily been premised on a 
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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 in 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. We lack the authority to 

consider those arguments. We are “an error-correcting body, not a policy-making or 

law-making one.” Davis v. Craven County ABC Bd., 259 N.C. App. 45, 48, 814 S.E.2d 
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602, 605 (2018). And, equally important, Byrd is a Supreme Court opinion. We have 

no authority to modify Byrd’s comprehensive 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 evidence

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 

address 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 209, 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 admissible 

for illustrative purposes because the child in the video was struggling and had to be 
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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 Defendants 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 that the induction 

should have proceeded more slowly. Defendants’ expert sought to explain why the 

anesthesiology team tried to move Amaya more quickly to another “stage” in the 

process because young children, during this particular stage of induction, can become 

excitable and combative. 

So the purpose of the video was not to illustrate something 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 the 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 and an induction, sevo induction so the Ladies and 

Gentlemen of the Jury can understand your testimony?” The expert responded, “Yes.”

Similarly, the trial court emphasized this point to the jury, explaining that the 

video was “not to illustrate what transpired with Amaya, but to help you understand 
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something that can occur in the inhalation process to help you understand this

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 review 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. To 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 illustrated “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. 
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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 know 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-generated 

effects. What matters for purposes of foundation is that the expert established 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 value was “substantially outweighed 

by the danger of unfair prejudice.” They contend that the “obvious purpose” of the 

video was to incite 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 review a trial court’s Rule 403 analysis for abuse of discretion. Id. at 178, 

775 S.E.2d at 809.
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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 there were differences between the video and Amaya’s circumstances, the 

trial court addressed those by informing the jury that it was to consider the video 

solely for illustrative purposes and “not to illustrate what transpired with Amaya, 

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 not so great as to substantially outweigh the probative value of this 

illustrative exhibit. The 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 professional skill 

and authority than he actually possessed.

“The conduct of a trial is left to the sound discretion of the trial judge, and 
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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 (2009). 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 fair, 

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 

could—and did—emphasize VanSoestbergen’s knowledge and expertise to the jury, 

which 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

Plaintiffs next argue that the trial court erred by declining to instruct the jury 

on whether Amaya was “injured by the negligence of the defendants,” which would 

have included both VanSoestbergen and his employer, the Charlotte-Mecklenburg 
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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 the 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 within 

the court’s sound discretion.

When instructing a jury, the “framing and wording of the issues 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 reviews 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 entire 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 jury 
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concerned acts by VanSoestbergen. The court properly instructed the jury on those 

issues. The court also instructed the jury that “the Charlotte-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 abuse 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: What 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 from 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.

Plaintiffs 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 verdict.

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 question, 

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 instructions, explaining that “I think if they listen to 

what I’m telling them that that will give them the answer.” 
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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 above, 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 which 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 statements of the law, taken from pattern 

instructions. 

Plaintiffs contend that it was error not to also re-instruct the jury using 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 to 
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repeat was no “more or less important than any other.” And the 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.

Judges BRYANT and BERGER concur.